Persephonos & Del'Orio

[2007] FamCA 267

FAMILY COURT OF AUSTRALIA

PERSEPHONOS & DEL’ORIO [2007] FamCA 267

FAMILY LAW - CHILD – Regime of periods of time to be spent by the father with the child – “Primacy considerations” meaningful relationship between the child and each party.

Family Law Act 1975 (Cth)

APPLICANT: Ms Persephonos

RESPONDENT: Mr Del’Orio

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1169 of 2005

DATE DELIVERED: 15 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 13, 14 & 15 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Williams & Tran

SOLICITOR FOR THE RESPONDENT: B J O’Connor

INDEPENDENT CHILDREN’S LAWYER: Ms E A Benjamin

Orders

1. In terms of paragraphs 1, 2, 3, 4, 5.1 to 5.6 inclusive, 5.9 to 5.16 inclusive, 6, 7, 10, 11, 12, 13, 14, 15, 16 and 18 of the document entitled “Proposed Minutes of the Independent Children’s Lawyer” annexed hereto.

1. In terms of paragraphs 5.7 and 5.8 of the document entitled “Proposed Minutes of the Independent Children’s Lawyer” with the additional words:

   “provided that the parties ensure that the child re-commences living with the wife no later than 9.00am on the last Saturday prior to the commencement of the new school term”.

1. In lieu of paragraph 5.17 of the document entitled “Proposed Minutes of the Independent Children’s Lawyer” as follows:

   “5.17For such alternative or further period or periods as the parties may agree upon from time to time.”

2. In lieu of paragraph 8 of the document entitled “Proposed Minutes of the Independent Children’s Lawyer” as follows:

   “8.That each of the parties shall ensure that the other party is informed of his or her current residential address, landline and mobile telephone numbers.”

1. In lieu of paragraph 9 of the document entitled “Proposed Minutes of the Independent Children’s Lawyer” as follows:

   “9.That each of the parties shall inform the other as soon as possible of any serious illness or injury which the child may suffer during the period that the child is living with him or her together with the name, address and telephone number of the relevant hospital or medical practitioner.”

1. That each of the parties is restrained from denigrating the other to or in the presence or hearing of the child and each of the parties shall ensure that no other person conducts himself or herself in that manner.

1. That on or before 22 February 2007 each of the parties shall attend upon Mr U, Family Consultant or the Manager, Child Dispute Services (Melbourne Registry, Family Court of Australia) for the purpose of obtaining a recommendation for participation and completion of an appropriate course to improve the quality of communication between the parties and each of the parties shall commence and complete such course as soon as possible and provide the other with written particulars of the name of the course, date of commencement and the date of completion.

NOTATION:

A.The father through his counsel indicated he has experienced strained financial circumstances for some time without sufficient income or financial resources to provide financial support for the child.  Through his counsel the father indicated he will commence to pay $5.00 per week and that amount will be increased in the event of an improvement in his financial position.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  MLF1169 of 2005

MS PERSEPHONOS

Applicant

And

MR DEL’ORIO

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, each of the parties seek parenting orders in relation to their child, a son born in February 2004.

2. The applicant wife in the proceedings is 41 years of age and a self-employed health professional.

3. The respondent husband is 48 years of age.  He is currently unemployed.  The husband was previously self-employed in various capacities described in his affidavits as a property developer, builder or accountant.

4. The parties cohabited for a period of approximately two and half years that commenced on their marriage which took place in November 2002 and continued until they separated in March 2005.

5. The parties have lived separate and apart from each other since early March 2005.

6. Absent evidence or information provided by counsel to the contrary, I have assumed that the marriage has not been dissolved.

7. At the time of separation the child was approximately 12½ months old.

8. The child has lived with the wife continuously since separation.  Therefore, the wife has been the child’s primary carer, which is not in dispute, for almost all of his life.

9. Since the parties separated they have been embroiled in conflict relating to financial matters, as well as the time the father should spend with the child and the circumstances in which that should occur.

10. There have been a number of interim orders made, the most significant being that made almost two years ago on 21 April 2005 which provided inter alia for an order for “contact” with the child as it was then known in favour of the father each Monday and Thursday from 9.00 am until 5.00 pm;  the father’s sister to be “in substantial attendance”;  and each alternate Sunday from 1.00 pm until 5.00 pm.

11. On the evidence before me it seems that contact has taken place.  However, there have been times when it either has not occurred due to possible illness of the child or there have been changes made, usually in acrimonious circumstances.

Issues

1. It became apparent, notwithstanding the number of factual issues that were raised in the affidavits before me, that the central issue which emerged during the course of oral evidence of the family consultant was the particular period that should elapse, in the child’s best interests, before the father had the child in his care for two periods of time which included overnight.

2. In that regard, the independent children's lawyer tendered the minutes of orders proposed by her as reflected in Exhibit 2.

3. Each of the parties supported the minutes of the orders so sought with the exception, so far as the father was concerned, as to the regime whereby an overnight period to commence this Sunday, 18 February 2007, would move to regular two overnight periods for the child to spend with him.

4. The issue in that regard is that pursuant to Exhibit 2 it is proposed the overnight period of time with the father commence (for the first occasion since the parties separated) from 1.00 pm Sunday to 5.00 pm Monday, commencing Sunday 18 February 2007 and continuing on each alternate weekend concluding on Monday 4 February 2008.

5. So far as the next overnight period is concerned, that is proposed to commence in accordance with Exhibit 2 on Saturday 23 February 2008, being from 10.00 am Saturday to 10.00 am the following Monday.

6. Those proposals are adopted by the wife through her counsel.

7. The husband, for his part, contends that it is in the child’s best interests that the second overnight period which is due to commence in accordance with paragraph 5.6 in school terms 2009 from 3.30 pm Friday to 10.00 am Saturday, commence at a much earlier period.  In addition, his proposal is that not only should the alternate weekend period commence this Sunday 18 February 2007, but there be an additional overnight period in the week in which the weekend time does not occur and that that additional period commence in about six months time.

Relevant legal principles

1. The principles upon which parenting orders are required to be made, having regard to the new Division 7 of the Family Law Act which commenced on 1 July 2006 is that the best interests of the child is the paramount consideration for the purpose of making a parenting order.  That is provided in section 60CA and to that extent continues the legislative requirement that previously existed under section 65E of the Family Law Act.  That approach has been a fundamental legal principle almost since the commencement of the Family Law Act in January 1976.

2. In addition, I am required to apply the presumption of equal parental responsibility as opposed to equal time, as set forth in section 61DA of the Family Law Act.  That presumption may be rebutted on one or other of the grounds that are set forth in the legislation.

3. In this matter, however, there is no issue between the parties that the presumption should apply in these particular proceedings.

4. Whilst I have concerns as to the practicalities of that presumption applying given that it is common ground between the parties that they have a historical difficulty in constructive communication between them, nonetheless I regard it as a sign of a better approach for the future that two intelligent, educated and loving parents consider that equal shared parental responsibility should apply for the benefit of the child.  Consequently, the appropriate order will be made in due course.

5. I am also required to consider the benefit to the child in terms of his best interests of the parents being able to participate in the care and development of the child in all of his aspects, but those matters, as earlier emphasised, are subject to the child’s best interests.

Relevant matters pursuant to section 60CC

1. For the purpose of considering what is in a child's best interests, section 60CC sets out the relevant considerations.  The two primary considerations are:

   (a)That the child is able to have a meaningful relationship with each of his parents.

   (b)That the child is protected from any physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

2. There are a number of matters which are described as “additional considerations”.

3. For the purpose of reaching my conclusions, so far as the primary considerations are concerned, it is necessary to have a factual platform for that purpose.  In that regard I intend to make findings of fact about relevant matters in relation to these proceedings, as indicated in the description of what is otherwise called “additional considerations”.  I have been greatly assisted by counsels' approach in this matter, which in my view has been sensible, proper and sensitive to the real issues in the proceedings.

4. As a consequence, neither of the parties was cross-examined about historical issues, which were certainly of much relevance at the time they occurred but no longer have the same significance, save and except that they represent a strong indicator of the difficulties of their communication for the benefit of the child against a background of severe conflict at times.

5. I have also been assisted by the Family Report dated 31 October 2006 being Exhibit 1 and the oral evidence given by its author, Mr U (who for convenience I shall refer to as “the family consultant”).

6. I will proceed then to deal with matters which require findings of fact in this matter in order to reach a conclusion as to the best interests of the child for the purpose of making an order and also having regard to the primary considerations which are earlier summarised.

Views of the child

1. It is common ground that in view of the child’s very young age, the matter of views expressed by the child are not relevant in these proceedings.

2. However, there not being any issue as to the loving relationship that the child has with each of the parents, I infer that the child, even at the age of almost three, has a desire to spend substantial time with each of the parents.

3. The question of with whom the child should live, the periods of time that should actually be spent with the father, are of course matters beyond the reasonable inferences that could be drawn for a three-year-old in these proceedings.

The child’s relationship with the parties and paternal aunt

1. As already stated, there is no issue that the child has a loving relationship with each of his parents.  Absent evidence to the contrary, I also infer the child has a fond relationship with the paternal aunt with whom the father lives given the period of time that she has been both present and undoubtedly assisted the father in the care of the child, there not being any evidence of substance before me to suggest that there is anything untoward so far as that relationship is concerned.  Indeed, no such submission was made by counsel.

The willingness of each of the parties to facilitate and encourage a relationship with the other party

1. With regard to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, that remains very much as part of the major issues to be the subject of findings.

2. The father’s case is that the mother has generally shown an unwillingness, let alone a lack of ability, to facilitate and encourage a close and continuing relationship between him and the child.

3. The mother's position is that she does not lack the requisite willingness or ability, however considers the father's approach to time to be spent with him ignores:

   (a)The age of the child.

   (b)The child's lack of experience of being overnight with the father to date.

   (c)The child being unsettled from time to time.

   (d)That perhaps it being preferable in the child's best interests for a regime to be established on a graduated basis, rather than on an immediate basis that meets the desires of the father.

4. Each of the parties in my view has some merit in their respective contentions.

5. Neither of the parties was cross-examined about that matter, it being left to the expression of views of the parties by the family consultant given that the attitude of the parties on this issue is well known.

6. The family consultant set out the parties’ respective positions, but did not draw any unqualified conclusions so far as this matter is concerned.

7. I am able to gauge the approach of the parties from the submissions made by their counsel.  Those submissions have faithfully followed the approach that each of the parties have, save and except there was some cross‑examination of the mother on this matter.

8. The mother’s approach in terms of her oral evidence was that she was concerned in relation to the various factors earlier identified as emerging from her affidavit and that she did not consider it an imperative for an immediate move to additional overnight stay with the father until there is a good development of the child being accustomed to staying overnight with the father, given that he has for some time been occasionally unsettled and is still not fully toilet-trained.

9. The conclusion reached by me is that each of the parties have a willingness and ability to facilitate and encourage a close and continuous relationship.  However, the real issue between them is the manner in which that should be achieved in the future.

10. The question of the likely effect of changing the child's circumstances including separation from either of the parties is really overlapped by the evidence and my findings in relation to the previous matter of willingness and ability to facilitate and encourage a close relationship.  Consequently, nothing is to be gained by reiterating, albeit in different words, the substance of my earlier reasons and conclusions.

The practical difficulty and expense of a child spending time with or communicating with a parent

1. The matter of the practical difficulty and expense of the child spending time with or communicating with a party is not relevant.

Capacity of the parties to provide for the needs of the child

1. This issue only arises so far as the emotional needs of the child are concerned.

2. In that regard, each party blames the other so far as conflict is concerned, it being understood that for any child, particularly a very young child, emotional needs can hardly be met if there is constant tension and pressure in the household due to continuing conflict between the child's parents.

3. The father for his part has given evidence in his affidavits of numerous courses he has attended to improve his parenting capacities as well as anger management.  I accept his evidence.

4. The mother for her part has given evidence not so much of an engagement in courses, but rather seeking at all times to meet the emotional needs of the child by encouraging regular time with the father, albeit for periods of time and in circumstances which have not always met with his approval.

5. Nonetheless, the mother has moved onto a significant change of her position in that regard by supporting the orders sought by the independent children's lawyer which provide for overnight periods the child spends with the father on a graduated basis, commencing this coming weekend, which in turn represents a significant and constructive shift in her position.

6. Consequently, I have concluded the parties do have the capacity to provide for the needs of the child.

7. I raised an issue with counsel of the father’s capacity to provide for the financial needs of the child, given his evidence that he has not been paying and currently not paying any child support whatsoever.  The implication is that the financial needs of the child have been solely met by the mother.

8. The father through his counsel indicates that he has had strained financial circumstances for some time, without sufficient income or financial resources to provide financial support for the child.  Through his counsel the father indicated that he will commence to pay $5.00 per week and that amount will be increased in the event his proposals for improvement in his financial position are successful.

9. I will make a notation of the father’s proposals in that regard at the conclusion of the orders that are made.

Family violence

1. The issue of family violence loomed in these proceedings.

2. The father admits he was violent to the mother in terms of pushing her on two occasions - albeit he claims that he was frustrated or irritated at the time due to her failure to agree to various proposals made by him, mainly  financial.  Otherwise the father denies the allegations.

3. The mother has given evidence in her affidavits of serious and extensive violent and/or abusive behaviour by the father.

4. The allegations were not tested in the circumstances to which I have earlier referred.  As a result, I am not in a position to make findings concerning violence and abuse, save and except for the admissions the father has made in his affidavit.

5. I note the father has engaged in anger management courses and hopefully he has now realised that regardless of the circumstances at the time, it is completely unacceptable to engage in violent or abusive behaviour to any person, let alone the mother, whether or not the child is present.

6. Given the approach the parties have taken with regard to the conduct of the proceedings before me and the general adoption of the proposed orders by the independent children's lawyer, this represents a constructive platform for a more productive relationship in the future, which can only be for the child's benefit.

“Primary considerations”

1. I will now move to primary considerations.

2. At the heart of the primary considerations in relation to these proceedings is the benefit to the child of having a meaningful relationship with both parents.

3. As earlier indicated, the real issue so far as the regime generally adopted by the parties set out in exhibit 2 is the date or the period that should elapse before there is a second overnight period spent by the child with the father.

4. The evidence before me in terms of assisting me in resolving this matter is principally that of the family consultant.  I accept his evidence unless otherwise stated.  It was given in a detailed comprehensive and sensitive fashion both in his report and orally.

5. The family consultant acknowledged that from his viewpoint the child has a loving relationship with the father and that the child has from time to time slept at the father's home or, on one view of it, a few hours on a Sunday and, in terms of the mother's oral evidence, for about two hours.  In his family report, being exhibit 1, the family consultant states as follows:

   “It is not so much the age of the child which is the critical element but the child's developing capacity to tolerate increased time away from the secure‑based attachment person and, secondly, the level of commitment demonstrated by the parents which generally determines whether any arrangement will work or not.”

1. The family consultant proceeds in his recommendations to come to this conclusion:

   “The time seems right for there to be a gentle move to overnight contact in the near future.  The logical way to do this seems to be by extending the present Sunday afternoon to include an overnight stay which then flows into the time [the child] has with [the father] on the Monday.”

2. The family consultant observed as follows:

   “Overnight contact is not a prize denied on the basis of bad or granted on the basis of a person's good behaviour.  It is an arrangement made with regard to the child's developmental capacity with a view to progress and develop the relationship between the parent and their child.  The [father-son] relationship has to progress.  It seems that this cannot happen with certainty if the arrangement is left as it stands.”

3. Consequently, the family consultant supported time being spent with the father on an overnight basis.  And it is clear from both his report, being exhibit 1, and as emphasised on a number of occasions in his oral evidence, that that should take place on a graduated basis. 

4. The family consultant's oral evidence was that he cannot say when the child would be ready to move to a second overnight stay within a fortnightly period.  He conceded that it is possible that might occur in about six months' time.  However, the family consultant suggested that inferentially it is in the child's best interests to see how the child did adjust, hopefully without any real problems to the overnight Sunday stay with the father.  In that regard, there would be a review of the situation not by the court but by either the family consultant or another family consultant appointed for that purpose by the Manager Child Dispute Services of the Melbourne Registry.

5. The mother's evidence, to which I have earlier referred, recognises that a second overnight period should occur.  The real issue is the question of timing.

6. The mother was clearly anxious as to when that should take place.  That view was reached by the family consultant.  There is no doubt that the mother is sincere and bona fide in her concern.  The child has been in the mother’s primary care and has been supported physically, emotionally and financially since he was 12 ½ months old.  Some regard must be paid to the sincere and genuine anxiety the mother displays.

7. It cannot be in the child's best interests for the primary carer to have anxiety which the child might be susceptible to so far as its development is concerned, not to mention the child’s ongoing relationship with the father.  The success of the latter may very well depend upon the child feeling relaxed and confident during the times spent with the father, whether during the day or overnight, if the primary carer, through her words, actions and demeanour provides suitable encouragement free from anxiety.

Conclusion

1. These proceedings are different to many other parental disputes where a parent might, on a manipulative basis, seek to create the impression of anxiety in order to frustrate the parent with whom the child might otherwise spend certain periods of time.

2. This is not such a case.

3. I accept the evidence of both the mother and family consultant, who is a highly qualified and experienced professional in his field, that the mother does have a genuine anxiety.

4. It is well established by a number of authorities over a long period of time that this is a factor to which I may give such weight as the circumstances permit.  In this particular case I attach significant weight.

5. What must be considered is both the long-term as well as the short-term effects of orders that may be made.

6. Here the child is only very young and about to turn 3 years of age.  The very nature of the child's age and continued good health means that his needs and activities will constantly change, which in turn requires some flexibility, sensitivity and commonsense by the parties to accommodate them;  not so much on the basis of adding up the number of days or hours that a child spends with a parent but rather adjusting those periods in the child's best interests.  The hope has been expressed that with finality in these proceedings, the parties can move on to focus on what will best suit the child, rather than on past grievances and disagreements.

7. When making orders that are in the best interests of a child, it is my view that risks should be reduced or eliminated rather than conducting a trial or an experiment with a situation in the hope that it will prove to be beneficial.

8. It is impossible to provide a guarantee as to how parties will react with each other, let alone how a child will progress in the foreseeable future.  To that extent orders must be made which are in the best interests of the child, reflecting the evidence before me.

9. The court cannot provide a structure as to how people should lead a responsible life.  There comes a point when parties must assume direct responsibility and to co-operate rather than always turning to a court or family consultant to deal with issues involving their child for which they should accept constructive responsibility.  Hopefully, that will now be the case with the parties in these proceedings.

10. I will make an order which provides for flexibility of arrangements should the more specific orders no longer be suitable to meet changed circumstances.

11. There is a history of animosity and allegations by one party against the other, not to mention the tension and conflict that has undoubtedly created.  As previously indicated, I am not in a position to make findings of fact about the whole range of allegations.  However, I will make an order which prevents the parties from denigrating the other in the presence or hearing of the child and that they also be required to use their best endeavours to ensure that no other person conducts himself or herself in that fashion.

12. I have concluded that it is in the best interests of the child to make the orders as sought by the independent children's lawyer.  It provides a graduated regime of increasing periods of time spent by the child with the father.

13. In my view, although this approach may be regarded as conservative, it principally reflects the evidence given by the family consultant to which I have referred and attached much weight.

14. It also takes into account the age of the child, the fact that the mother has been the primary carer in all respects since the child was only 12½ months of age and her genuine anxiety concerning a regime which provides for more frequent overnight periods with the father taking place at an earlier time than as reflected in Exhibit 1.

15. The parties will be free to make alternative arrangements, which might even include more accelerated overnight periods, should each of them feel confident that it is in the child's best interests to do so.

16. I will also make an order which provides for the parties to consult the family consultant or family consultant nominated by the Manager Child Dispute Services, Melbourne Registry.

17. The matter of constructive and helpful communication between the parties needs to be addressed.  I will make appropriate orders for taking part in a relevant course.  Otherwise, communication will be reflected by way of a communication book.  Hopefully the parties will reach the point where such an aid is no longer required and they can speak to each other in a civil and constructive way for the benefit of their child with recriminations.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  29 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PERSEPHONOS & DEL’ORIO