PETERS & VANCE

[2015] FCCA 1711

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETERS & VANCE [2015] FCCA 1711

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – equal shared parental; responsibility – whether father’s time with child should continue to be supervised – changeovers – overseas travel – child’s birth certificate – father’s name to be recorded on child’s birth certificate – travel – where mother permitted to take child out of Australia for a holiday in (country omitted) – car seat to be installed.

Legislation:
Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 61DA, 62G, 65DAA, 65Y

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS PETERS

Respondent: MR VANCE

File Number: SYC 7591 of 2013

Judgment of: Judge Scarlett

Hearing date: 12 June 2015

Date of Last Submission: 12 June 2015

Delivered at: Sydney

Delivered on: 12 June 2015

REPRESENTATION

Solicitor for the Applicant: Ms Court

Solicitors for the Applicant: John Spence & Associates

Respondent: In Person

ORDERS

1. All previous parenting Orders are discharged.

2. The child X born (omitted) 2011 is to live with the Applicant Mother.

3. The parties are to have equal shared parental responsibility for the care, welfare and development of the said child X.

4. The Respondent Father is to spend time with the child X as follows:

   (a)For a period of two (2) hours at Catholic Care Contact Service at (omitted) on Saturday 20 June 2015 and Saturday 4 July 2015; 

   (b)Thereafter until 31 October 2015 for a period of three (3) hours each alternate Saturday at the father’s residence, commencing on Saturday 8 August 2015;

   (c)From and after 14 November 2015 for a period of six (6) hours at the Father’s residence from 9:00 am to 3:00 pm or such other times as the parties shall agree;

   (d)From 9:00 am to 12 noon on Fathers’ Day;

   (e)From 9:00 am to 12 noon on Christmas Eve;

   (f)For a period of three (3) hours on the child’s birthday; and

   (g)For a period of three (3) hours on the father’s birthday.

5. Changeover where the child goes from the care of one party to the care of the other in accordance with these Orders is to take place at Catholic Care Contact Service at (omitted) or such other place as the parties shall agree in writing.

6. The parties are to pay the fees for the Catholic Care Contact Centre in equal shares.

7. The Father is restrained from consuming alcohol during any time he spends with the child X or for twelve (12) hours beforehand.

8. The Father is permitted to bring either or both of his mother and his brother Y with him on occasions when he is spending time with the child in accordance with these Orders.

9. The Mother is permitted to take the child X (a male) born (omitted) 2011 out of Australia for the purpose of a holiday in (country omitted) between 11July and 2 August 2015 and Order (4) above is suspended between those dates.

10. The Mother must return the child X to Australia no later than 3 August 2015.

11. The Father must arrange to have an age-appropriate car seat installed in his motor car for the use of the child no later than 8 August 2015 and ensure that the child is properly restrained in the seat at all times when the child is travelling in the car.

12. The Mother is to inform the Father of the name, address and telephone number of the child’s usual treating medical practitioner within seven (7) days.

13. Each party must inform the other as soon as reasonably possible if the child becomes sick or injured at any time whilst he is in their respective care in accordance with these orders.

14. Each party must advise the other of any change of their residential address, telephone number or email address within forty-eight (48) hours of such change occurring.

15. Upon the child commencing school in the first school term of 2016 the parties must ensure that the names of both the mother and the father are recorded on the records of the school as people to contact in an emergency.

16. Each parent is entitled to receive from the child’s school copies of school reports, school newsletters, information about school photographs and other communications normally sent to parents of children attending the school.

17. Each parent is entitled to attend parent-teacher interviews, school sporting events, special assemblies and all other activities at the child’s school to which parents of children attending the school are normally invited.

18. The Mother and Father are to do all things necessary to provide to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales all necessary information to permit the Registrar to record the name of the Father on the particulars of the child’s birth.

19. The parties are restrained by injunction from using any critical or offensive language to the other in the presence or hearing of the said child X or permitting third person to do so.

20. The matter is adjourned to 7 September 2015 for call-over at 10:00 am.

IT IS NOTED that publication of this judgment under the pseudonym Peters & Vance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 7591 of 2013

MS PETERS

Applicant

And

MR VANCE

Respondent

REASONS FOR JUDGMENT

1. This is an Application by the mother of a little boy called X, who is four years old, for interim and final parenting orders.  X was born on (omitted) 2011 and lives with his mother.  By her Amended Application filed on 24 April 2014, the mother seeks interim orders that:

   a)X should live with her;

   b)She should have sole parental responsibility for him;

   c)The father should spend time with the child at CatholicCare Contact Service at (omitted) for two hours each alternate week;

   d)The father should undertake a parenting after separation course;

   e)The father should undertake a course nominated by her in relation to the child’s treatment and diet in relation to his allergies;  and

   f)That neither party should denigrate the other in the presence or hearing of the child or allow any third party to do so.

2. The father, who was not represented, has not filed a Response to the Amended Application but he has filed a Response to the original application.  In his Response he seeks orders that:

   a)The parties should have equal shared parental responsibility for X;

   b)X should live with his mother;

   c)The child should spend time with him until he is three years and six months old, which has already passed:

   i)from 10 am to 4 pm each Sunday;  and

   ii)from 5 pm to 8 pm each Wednesday.

   d)Once X has attained the age of three years and six months until he commences school, he should spend time with him:

   i)each alternate weekend from 5 pm on Friday until 5 pm on Sunday;

   ii)from 5 pm to 8 pm on each Wednesday;

   iii)from 2 pm on Christmas Eve until 2 pm on Christmas Day in odd numbered years;

   iv)from 2 pm on 23 December until 2 pm on Christmas Eve in even numbered years;

   v)from 1 pm until 7 pm on the child’s birthday;

   vi)from 5 pm on 28 January until 5 pm on 29 January each year;

   vii)from 9 am to 5 pm on Father’s Day;  and

   viii)for two separate periods each week during the school holidays each year.

3. The father also seeks orders for the child to spend time with him after he commences school, which will be at the beginning of 2016.  He also seeks orders about such issues as medical treatment.  He proposes that changeover should take place at the parties’ residences.  The father has also raised at the hearing this morning issues about the child’s birth certificate and matters relating to the child’s school.  There are interim consent orders in force made on 29 April 2014.  They provide:

   (1)That the child, X, should live with the mother;

   (2)That the father spend time with the child at CatholicCare Contact Service in (omitted) for two hours each alternate weekend;

   (3)That the parties register and participate in the intake assessment for CatholicCare within seven days;

   (4)Each party pay equally the cost of a contact centre;

   (5)That the father undertake a parenting after separation course;

   (6)That the father undertake a course nominated by the mother in relation to the treatment and diet of the child in relation to his allergies.

   (7)That neither party denigrate the other in the presence or hearing of the child or allow third parties to denigrate the other party in the presence or hearing of the child;  and

   (8)That the mother provide such food and drinks as may be required by the child during the father’s time with the child at the centre.

4. The parties have attended a Child Dispute Conference with a Family Consultant under the provisions of section 11F of the Family Law Act 1975. A Family Report has been prepared by a Regulation 7 Family Consultant, Dr J, under the provisions of section 62G of the Family Law Act 1975.  That report, dated 20 April 2015, has been released to the parties.  The proceedings before the Court are for interim orders leading to a final hearing.  It is likely the final hearing will take place on a date yet to be fixed in the first half of the new year and I propose to make an order, once I have made parenting orders today, for the matter to be placed in a callover list which will be schedule for 10 am on Monday, 7 September. 

5. For the proceedings before the Court today, the mother has relied on an updated affidavit, affirmed and filed on 11 June 2015.  She also seeks to rely on the Family Report and on material subpoenaed from the child care centre.  The father relies on his affidavit sworn on 28 April 2015 to which he annexes copies of the earlier orders which he sought in his response.  I have heard submissions from the solicitor for the mother and from the father in person.  The mother has attended court accompanied by her father, the child’s maternal grandfather and the father has attended court accompanied by his brother. 

Applications for Parenting Orders

1. These are interim parenting proceedings. When dealing with parenting proceedings, the court must have regard to matters contained in sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975. Section 60B sets out the objects and principles of Part VII of the Act. Section 60CA provides, as I reminded the parties this morning, that when making a parenting order the court must regard the best interests of the child as the paramount consideration. Section 60CC sets out the matters to which the court should have regard when determining what is in a child’s best interests and that includes the primary considerations under subsection 60CC(2) and the additional considerations under subsection 60CC(3) of the Act.

2. Section 61DA of the Act deals with the question of equal shared parental responsibility and the presumption, in subsection (1) that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That section does not apply in cases of family violence under subsection (2) and may be rebutted by evidence which satisfies the court that it is not in the best interests of the child for there to be equal shared parental responsibility.

3. Subsection (3) of section 61DA sets out that it is the usual course on an interim proceeding that equal shared parental responsibility would be the usual order to be made subject, of course, to the matters in subsections (2) and (4). Section 65DAA applies where there is an order made for equal shared parental responsibility and requires the court to consider whether it is in the best interests of the child and reasonably practicable for the parties to have equal shared care of the child or to have substantial and significant care of the child. All of these matters, where relevant, have been considered.

Evidence and submissions

1. At this stage, it is useful to consider the evidence relied upon.  In her affidavit of 11^th of this month, the mother deposes that since the orders were made by consent on 29 April last year, the child, X, has been spending time with his father at the CatholicCare Contact Centre at (omitted).  She has observed the child being reluctant to go to spend time with his father and will resist getting into the car and becomes withdrawn, although it does appear that once the child has commenced attending the contact centre and has been spending time with the father, that he appears to have a good time. 

2. The mother deposes that X does not refer to the respondent as dad and had referred to him as “the other grandfather”, although she says that she has attempted to explain to the child that the Respondent is his dad and she had noticed that the little boy has started calling her father, dad, but she has attempted to discourage him from this and tell him that her father is in fact the child’s grandfather.  The mother is of the view that X is not ready to move from the centre at this stage, noting a variety of material that has been produced from the centre about X seeming to feel angry, frustrated and overwhelmed;  asking when the mother was returning;  appearing to be anxious;  and generally showing some signs of unease. 

3. The mother is also of the view that the father is not yet ready to take full responsibility to look after the little boy and has pointed out there have been some occasions where he has needed to be reminded of how to look after his child.  It is a matter of some importance to the mother that two members of the father’s family were to have their first visit at the contact centre.  These people are the paternal grandmother, i.e., the father’s mother, and the child’s uncle, the father’s brother, Mr Vance. 

4. Mr Vance has attended court today to support his brother and has informed the court that he now has become the father of a little boy called Z, who was born two weeks ago and is, therefore, a cousin to the subject child, X.  The mother was concerned that on one occasion when the extended family members visited, that the child became distressed and the visit had to be cut short.  It is also a part of the mother’s case that she has made arrangements to travel with the child and her parents in July and early August for a family reunion which is to take place in (country omitted). 

5. I am aware that (country omitted) is a party to the Hague Convention on the Civil Aspects of International Child Abduction and there appears to me no reason why the mother should not be permitted to take the child out of Australia for the purpose of a holiday.  It has been put to the Court that the holiday will take place between 11 July, when the family will leave Australia, and 2 August, when they will arrive back in Australia.  The mother, who was born in Australia although also has dual citizenship of (country omitted), has informed the Court that she has taken leave from her work and is expected back to work. I would comment at this stage, there is no evidence before me that would indicate that the mother is a flight risk or that there is any risk that she would seek to overstay her time out of Australia. 

6. The mother has raised issues about a car seat to be provided for the use of the child in the father’s vehicle and has deposed at paragraph 18 of her affidavit:

   It is important that X be secured in an age and weight appropriate car seat in any vehicle in which he is transported.

7. The mother has, to her credit, deposed at paragraph 19 of her affidavit:

   X has clothing and gifts which have been provided by the respondent.  X enjoys the gifts and wears the clothes his father has given him.

8. The mother’s solicitor, Mrs Court, tendered during the course of these proceedings photographs of the child taken recently showing him playing with toys provided by the father and wearing clothes, including a green t-shirt that are gifts from the father.  There is a photograph of the child taken at around Christmas time showing him sitting on a lounge surrounded by a vast amount of toys.  There is another photograph showing his sitting on the floor beside a new Spiderman outfit, which was also a gift from his father.

9. The child in the photographs appears happy and healthy and there is one particular photograph taken of the child in the arms of his mother when he is blowing out candles on a birthday cake.  It certainly appears that this little boy is being well looked after and it is encouraging that his mother has made sure that he is aware that clothes and gifts from the father do in fact come from the father.  The father himself in his affidavit of 28 April has pointed out that he has attempted to comply with the requirements of the earlier consent orders. In paragraph 2 of his affidavit he deposes:

   Since mid-2014 I have completed a parenting after separation course and I have also completed and anaphylaxis and asthma course in order to be as best prepared to deal with any allergic reactions X may suffer whilst in my care.

10. He goes on to talk about the time that he has spent at the children’s contact centre with his son, which he says has been extremely positive and rewarding and states that:

    Our bond as father and son has developed immensely since the supervised visitations have been in place.

    He goes on to say that he has built a strong bond and rapport with his son and he is seeking to develop their relationship further. 

11. I have read the Family Report prepared by Dr J with great interest.  The mother, it was said in the report, was born in Australia.  Her parents migrated to Australia from (country omitted) a few years prior to her birth.  It’s noted that X speaks both English and (language omitted).  He has always lived with his mother. 

12. The parties separated prior to the child’s birth and it is significant that there was a period of time during which the father did not spend time with his son.  It emerges from the report that the father is keen to build up his relationship.  It is significant to read the comments by the family consultant.  Paragraph 49 of the report she comments:

    Ms Peters appears to be perhaps a bit more protective of X than Mr Vance, and she appears somewhat anxious about his allergies and asthma.  X is clearly very precious to her, but she is able to acknowledge that he would benefit from having his father involved in his life.

    The Family Consultant noted that X has a warm and loving relationship with his mother and it is natural that the mother is the child’s primary attachment figure.

13. The Family Consultant also noted that X appears to have a very strong bond with his maternal grandparents who have played a very active role in his upbringing. He is developing a relationship with his father and there is every indication that this has the potential to be a very positive and supporting relationship for him as he grows up. He will also benefit from getting to know his paternal grandmother and uncle as well as his family. The Family Consultant goes on to say at paragraph 51:

    X presents as a child who is more anxious about change in novel situations than many other children of his age.  Although he can now cope very well with being away from his mother whilst she is at work, he is a child who needs more time to get used to new situations.  Once he feels settled he presents as a confident and energetic little boy.  X’s anxiety needs to be factored into the way that changes in the way he spends time with his father are managed.  However, it is also good for a child who is a little anxious to be exposed to new situations as long as this is done in a gradual and supported way so that they can learn that they can manage change rather than feel overwhelmed by it.

14. The Family Consultant recommended that the parents should have equal shared parental responsibility for X, but that the child should live with his mother. The Family Consultant goes on to recommend at paragraph 54 – and I consider this an important recommendation and I will quote it in full:

    It is recommended that the time X spends with his father is increased gradually.  The first step, which could happen immediately, would be for him to have unsupervised contact with Mr Vance with handover being at the contact centre.  And for this to progress into longer periods of time with handover occurring at public location in closer proximity to Mr Vance and Ms Peters’ home.

1. The mother’s proposals, today, for the orders, which in fairness the father considers are perhaps on the conservative and restrictive side are that there should be a further four visits at the contact centre with family members to be invited subject to the conditions and requirements of the centre.  The mother would be permitted to travel overseas from 10 July 2015 to 2 August 2015.  There should be unsupervised contact for three hours for a period of four months – eight visits.  There should then be unsupervised contact for six hours each alternate weekend subject to the centre’s availability. There should also be time with the father on Father’s Day from 9 am to 12 noon, again, subject to the centre’s availability.

2. It is envisaged in the mother’s proposal that changeover is to take place at the Catholic Care contact centre even when the father’s time with the child is no longer supervised at the contact centre. The parties to communicate by email in relation to the child’s health and medical needs except in case of medical emergency. The mother seeks that the father is not to consume alcohol for 12 hours prior to or during any time he spends with the child. The father is to have available during the child’s time with him all medications and care plans in relation to the child’s health and the father is to have an age appropriate child safety seat for his motor vehicle.

3. It can be seen that some of these orders reflect the mother’s anxiety about the care of her child who, as the Family Consultant says, is very precious to her.

Conclusions 

1. I must consider the matters set out in sections 60B, 60C(a) and 60C(c) of the Family Law Act 1975 in respect of the best interests of the child.  I look at the benefit to him of having a meaningful relationship with each of his parents, and that is clearly borne out by the Family Report.  Indeed the mother concedes that it is of benefit to this little boy to have a meaningful relationship with his father. 

2. I must look, of course, at the other primary consideration of the protection of the child from harm, of physical or psychological harm due to him being subject to, or exposed to abuse, neglect or family violence. This is not a violence case. The mother has some concerns, and still has some concerns about the father’s ability to look after the child. But in fairness the father seems to have jumped through the hoops by attending a parenting after separation course and course in respect of anaphylaxis and asthma to endeavour to meet the onerous requirements of parenthood.

3. It would seem to me that each parent has a positive attitude towards the responsibilities of parenthood. The views of the child are not of a great deal of weight bearing in mind his age, although it does appear from the family report that he is a child who is perhaps a bit more anxious than most. But it also appears from the evidence that he is benefiting from spending time with his father. I am of the view that the time has come for there to be an increase in the time that this child spends with his father especially as the beginning of next year he will be commencing school.

4. It would appear that the need for supervised contact is over, or almost over and I note the recommendation of the Family Consultant. There are some points to be made in respect of time at the contact centre continuing for a little while longer especially in regard to building up a relationship with the child’s paternal grandmother and his uncle. And I have had the benefit of seeing the uncle and speaking to the uncle in Court today. There needs to be a graduated progress, which is in line with the recommendations of the Family Consultant and I intend to make orders accordingly.

5. Whilst the orders that I intend to make will not be quite as generous at the father would like, they are perhaps a bit more extensive than the mother would also like.  But I have done so out of concern for the best interests of the child, which, as I told the parties this morning, must be the paramount consideration.  I have also considered the fact that it will be a great adventure for this child to travel to (country omitted) with his mother and grandparents.  I have no real fears that the mother will not return the child to Australia and I propose to order, however, that she do so by 3 August.  Noting that sometimes aircraft can be delayed for one reason or another, either mechanical faults or weather.

6. I am strongly of the view that an age appropriate car seat should be installed in the father’s motorcar. And it would seem to me that the time for that to be done – for the father to make those arrangements would probably be whilst the mother is away in (country omitted) with the child so that by the time this little boy gets back from this great trip the father will have an appropriate and up to date car seat. From the father’s submissions to the Court it appears that he is well and truly aware of the need to have a proper car seat for this boy and I have no doubt that he will take appropriate steps to purchase and have such a seat installed.

7. The father has expressed concerns about knowing about this child’s medical situation, including who the child’s doctor is.  And I propose to make an order for that to take place.  It seems to me to be appropriate that this father needs to know who is this child’s treating doctor so that he can obtain information about the child not just if the child suddenly becomes ill but generally so that he can have a regard to this little boy’s health.

8. The parties have got to be able to tell each other any changes of residential addresses or telephone numbers or emails.  I look to the fact that this child is going to start school at the beginning of 2016.  The parents, amongst other people, need to be on the school records.  I have no doubt that the mother would also want her own parents recorded by the school in places of emergency.  But the father should not be ignored.  Each parent should receive a copy of school reports and other material that comes from the school so the father can have an active idea of his child’s progress at school.

9. It would seem to me that it is appropriate that not only should the mother be able to attend parent teacher interviews but so should the father. They do not have to attend together. Schools are well and truly aware of the need to have separate interviews where parents are separated and that has been happening at schools for decades, to the Court’s knowledge.

10. I think it is important that the child’s birth certificate should record both parents. The father says the he is paying child support, but, of course, it often happens and the Court is well aware that people have difficulties with getting child support assessment against a father when the father’s name is not on the birth certificate. But there are many reasons why it should be recorded on this child’s birth certificate that he does have a father and there is a father who wishes to play a positive role in this child’s life.

11. For more abundant caution I will make an order restraining the parties from using critical or offensive language to the other in the presence or hearing of this little boy. Although, I am of the belief looking at the evidence that is before me that times of difficulty and unpleasantness between these two parties are in the past and I am satisfied that each party is keen to take a positive role in the upbringing, care, welfare and development of this child, which to my mind is very much to this boy’s benefit.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  22 June 2015