Parmentier and Yates

[2017] FamCA 994

FAMILY COURT OF AUSTRALIA

PARMENTIER & YATES [2017] FamCA 994

FAMILY LAW – CHILDREN – PARENTING – Interim – Where the father seeks extended time with the child, almost aged two – Where there is an issue as to which parent has been the child’s primary caregiver – Orders made for the child to spend two days and one night with the father per fortnight and on special occasions – Order made that the matter not be listed again until the parties can demonstrate they have made a genuine attempt to solve the dispute by family dispute resolution or mediation.

Family Law Act 1975 (Cth) s 60I

APPLICANT: Mr Parmentier

RESPONDENT: Ms Yates

FILE NUMBER: SYC 5932 of 2017

DATE DELIVERED: 6 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weightman

SOLICITOR FOR THE APPLICANT: Mills Oakley

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

IT IS ORDERED, UNTIL FURTHER ORDER

1. That the child B born … 2016 live with the mother.

2. That the child spend time with the father as follows:

   (a)Each Wednesday from 8.00 am until 5.00 pm;

   (b)Each Friday from 8.00 am until 9.00 am Saturday;

   (c)       On Fathers’ Day from 9.00 am until 5.00 pm each year;

   (d)       From 9.00 am until 4.00 pm on Christmas Day;

   (e)       From 8.00 am until 5.00 pm on the child’s birthday;

   (f)       From 9.00 am until 5.00 pm on Easter Sunday;

   (g)       At other times as may be agreed between the parties.

3. That for the purpose of these orders all changeovers are to be effected at McDonalds Family Restaurant at Suburb C.

4. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED

1. That this matter shall not be further listed until such time as the parties provide evidence of having made a genuine attempt to resolve their issues in family dispute resolution or mediation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parmentier & Yates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5932/2017

Mr Parmentier

Applicant

And

Ms Yates

Respondent

REASONS FOR JUDGMENT

1. The application before the Court relates to the parenting arrangements for B (the child), who was born in 2016, and is not yet two years old. This is the second time in the child’s young life that the Court has considered his parenting arrangements.

2. Mr Parmentier (“the father”) and Ms Yates (“the mother”) lived together between June 2015 and 19 August 2017. The mother’s son D was also a member of the household.

3. The father asserts that their relationship ended on 29 January 2017, but they did not physically separate until the mother moved out of the house with the child on 19 August 2017.

4. The child’s older sibling, D, was born in 2008, and is now nine years old. The mother and D’s father separated in about 2010, and they have an amicable parenting arrangement whereby D lives with the mother in week 1 from after school on Monday until he goes to school on Wednesday, and in week 2 from the conclusion of school on Friday until he goes to school the following Thursday.

5. The mother deposed “[D] and the child have a very close bond. [D] is doting towards [the child] and at times he feeds him, assists with his care and plays with him…”

6. It is the father’s case that he was the primary carer for the child for the majority of his life, including the period both before and after the mother returned to work on 30 January 2017. The mother disputes the father’s assertion as to the child’s primary care. The mother did not work for a year after the child’s birth. The father worked full time between 20 July 2016 and 16 December 2016.

7. That issue cannot be determined on the basis of the material before me but it is undisputed that since 28 August 2017, the child has lived in the primary care of the mother. Given the child’s very young age, that is a significant period of time. It is likely that his primary nurturing relationship, at the present time, is with the mother.

8. The father filed an application seeking parenting orders on 11 September 2017. That matter came before the Court, in a duty list, on 9 October 2017. On that day, the parties were ordered to attend for an intake interview for the Child Responsive Program, which was to take place on 8 November 2017, and orders were made, pending further order, that the child would spend time with the father each Wednesday from 8.00 am until 5.00 pm, and each Friday from 8.00 am until 9.00 am Saturday.

9. When the matter came before me on 4 December 2017, those orders were on foot.

10. When the matter was before the Court on 9 October 2017, no certificate had been filed pursuant to section 60I of the Family Law Act 1975 (Cth) (“the Act”) and that certificate was not in fact filed until it was tendered in Court before me on 4 December 2017. The certificate, dated 16 November 2017, stated that the father “did not attend family dispute resolution with me and the other party or parties to the proceedings because I consider, having regard to the matters mentioned in subregulation 25 (2), that it would not be appropriate to conduct the proposed family dispute resolution.”

11. The mother’s solicitors wrote to the father on 28 August 2017, making a proposal in relation to parenting arrangements for the child, and specifically inviting the father to participate in family dispute resolution. The father responded on 29 August 2017, indicating the mother’s proposal was unacceptable. The father proposed that the child live with him in week 1 on Monday and Tuesday night and on Friday, Saturday and Sunday night, and in week 2, on Monday and Tuesday night. At that time, the child was about 20 months old.

12. The father specifically did not respond to the mother’s invitation for family dispute resolution.

13. The solicitors for the mother wrote again to the father on 29 August 2017, stating, inter alia:

    It is clear that the difference in proposals should be discussed further, and in more detail, as between you and our client within the context of Family Dispute Resolution. Our client will make enquiries with an appropriate provider and will make arrangements for the Family Dispute Resolution process to commence.

14. The father filed his Initiating Application on 11 September 2017, without, apparently, any contact with the family dispute resolution service.

15. In his affidavit in support of his application, the father deposed:

    While I remain willing and intend to complete the Family Dispute Resolution process and attempt to reach a parenting arrangement with [the mother] by consent, by virtue of [the mother’s] recent actions in unilaterally withholding [the child] from spending time with me for no valid reason I do not have faith that [the mother] and I will be able to reach any consensus regarding [the child’s] care.

16. The parents met with the Family Consultant on 16 November 2017. At that time the Family Consultant noted that “Both parents indicated that they would like to have a positive co-parenting relationship in the future and both consider that this would be a benefit to the child.”

17. It is appropriate that they be given the opportunity, with professional assistance, to explore ways of re-establishing that parenting relationship which they both acknowledge would be in the child’s best interests.

18. The purpose of section 60I of the Act, is to ensure that all people who have a dispute about parenting matters make a genuine effort to resolve that dispute by family dispute resolution before commencing proceedings.

19. Whilst it may have been the case that, when the mother was refusing to facilitate time between the child and the father unless he agreed to orders, there was some urgency in having the matter before the Court, however that urgency was removed when orders were made on 9 October 2017. After that date there were no reasons why the parties could not have attempted to mediate their dispute with the assistance of a family dispute resolution practitioner.

20. They have not done so and the matter should not proceed any further until they do.

21. The orders which were put in place on 9 October 2017 ensure that the child has regular and significant time with his father, sufficient to ensure that a meaningful relationship between them is maintained until such time as the matter can be determined with the assistance of expert evidence and cross‑examination. The regime in place also provides the child with a stable platform from which his attachments with his parents, and with D, will not be disrupted.

22. I propose, however, to deal with the competing proposals in relation to special occasions, especially Christmas.

23. The father sought an order that the child spend seven days and nights with him commencing on 23 December 2018 (with the effect that he would not spend any time with his mother over the Christmas period) and that he spend time with him on the child’s birthday from 5.00 pm on the day before the birthday until 9.00 am on the day after the birthday, again not spending the period of the child’s birthday in the care of his mother. The father’s proposal, that this child of less than two years of age, spend seven days away from his current primary carer, is unrealistic and gives rise to concerns about the father’s understanding of the needs of a child of this age.

24. The mother’s proposal is that the child spend time with each parent on Christmas Day and on his birthday.

25. I propose to make orders as sought by the mother in relation to those special occasions.

26. Otherwise, the orders made on 9 October will be unchanged.

27. One of the orders which the mother sought was an order for the appointment of a single expert. The mother indicated that Dr E was available to see the family and to produce a report within the near future. I do not intend to make that order.

28. The proceedings were commenced in September 2017. It is highly unlikely that the matter will come to hearing before 2020, by which time any report which Dr E produces early in 2018 will be of little benefit to the Court. If the parties were, however, able to agree to take advantage of Dr E’s great expertise and engage her for the purpose of assisting them to resolve their dispute, that might well be a decision which would ultimately be in the child’s best interests.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 December 2017.

Associate:

Date:  6/12/2017