Patterson & Chaney
[2007] FMCAfam 1156
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATTERSON & CHANEY | [2007] FMCAfam 1156 |
| FAMILY LAW – Interim arrangements for care of children aged 3 and 2 – presumption of equal shared parental responsibility – equal time or substantial and significant time – mutual allegations of alcohol abuse – whether circumstances exist which render it appropriate for presumption not to be applied at interim stage. |
| Family Law Act 1975, s.60CC; 61DA; 65DAA |
| Goode & Goode (2006) FLC 92-286 |
| Applicant: | MR PATTERSON |
| Respondent: | MS CHANEY |
| File number: | ADC 3473 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 1 August 2007 |
| Date of last submission: | 1 August 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | John Cusack, Solicitor |
| Counsel for the Respondent: | Ms Annells |
| Solicitors for the Respondent: | Herman Bersee |
ORDERS
This matter be listed for final hearing before Federal Magistrate Lindsay in Mxxx on 17 and 18 October 2007 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
That pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the children H born in March 2004 and E born in March 2005 of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 5 October 2007.
The Family Report to deal with the following matters:
(i)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the said child/ren.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 19 September 2007.
The parties have joint equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the said children.
Each fortnight the child live with the father from 3:30pm on Friday until 7:30am Tuesday commencing on 10 August 2007 and each alternate week from 3:30pm on Sunday until 7:30am on Wednesday.
Each fortnight the children live with the mother from 3:30pm on Sunday until 7:30am Wednesday commencing on 5 August 2007 and each alternate week from 3:30pm on Tuesday until 7:30am on Friday.
The parents spend time with the children for half of each school holiday period at times to be agreed between the parties.
Each party is permitted to telephone the children at any reasonable time.
Each party to be able to attend at any child care or school or other educational institution from time to time and to have contact with the teachers and organisers of that institution.
Each party is to provide to the other details of all medical practitioners and other health professionals from time to time.
The father is restrained and an injunction issue restraining the father from consuming alcohol while the children are in his care.
IT IS NOTED that publication of this judgment under the pseudonym Patterson & Chaney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3473 of 2007
| MR PATTERSON |
Applicant
And
| MS CHANEY |
Respondent
REASONS FOR JUDGMENT
This morning I am delivering reasons for judgment in the matter of Patterson and Chaney. The matter was listed before me last on Wednesday, 1 August 2007. On that occasion, it was listed in the duty list. The duty list on that day was the busy one and, as I recall, the matter came on before me quite late in the day. I think it came on after 5.00 in the afternoon.
Mr Patterson had travelled from Mxxx by air to hear the proceedings. He had to catch a plane back to Mxxx at 6.30 that evening. In all the circumstances, I thought it better to consider the matter overnight and today I am delivering the judgment in the matter.
It is a case which turns on the application of section 61DA of the Family Law Act. This section creates a presumption which is that the parents concerned in proceeding before the court should have equal and shared responsibility for their children and wherever possible the children concerned should spend equal periods of time with their parents or substantial and significant periods of time.
In a formal sense, the parties to the proceedings are Mr Patterson and Ms Chaney. I will refer to them respectively as the father and mother in these reasons for judgment.
The parties are the parents of two children, H who was born in March 2004 and E who was born in March 2005. Accordingly, the children are about three and a half and two and a half years of age at the present time. Clearly, they are children of tender years.
The proceedings are interim proceedings regarding care arrangements for H and E. What that means is that the orders that I make today will stand only until the final hearing of the matter. They are provisional orders. I propose that the hearing of the parties' competing applications take place in Mxxx - where both parties live - later this year. I propose that the hearing be on 17 and 18 October this year.
Until the trial of the matter, the father wishes H and E to live with him and the mother for equal periods of time, and for the presumption of equal shared parental responsibility created by section 61DA of the act to be applied. Basically, he proposes the care of the children each week being split evenly between the parties.
It is the father's position that he has been a fully‑involved parent to H and E since they were born, and such an outcome is likely to be in their best interests. It is his position that such an outcome will ensure that they have a meaningful relationship with both their parents.
On the other hand, the mother's position is that H and E should live more with her than with the father, but should spend substantial and significant time with him, primarily on weekends from Friday afternoons until Sunday afternoons, and also on two shorter occasions during the week from 4 pm until 7 pm, as well as on special occasions.
In terms of the weekends, she proposes that it should be either two out of three weekends or possibly even three out of four weekends. In her contention, this will ensure that the children continue to have a meaningful relationship with both her and their father.
The mother asserts that the father has a serious alcohol abuse problem and drinks to excess most days. She is also concerned that the father has taken the children to licensed premises. It is her view that the father puts his own social and sporting interests before the proper needs of the children.
In her affidavit at paragraph 6 she says that when Mr Patterson is sober he is usually a reasonably good father. She goes on to say that she does not want to deprive the father of his time with the children but she says that when the father has been drinking he cannot stop drinking and that he neglects the children and does not adequately supervise them.
She is also critical of how the father manages his finances, particularly what he spends on alcohol each week, and does not believe that he would be able to properly support the children if there is the shared care arrangement. For those reasons, she asserts a shared care arrangement would not be in the children's best interests.
By way of the parties' current personal circumstances, it seems that the mother works in the Hospitality Industry in Pxxx. She works five shifts per fortnight. She has repartnered. Her partner has two children. The mother and her new partner are not currently living together but they spend time together from time to time. The mother is renting a home in Mxxx.
The father is a tradesman. He is employed full‑time. He owns a house in Mxxx. He is supported in his application by his mother Mrs P. She denies that the father has any alcohol problem and characterises him as an excellent father and a social drinker. Mrs P has a fairly poor view of the mother.
The father also relies on an affidavit from Mr K who supports his position. Mr K says in paragraph 3 of his affidavit that, from his observation, Mr Patterson has an exceptionally close relationship with the two children concerned and cares for them extremely well.
It is, I think, common ground between the parties that they have never married and have lived together intermittently. In the early years of their relationship, it seems that they spent two or three nights together each week. From April of 2006 they lived together, in the father's home, but finally separated on 25 February 2007.
As is frequently the case in interim proceedings, there are many disputes of fact between the parties which I am unable to resolve at this stage. These largely centre on the father's level of involvement with the two children concerned. It is the father's position that he has been closely involved in the care of the two children concerned.
He says that when the parties lived together he got up for the children during the night. It is also his position that after the parties separated, the mother was content to leave the children with him on weekends, and he says that it was frequently the case that he had the children on Saturdays, Fridays, Sunday nights and Monday nights and for fairly regular periods of time each week. It is his position that when he sought to regularise this position the mother became resistant to his proposals, presumably for some reason other than the children’s best interests.
It is his position that when the parties were living together he regularly washed the children, fed them, changed their nappies, and did all the things which a parent does for children. On the other hand, it is the mother's view that the father was only involved with caring for the children, from time to time, when she directed him to do something.
As I have already indicated, there are significant disputes about the father's alcohol use. The father characterises himself as a social drinker and, as I have indicated already, the mother says that he is a problem drinker.
On the other hand, the father in fact says it is the mother who has a significant drinking problem. He, supported by his mother, alleges that the mother suffers from some level of mental instability. He believes that the mother is only vehemently opposed to his application for shared care of the two children because it may possibly have financial implications for her.
The mother, finally, is also critical of the father as she asserts that the father has inappropriately disciplined the children. She raises allegations that the father chastised H with a wooden spoon when she soiled one of her nappies. The father denies these allegations vehemently, points to the fact that he does not have a wooden spoon, and says that he has never behaved inappropriately towards either of the children.
Having outlined these areas of dispute between the parties, it is clear that the areas of conflict between the parties are many, and it seems at this point that their positions are polarised in the extreme.
At this stage, I am not in a position to make concluded findings of fact about these matters because I have not seen either of the parties in the witness box. I have not seen either of them answering questions put to them, and so I cannot make any findings about their credibility.
All of the various issues which the parties raise about the fitness of the other to be a parent will be able to be examined in more detail when the final hearing comes on and more time is put aside for the examination of these issues.
In addition, at that stage, it is likely that there will be a family assessment which will examine the nature of the relationship between each of the children concerned and the parties in this case.
It is now necessary for me to turn to the legal framework in which this matter must be determined. The law pertaining to the making of parenting orders is set out in Part VII of the Family Law Act 1975. The act has been significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Of the amendment, the Full Court in Goode & Goode said as follows:
“In our view, it can be fairly said that there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”[1]
[1] Goode & Goode (2006) FLC 92-286
No distinction is made in the application of this legal framework to decisions made in respect of children at the interim as opposed to the final stage. In this, as in all matters to do with children, the best interests of the child concerned is the court's paramount or most important consideration.
In determining what order will best serve a child's interests, I must consider a list of matters which is set out in section 60CC of the Family Law Act. There are two tiers of considerations: firstly, matters which are considered to be primary and, secondly, those which are described as being additional.
The primary considerations outlined in section 60CC subsection (2) are as follows: firstly, the benefit to the children of having a meaningful relationship with both of their parents; and secondly, the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In this case, although both parties are critical of the other regarding their capacity to parent these two young children, there are no specific allegations of family violence. The mother, as I say, categorises the father as a reasonable father, provided he has not been drinking. The father, as I say, refutes any suggestions that he is a problem drinker, and would be prepared to abide by an injunction that he not drink when the children are in his care.
The two primary considerations are equal. Given the nature of the evidence regarding family violence, neglect or abuse in this case, it seems to me that the consideration of the children having the benefit of having a meaningful relationship with both their parents must be given some primacy in this particular case.
As I have already indicated, the structure of the act is now configured in such a way that the court is required to give considerable weight to how children may maintain a meaningful relationship with both their parents. This aim is primarily achieved by the application of the presumption in section 61DA and the mechanical means which follow from it, provided by section 65DAA.
In terms of the additional considerations set out in section 60CC(3), the children are too young to express any view. In this case, I am satisfied that the children have a significant relationship with both their parents. It cannot be said, I think, that the father has been an absent parent. The mother concedes that he has been involved with the care of the two children from time to time. Certainly he has spent periods of time overnight with the children. It is, I think, significant that the mother, in her formal position acknowledges, that it is appropriate that the two children should spend substantial and significant time with the father.
I have to consider the willingness and ability of the child's parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Clearly, as I have indicated, the positions of the parties are polarised and I suspect that both could do more to encourage better relations between the children and their parents, but in this regard I note that the separation is fairly recent and emotions are still raw.
I have to consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from their parents or other significant people. Although the evidence from others who have been involved in these children is scant, it seems that the paternal grandmother certainly is vitally interested in these two children, and has a close and loving relationship with them. I do not think that either party at this point proposes any radical change in arrangements for the care of the children concerned. The mother's position is for the children to spend a lot of time with their father.
In this case, the parties live in fairly close proximity to one another in a small country town. I do not think there are insuperable practical difficulties in terms of the children spending time with both their parents, but I will come back to those issues when I discuss the matters raised in section 65DAA.
I am not in a position at this point to make findings about the alcohol issues regarding Mr Patterson. I think there is some tension between the mother's contention on the one hand that these children can spend time on weekends and overnight with their father but not for the longer periods each week which he seeks.
The father vigorously refutes any suggestions that he is a problem drinker and is prepared to agree to not drinking. He says that he has taken the children to licensed premises for a meal, and during those visits he has drunk lemon squash.
There are no significant issues regarding family violence in this matter. In general terms, given the mother's concessions about the father being a reasonable parent and notwithstanding the father's criticisms of the mother, I think both parties are able to provide for the immediate concerns of these two children.
Pursuant to what was said in Goode & Goode, it is now necessary for me to go to the next stage in the process, after having considered the relevant section 60CC matters, and that is whether the presumption of equal shared parental responsibility should either be applied or rebutted.
The presumption is that, whenever the court makes a parenting order, it is to be presumed that the parties concerned should have equal shared parental responsibility for their child. That is the starting point.
Subsection (2) qualifies this presumption on a number of bases – namely, it is not appropriate to apply the presumption if there are reasonable grounds to believe that child abuse or family violence occurred. In this case, I do not think there are such reasonable grounds.
Pursuant to subsection (4) of section 61DA, the presumption is rebutted if evidence exists which satisfies the court that it would not be in the best interests of the child or children concerned for an order for equal shared parental responsibility to be made. As I have already observed, in the context of an interim hearing it may often be problematic for clear uncontroverted evidence to be found in regard to a child's best interests, given the abridged form that such an interim hearing takes.
However, I think in considering that aspect of the presumption, I also must bear in mind the structure and intention of the act and the guidance which has been provided to me by the Full Court in Goode & Goode, to which I have already alluded.
Accordingly, I do not think that there is evidence of sufficient cogency at this stage which would cause the presumption to be rebutted on the best interests of the children concerned, and I reach that view because of the analysis of the relevant section 60CC factors to which I have already alluded.
Finally, and perhaps pivotally in this case, pursuant to section 61DA subsection (3) which applies only at the interim stage, the court has a discretion not to apply the presumption where the circumstances are such that it would not be appropriate to do so.
The legislation does not spell out circumstances where it would not be appropriate for the presumption to be applied. In Goode, the Full Court indicated that the discretion was "not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult".
By this, I take it, the court must find from the overall circumstances of the case some cogent reason to exercise the discretion to exclude the presumption. In my view, cogent reason may arise when there are issues of family violence or neglect or abuse which, if true, potentially are likely to have very serious implications for the child concerned but those allegations are vehemently denied. In such cases, it may well be appropriate for the court to exercise caution.
In this case, for the reasons I have already provided, there are no allegations of family violence. The concerns are about the father's drinking and his disciplining of the children. He denies the discipline issue. There has been no intervention of the state welfare authorities in regard to it. The father, supported by others, denies alcohol abuse and the mother is content, notwithstanding her concerns, to allow the children to spend extended time with the father.
In all those circumstances, I do not think it would be appropriate to exercise my discretion not to apply the presumption at this stage. Accordingly, I have formed the view that this is a case where it is appropriate for the presumption of equal shared parental responsibility to be applied.
It is also of note that the mother in her response, filed 31 July, does not formally oppose that the parties have equal shared parental responsibility for the two children concerned, and I think that is a significant matter indeed.
However, the presumption itself does not determine the amount of time children spend with each of their parents. This issue is dealt with by section 65DAA. Pursuant to the section, if the court makes an order that a child's parents are to have equal shared parental responsibility for their child, it must then consider whether the child spends either equal time, and if not equal then substantial and significant time, with both his or her parents. I emphasise the word "must".
The court is required, first, to consider equal time and, if that is not thought to be in the child's best interests or to be reasonably practicable, it must then turn to substantial and significant time.
Equal time is, as the term suggests, substantial and significant time is defined by section 65DAA subsection (3), and includes days that fall on both weekdays, weekends and holidays. It is time which is calculated to allow the parent concerned to be involved in the child's daily routine and other occasions which are likely to be of particular importance to the child concerned.
The rationale underlying section 65DAA would appear to be that children benefit if they are able to interact with their parents, as much as possible, in a variety of environments and circumstances. The implication being that children benefit if their parental relationships are given depth and dimension by them being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends or school holidays.
Clearly, there may be circumstances where it is not possible for a court to make an order for either equal time or substantial and significant periods of time, simply because it will not be reasonably practicable. Pursuant to section 65DAA subsection (5), there are listed the criteria which the court must consider in determining issues to do with reasonable practicality, and I turn to those now.
The parties live in the same small country town. I do not think there are any logistical aspects of this case relating to geography which should be given weight in this matter.
I have to consider the parents' current and future capacity to implement an arrangement for the child spending either equal time or substantial and significant time with both their parents. The parties separated some time ago now. It is the father's position that initially the parties were able to manage arrangements but this has deteriorated over time. I suppose it is somewhat axiomatic that parties who come to court and ask the court to make orders in respect of their child have difficulty implementing arrangements.
I have to consider the parties' capacity in the future to communicate with one another. I am of course aware that the parties have each been highly critical of the other in their affidavit material. That, sadly, is one of the corollaries of adversarial proceedings, which tend to polarise the positions of parties.
Whether the parties are able to communicate with one another better in the future is unknown to me, but I think I must also bear in mind that I am making orders until the final hearing of this matter in October. Any order that I make is necessarily somewhat experimental at this stage, because I do not have a crystal ball to use to see what the future holds.
That leads me to the next matter for consideration: the impact that such an arrangement will have on the two children concerned, who are very young. Cases dealing with young children are often very difficult, but there is no evidence before me at the present time to suggest that either H or E have been exhibiting any untoward behaviour. I think it is also of note that the mother herself proposes substantial and significant time. As is frequently the case in matters of this kind, the parties are at loggerheads about the specific division of time between them.
Overall, Part VII of the Family Law Act requires the court actively to consider making orders for either equal time or substantial time. The task is not a tokenistic or mechanic one. The thought process required is an active one. In Goode, the Full Court found the meaning of "consider" in the context of section 65DAA, suggested a consideration tending to a result, or the need to consider positively the making of an order for equal time, if the best interests of the child were satisfied, and issues of reasonable practicality were met.
In this case, I think that an order that the children spend equal time with both their parents is likely to be in their best interests given the overall structure of the act. I am not persuaded, given the circumstances of the parties, that it would not be reasonably practical either.
In reaching that conclusion, I struggle with the mother's willingness to allow substantial and significant time but her baulking at equal time. Intellectually, it seems that issues of practicality will prevail in regard to either situation.
So for all those reasons, I have come to the conclusion that I should make orders essentially along the lines sought by the father in his amended application filed on 31 July.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Penny Smith
Date: 3 August 2007
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