PARKSON & PARKSON
[2015] FCCA 1750
•22 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARKSON & PARKSON | [2015] FCCA 1750 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the child – parental responsibility – equal shared parental responsibility – one child – girl aged 2 years 7 months – overnight time with the father – graduated program increasing after 1 January 2016. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR PARKSON |
| Respondent: | MS PARKSON |
| File Number: | SYC 7826 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 16 June 2015 |
| Date of Last Submission: | 16 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Crawford |
| Solicitors for the Applicant: | Crawford Ryan Lawyers Pty Limited |
| Solicitor for the Respondent: | Mr Ndou |
| Solicitors for the Respondent: | Bazzi Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2012.
The child X is to live with the Mother.
Up to and including 31 December 2015 the child X is to spend time with the Father:
(a)From 9:00am to 5:00pm each Wednesday; and
(b)From 9:00am on Sunday of each week until 9:00am the following Monday; and
(c)From 2:00pm on Christmas Day until 5:00pm on Boxing Day.
From and after 1 January 2016 until the child X commences school she is to spend time with the Father:
(a)From 9:00am on Tuesday of each week until 5:00pm on Wednesday;
(b)From 9:00am on Sunday of each week with the exception of Mothers’ Day until 9:00am the following Monday;
(c)From 2:00 pm to 5:00 pm on the child’s birthday; and
(d)From 4:00pm on Christmas Eve until 2:00pm on Christmas Day.
Upon X commencing school and during school terms she is to spend time with the Father:
(a)From 9:00am on Sunday until the commencement of school on Monday;
(b)From immediately after school on Wednesday until the commencement of school on the following Thursday;
(c)For half of each school holiday period at times to be agreed upon between the parties and, failing agreement, for the first half in even numbered years and for the second half in odd numbered years, and for the purpose of calculating the length of the school holiday period, such holidays will be deemed to commence at 9:00am on the day immediately following the cessation of classes and end at 5:00pm on the day immediately prior to the recommencement of classes; and
(d)At such other times as the parties may agree.
The child X will spend time with the Father from 9:00am. on Fathers’ Day until the commencement of school on Monday.
Notwithstanding the provision of any other Order, the child X will spend time with the Father from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in even numbered years and from 2:00pm on Christmas Day until 5:00pm on Boxing Day in odd numbered years.
The child X will spend time with the Mother:
(a)On Mothers’ Day from 9:00am to the commencement of school the following morning;
(b)From 5:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years and from 2:00pm on Christmas Day until 5:00pm on Boxing Day in even numbered years; and
(c)On the Mother’s birthday from 9:00am to 5:00pm.
For the purposes of implementation of these Orders the Father is to collect the child from the Mother’s residence at the commencement of the child spending time with him and the Mother is to collect the child from the Father’s residence or from school at the conclusion of the child spending time with the Father.
In the event that the child is hospitalised or is receiving medical attention at a hospital or the child receives an injury which requires immediate treatment the parent with whom the child is living or spending time must notify the other parent forthwith or as soon as reasonably practicable thereafter of the child’s treating hospital, medical practitioner or health care provider.
Both the Father and the Mother are to do all such acts and things and sign all documents as shall be necessary so as to authorise all medical practitioners or health care providers who may treat the child from time to time with irrevocable authorities enabling the other parent to discuss the care of the child or provide information about the child.
Each parent is to do all such acts and things and give irrevocable authorities necessary to ensure that each parent receives from whichever school the child may attend from time to time copies of the child’s school reports, merit cards and any written material pertaining to the child’s academic and extracurricular activities and further to provide such information including school newsletters and information about school photographs as may be issued by the school to parents of children attending that school.
The Father and Mother are to sign Applications for an Australian passport for the child.
If either the Father or the Mother wishes to take the child out of Australia for the purpose of a holiday he or she must notify the other party at least four weeks before the proposed date of travel and supply an itinerary, details of flights and accommodation and telephone contact numbers.
The Father is to make arrangements to attend a parenting after separation course and provide information to the Mother’s solicitors of his enrolment in such a course within one (1) month from the date of these Orders.
The parties are restrained from using abusive or critical language towards each other in the presence or hearing of the child.
IT IS NOTED that publication of this judgment under the pseudonym Parkson & Parkson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7826 of 2014
| MR PARKSON |
Applicant
And
| MS PARKSON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders by the Father of a little girl called X, who is two years and seven months old. X was born on (omitted) 2012.
The parties commenced living together late in 2009. They were married on (omitted) 2011 and they separated in March of 2013. Since then they have been living separately, and X has been primarily residing with her mother. There have been arrangements made between the parties for the Father’s time with X. However, there are still issues between the Mother and the Father which have led to, on the Father’s case, the Mother reducing the Father’s time with this little girl from Sundays, Tuesdays and Wednesdays down to one day per week.
Child Dispute Conference
The parties have attended a Child Dispute Conference with a family consultant. That took place on Monday the 15th of this month, and a Child Dispute Conference Memorandum to Court was released that same day. The family consultant looked at the issues in dispute and noted that the parents had agreed to X spending another day with her father as an interim measure, but the introduction of overnight time and arrangements for final orders remained unresolved.
The family consultant did not identify any risks of physical harm to the child or any drug and alcohol issues or any mental health issues. She noted an allegation by the Mother that the child is at a risk of serious psychological harm in the Father’s care, because she alleges that the Father has yelled abuse and sworn at her in the child’s presence. She is of a belief that the Father’s parenting skills are limited, and as a result the child would be at risk of neglect in his care. She also alleges that in the past the Father has threatened to take everything from her, including the child.
The family consultant noted, rather sadly perhaps, that the co-parenting relationship appears to have deteriorated since September 2014 and speculated that that was possibly related to the financial and property dispute. There seems to be some support for the view. I noted with interest the family consultant’s stress on the importance of frequency of contact with the Father in light of X’s age and stage of development, bearing in mind she is two years and seven months of age. The family consultant also noted the need to protect X from exposure to conflict between the parents and from any hostile response that either parent might have to the other.
The family consultant also identified the issue of who should care for X in the event that either party is working and whether it is more in the child’s interests for her parenting arrangements to include a regular pattern of time with the Father in addition to working around the Mother’s roster, or whether her interests are better served by having her arrangements to spend time with the father coinciding with the Mother’s work roster, and the family consultant saw advantages and disadvantages to both.
Orders Sought
I look at the positions of the parties as put to the Court by their respective legal advisors. The Father seeks interim orders that are more extensive than those that the Mother considers to be appropriate. Whilst there is agreement between the parties that X would live with the Mother, the time that the child spends with her father is a matter of dispute, although each parent agrees in principle with the concept of a graduated increase.
The Father’s position is that there should be a three stage set of orders: first, going up until X is three years of age, then from X’s third birthday on until the child commences school, and the third step being after the child commences school. Now, bearing in mind that this little girl is only two years and seven months of age, it would be fervently hoped that final parenting orders would have been arrived at well before this child is due to commence her schooling.
The Father’s present view is that until X is three years of age, that there should be one overnight period from 9 o’clock on Tuesday to 5:00pm on Wednesday, and another day, being each Sunday. That time would increase from the child’s third birthday, sticking with Tuesday morning to Wednesday afternoon arrangement but adding an extra night on the Sunday, so that the time would be from 9:00am on the Sunday until 9:00am on the Monday morning, and there should be school holiday times. The Father proposes an increased period of time after that.
The Mother, in view of the claims she makes about the Father’s abusive behaviour, or at least verbally abusive behaviour, and her concerns about what she says is his lack of parenting skills, is proposing orders which would impose the completion of a parenting course by the Father as a precondition to his spending time with X in the orders she proposes in her response.
The times that she does propose are during the day on Wednesdays from 9:00am till 5:00pm; on Sundays from 9:00am overnight until 9:00am on Monday; and then the response states the Mother is in agreement with paragraphs 3(c), 3(f), 4, 5, 6, 7, 8 and 9 of the orders sought in the Father’s initiating application. It is regrettable that the parties were not able to come to some agreement to resolve that issue, but the gap between them apparently remains too wide. The Mother also wants to get a passport for the child and looks at being able to take X on an overseas holiday.
Applications for Interim Parenting Orders
When dealing with interim parenting applications, the Court, of course, is bound by the somewhat truncated process of an interim hearing as referred to by the Full Court of the Family Court in Goode & Goode[1]. One of the difficulties is that the Court is usually not in a position to make a definitive finding of fact when there are disputed factual issues. The Court has various sections of the Family Law Act 1975 (Cth) which it must look at when dealing with parenting orders:
a)section 60B, setting out the objects and principles of Part VII of the Act;
b)section 60CA, prescribing that the best interests of the child must be regarded as the paramount consideration; and
c)section 60CC, which sets out the way in which the Court determines what is in the child’s best interests.
[1] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Section 61DA looks at the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility, but also sets out the circumstances in which that presumption does not apply, and also provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the presumption to apply.
If the presumption is found by the Court to apply and the Court makes an order that the parties should have equal shared parental responsibility, the Court must then consider the requirements of section 65DAA of the Family Law Act 1975 to consider whether it is both in the child’s best interests and reasonably practicable for the parties to have an equal time arrangement, or whether it is both in the child’s best interests and reasonable practicable for the parties to have substantial and significant time with the child.
Section 60CC, as I said, sets out the way in which a Court determines what is in a child’s best interests. The primary considerations are found in subsection (2). The additional considerations are found in subsection (3). Not all of them will be relevant, and certainly not all of them are relevant in this case. As an example, the Court is required under paragraph (a) of subsection 60CC(3) to consider the views of the child and the weight that should be given to those views. This little girl is two years and seven months of age. Whatever her views may be, I am not persuaded that I should give any weight to the views of a little girl of that age.
However, the primary considerations in subsection (2) are important. At paragraph (a) of s.60CC(2), the Court looks at the benefit to the child of having a meaningful relationship with both parents, and under paragraph (b) of the subsection the Court looks at the need to protect the child from the risk of physical or psychological harm due to being subjected to or exposed to abuse, neglect or family violence. Often parenting orders, particularly interim orders, involve a rather delicate balance of those two considerations.
Conclusions
With a child as young as this child, it is clear that there is a benefit to her of spending regular time with her father. She is living with her mother who is her primary caregiver, and there is no suggestion that that arrangement will change. The family consultant adverted in her report to the benefit of the child having regular and frequent time with her father. That does not mean that that the time necessarily needs to be lengthy, but there should be occasions when X knows that she is going to be spending time with her father, and at the end of that time she knows that she will then be returned to the care of her mother. The advantage of such an arrangement is that this will give this little girl stability. It will enable her to build up an attachment to her father, and as she develops the amount of time can be increased and, indeed, both parties have accepted the advice of their legal advisers that there should be a graduated programme.
Of course, the Court must consider the need to protect the child from harm. It is not suggested that she is at any risk of physical harm. The mother has expressed a concern about psychological harm due to the father’s behaviour, and possibly harm to the child from some degree of neglect because she is not entirely convinced of the father’s parenting skills. That is why she seeks to impose the completion of a parenting course as an essential pre-condition to the child spending time with the father. I am not persuaded that this is necessary. That does not mean that a parenting after separation course would not be a good idea, far from it.
Indeed, it would be a good idea for the father to attend a parenting after separation course, but to impose a requirement that the father has to go off to do the course before he spends any time with his daughter seems to me to delay the process of his developing an attachment with the child or her attachment to him, and could have a regressive effect. He has been spending time with this child. It may not be perfect. It may not meet the Mother’s expectations, but there is an ongoing relationship, and it needs to be fostered, but it needs to be fostered in a way that is safe for the child. There will be a requirement for a parenting course. I see no reason why this child should not have a passport.
It appears to be a consent position between the parties that X can travel with a parent on a holiday out of Australia. What I am doing though is comparing the proposals of the two parties as to the time that X spends with the Father. In my view, the Father’s orders that he seeks are possibly over generous at this stage, whilst, and in some respects the Mother is offering more time early on than the Father seeks, but there does need to be a build-up of that time, possibly a little bit more than the Mother would really like. However, the Court is not bound by the proposals of each party.
The Court is required to make orders that are in the best interests of the child, and that may involve a different set of orders that neither party proposes. It may involve an amalgam of the proposals. As I think I indicated on the last occasion, if the Court proposes to come up with something completely out of left field then procedural fairness would require that it be raised with the parties during the hearing. I do not propose to come up with something unexpected. I do propose to make orders for graduated and certain time for the Father to spend with his daughter which will increase.
In my view, orders should be made to cover the situation from now until the end of the year when there can indeed be an increase of time, and there should be further time once the child commences school. I shall read these orders onto the record.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 25 June 2015
Key Legal Topics
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Family Law
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