Pierpoint and Sarrocolt
[2010] FamCA 183
•19 February 2010
FAMILY COURT OF AUSTRALIA
| PIERPOINT & SARROCOLT | [2010] FamCA 183 |
| FAMILY LAW – CHILDREN – Best interests of the child – Equal shared parental responsibility – Equal time considered – Substantial and significant time considered – Where child alleged to be bullied by step-siblings in the father’s household – HELD – Substantial and significant time with orders as outlined in the judgment |
| Family Law Act 1975 (Cth) ss 10E(1), 60CA, 60CC(1), 60CC(2), 60CC(3), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4) |
| MRR v GR [2010] HCA 4 |
| APPLICANT: | Ms Pierpoint |
| RESPONDENT: | Mr Sarrocolt |
| FILE NUMBER: | CAC | 512 | of | 2008 |
| DATE DELIVERED: | 19 February 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATES: | 26 & 27 November 2009 29 January 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr C. McKeown (26 & 27 November 2009) Mr D. Browne (29 January 2010; 19 February 2010) |
| SOLICITOR FOR THE APPLICANT: | Jeanine Lloyd & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr S. Gill (26 & 27 November 2009) Mrs A. Evans (29 January 2010) |
| SOLICITOR FOR THE RESPONDENT: | Evans Yeend Family Lawyers |
Orders
IT IS ORDERED THAT:
All prior orders relating to J, born … June 1999 (“the child”), are discharged.
The child will live primarily with his mother.
The child’s parents will share equally parental responsibility for him.
The child will spend time with his father as follows:
a.During school term on each alternate weekend from after school on Friday until 5pm on Sunday or if Monday is a public holiday until 5pm on Monday.
b.This arrangement will commence if the child has been with his father in accordance with the orders that follow for the second half of the school holidays on the second weekend of the new school term period and if he has been with his father for the first half of the school holidays on the first weekend of the school term.
c.For one half of the ACT school holiday periods as agreed between the parents and failing agreement to be for the second half of the school holidays in the year 2010 and in each alternate year thereafter and for the first half in the years ending in an odd number.
d.The child will spend between 9am and 5pm on Father’s Day with his father if he would not otherwise be spending that time with his father and will spend from 9am to 5pm on Mother’s Day with his mother if he would not otherwise be spending that time with his mother.
e.In respect to the Christmas school holidays:
i.If the child is with his mother for the first half of the holidays (2010 and each year ending in an even number or a zero thereafter), he will spend from 2pm on Christmas Eve and 2pm on Christmas Day with his mother and from 2pm on Christmas Day to 2pm on Boxing Day with his father.
ii.If the child is with his father for the first half of the holidays (2011 and each year ending in an odd number thereafter), he will spend from 2pm of Christmas Eve and 2pm on Christmas Day with his father and from 2pm on Christmas Day to 2pm on Boxing Day with his mother.
f.On the child’s birthday … June,
i.If that day is a school day he will spend from after school until 5:30pm with the parent he is not otherwise scheduled to be with. (Including Friday with his mother for that time if it is a weekend he will be spending with his father.)
ii.If that day is on a weekend he will spend from 9am to 2pm with the parent with whom he would not otherwise be on that day.
Each of the parents will provide an authority to any person treating the child for medical or other allied reasons for the release of information about the child’s treatment to the other parent and each parent may contact such professional to obtain information about the child’s care.
a. Each of the parents will provide an authority to any school that the child attends for the release of information to the other parent about the child and school activities including, but not limited to, school reports, school photographs, invitations and flyers and each of the parents is at liberty to attend school to participate in events involving the child.
b.However, if both parents choose to attend an event involving the child at the school they will do all things reasonably necessary to ensure that they do not come into any contact or provide any situation in which the child is likely to be exposed to any conflict between them.
a. Each of the parents be and is hereby restrained from having the child involved in any further psychological assessment or treatment without the written consent of the other parent but such parent will not unreasonably withhold such consent.
b.Notwithstanding the last mentioned order, the father will approach and the mother will cooperate in the father’s approaching and the child attending upon Mr O at Centrecare for the purposes of considering what further assistance might be derived from Mr O or someone else recommended by him to improve the relationship between the child and his father and to ensure that the child settles more comfortably into the environment in which he will be spending time with his father.
So far as is possible each of the parents will not attend at the school at the time the other parent is there save in so far as if the mother is attending at the school for the purposes of her relief teacher work she will do whatever is reasonably necessary to stay away from the father at any time that he might be attending the school for the purposes of picking the child up or delivering him.
Neither parent will say unkind or unpleasant things about the other in the presence or the hearing of the child and will do whatever they reasonably can to prevent any other person from making any unkind or unpleasant comments about the other parent in the presence of the child.
Each of the parents has agreed and neither parent will cause the child to be known by any surname other than Pierpoint-Sarrocolt.
Each parent be and is hereby restrained from administering any physical punishment or discipline to the child and neither will permit any other person in their presence to administer any physical discipline or punishment to the child.
a. Each of the parents will cooperate in ensuring the child attends extra‑curricular activities while the child is spending time with that parent. However, each parent be and is hereby restrained from enrolling the child into any extra-curricular activity which would occur during the time he is with the other parent, unless it is with the prior written consent of that parent.
b.Notwithstanding the last mentioned order, during the winter months and during the time that the soccer competition is occurring the child will attend soccer irrespective of whether he is with his mother or his father and during the summer months when the basketball competition is occurring he will attend basketball whether he is with his mother or his father. However, if either mother or father is unable to take the child to his soccer games or his basketball games when the child is with that person then that parent will inform the other parent and permit the other parent to take the child to his games if that is what the child wants and the other parent is able to do so.
Each of the parents will ensure that if the child is involved in any emergency requiring any treatment for the child they will let the other parent know immediately or as soon as is practicable and will facilitate the provision of information to the other parent about the emergency or the effect it may have on the child.
In the event that either parent is unable to unwilling to care for the child at some point for whatever reason each parent will in such circumstances give the other parent the first opportunity to care for the child.
The matter is otherwise removed from the pending cases list and all existing applications are finalised.
Pursuant to s 62B and s 65DA(2) 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
IT IS NOTED that publication of this judgment under the pseudonym Pierpoint & Sarrocolt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 512 of 2008
| MS PIERPOINT |
Applicant
And
| MR SARROCOLT |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, the issues between the parties, (both of whom are intent on doing whatever is best for their son, J, born in June 1999,) are within a fairly narrow compass.
Both parents are agreed that the child should continue to live with his mother as he has done essentially since the parties separated and that there should be a sharing of parental responsibility; that is that they should each make decisions about long-term issues relating to his care, welfare, and development in consultation with each other. That is something which each of them finds difficult and which has not worked all that well in the past.
The parents are agreed, as I have discovered today, about many other matters relating to the time that the child would spend with each of them. For example, they are agreed that he will spend Fathers' Day with his father and Mothers' Day with his mother, even if that would ordinarily be time when he would be spending time with the other parent. They are agreed that Christmas Day should be shared in a way that is set out in the minutes of order sought by the father and that the child’s birthday should be shared as is set out. It is agreed that the handover for the time that he spends with the other parent will generally be in the park adjacent to K.
It is agreed that each of the parents will have the power to obtain information about any medical treatment the child undergoes and will ensure that the other parent is authorised to do that. Each of the parties agrees that the school will be directed to provide to both of them all the information that is necessary to enable each of the parents to participate in the child’s school life. Each of the parties agree that neither parent should involve the child in any psychological assessment or treatment without the written consent of the other. Each of the parties is agreed that essentially they will avoid each other when the child is at school, in the sense that they will not come into contact with each other in those circumstances.
The parties are also agreed that neither parent should say or will say unkind or unpleasant things about the other parent in the presence of the child or allow other people to do so.
The parties are agreed about what the child’s surname should be. Each of them is agreed that there should not be any physical discipline of the child.
The parties are agreed that neither of them should be able to enrol the child in extra-curricular activities during the time he would spend with the other parent except in relation, the mother says, to the child’s involvement in basketball, and both parties agree as to the child’s involvement in soccer.
Each of the parties is agreed that if there is an emergency involving the child that they will notify the other parent immediately and each is agreed that the other should have the first opportunity to care for the child if that parent is unavailable.
Each of the parties is agreed, interestingly, that the child should spend from at least lunchtime on Saturday until Sunday afternoon with his father. The father says he should spend from Friday afternoon until Sunday afternoon with him.
Each of the parties is agreed that the child should spend some time during the school holidays with his father, although the present arrangement of three days is opposed by the father who says there should be only one handover in the middle of the holiday period, with essentially seven days instead of three days.
The parties are not in agreement about whether or not the child should spend Wednesday night with his father, as his father seeks.
Relevant background and procedural history
Proceedings before this Court have sadly been quite prolonged (see the history of the proceedings annexed at Endnote 1.Endnote 1) This matter has been around for a long time and the parents are still not entirely in agreement and may never be in agreement. I should be thankful that the child has probably only got about another eight years left before he is an adult. Therefore, there could only reasonably be another eight years of disagreement capable of further litigation.
The legislative pathway: the best interests of the child
The Court is to make orders which are in the best interests of the children.[1] In determining what are in the child’s best interests, the Family Law Act 1975 (Cth) stipulates that the Court must take into account both primary and additional considerations.[2]
[1] Family Law Act 1975 (Cth) s 60CA.
[2] Family Law Act 1975 (Cth) s 60CC(1).
The first primary consideration is the benefit of the child having a meaningful relationship with each of his parents.[3] This is not something that either parent suggests is inappropriate. The mother says – and I accept that it is probably the case – that she has done her very best to ensure that the child has a meaningful relationship with his father. The father suggests that he cannot understand “what the problem is” because the child does have a meaningful relationship with him. He is equally insistent that the child should have a proper relationship with his mother. He is also agreed that the child should live principally with his mother.
[3] Family Law Act 1975 (Cth) s 60CC(2)(a).
The second primary consideration is the need to protect the child from, inter alia, physical or psychological harm.[4] The suggestion from the child’s mother, which is reflected in some of the material that comes from the family reports, is that the child is upset and agitated during the time he is with his father, for a number of reasons which include, (it is asserted on report from him,) that he is bullied by the other children who live in his father and step‑mother's household.
[4] Family Law Act 1975 (Cth) s 60CC(2)(b).
The information about this is far from clear. I am not clear myself as to whether the child is in fact making these reports or complaining about it because he seeks, as the family report suggests, that he should have the security of a one-on-one relationship which he enjoys in his mother's household, rather than the hurly-burly of his father's household where he has to share attention with a number of other people in his father’s new family.
There is nothing, however, in the material before me, (given that the last material is now about ten months old,) which would enable me to come to any satisfactory conclusion that the child is being bullied in his father's household. I note the father says he is not. The mother suggests he is being bullied on the basis of what the child says. I cannot really come to any satisfactory conclusion about that and that is the case with a number of important matters in this case. It is a matter which is really beyond the realms of legal determination. It is a matter of trying to adjust between two parents, each of whom has different views about what is in the child’s best interests.
The mother urges on me that I should take account of the child’s views. Section 60CC(3)(a) of the Family Law Act 1975 (Cth) identifies the following as an additional consideration:
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
In this case, the child is not of an age where his views would decide the matter, as it would if he were perhaps four or five years older. J is entitled to express his views about what time he spends with his parents and other people. That does not mean that his views necessarily dictate what the situation should be. More importantly, in this case, I am not entirely certain that I understand exactly what his views are.
I am not satisfied that J’s response to the time he spends with his father is not brought about by his desire to return to the comfort of having the one‑on‑one relationship and the unrelenting attention that his mother lavishes upon him. I do not say that critically of the mother, but from the earliest reports that have been obtained in this matter, it is clear that the child is, in old‑fashioned terms, the “apple of his mother's eye” and that when he is with his mother he enjoys her undivided attention. That is something he cannot receive in his father's household, nor for that matter is he likely to ever receive it in the rest of his life unless he stays at home and lives with his mother, (which I do not think anyone suggests is appropriate,) when he is an adult.
I have conflicting evidence about the nature of the child’s relationship with his father and his mother.[5] No one doubts that he has a good and close relationship with his mother. There is some doubt about the nature of the relationship he has with his father. His father asserts it is a good relationship and there is some support for that in the family reports I have available to me.
[5] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).
This is a matter in which the report the lawyers representing the parties urged on me I should obtain before delivering judgment, was unavailable because the Legal Aid Commission (ACT) were unwilling or unable to fund any further reports. This means that I do not have any immediately up-to-date information about the nature of the relationship of the child with his father. I note, however, that in accordance with orders and recommendations previously made, the child and his father attended upon the Centacare program. The result of that attendance I do not really know because I am precluded from receiving any report from Mr O (who conducted the course) because the information given to him is privileged and he therefore he cannot validly report about it.[6] He did provide a report, but I have not read it in preparing this judgment and nor have I taken any account of it. That report is a matter which I disregard in all respects for the purposes of this judgment.
[6] See Family Law Act 1975 (Cth) s 10E(1)(c).
I am satisfied, however, that irrespective of whether or not the relationship between the child and his father is as good as it might be or whether it could be better if he were to obtain some assistance and counselling or otherwise through Centacare or some other organisation, there is no question about the fact that both parents suggest that the child should be spending time with his father. Hence, there should be a good relationship and that should be encouraged. In those circumstances we are talking about degrees of time, not substantial differences about whether or not the child should actually have a relationship with his father.
I do not think that either parent has the capacity or the willingness or the ability to do what needs to be done to facilitate and encourage a close continuing relationship between the child and the other parent.[7] It is obvious that the parents really do not like each other at all. The consequence of that is that the child, in moving from one parent to the other, is conscious of what his parents feel even if they do not tell it to him directly. In those circumstances, I cannot be satisfied that either of them will do whatever is necessary to make this work in the future.
[7] Family Law Act 1975 (Cth) s 60CC(3)(c) refers.
I do not feel any strong sense of confidence that any orders I make today will apply without trouble for the future and, indeed, I suspect the parents will be back before me before too long.[8] However, I can only do what I can do on the evidence available before me.
[8] Section 60CC(3)(l) of the Family Law Act 1975 (Cth) refers to the additional consideration of ‘whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.’
If there were to be a change in the present arrangements for the child, his mother suggests that this would be distressing to him because there would be additional time he spends with his father. His father says that if he had more time with the child then J could fit into his household more effectively and would have a good time. The father says he already has a good time, so how the change would work is not is not clearly evidenced to me.
The mother says that the midweek time that the child spends with his father is disruptive. There is some reason for that (I accept) because of complaints (on the evidence) from the child’s teachers. I am not satisfied that this is necessarily the result of the child’s genuinely-felt distress or whether he is in fact to some extent, attention‑seeking by making the complaints. I do not know the answer and I do not place any reliance upon one interpretation rather than the other.
There are some practical difficulties about the child’s spending time with his father,[9] but they are difficulties which the parents have in the past resolved (to their credit) and which they are determined to resolve in the future (again to their credit.)
[9] Family Law Act 1975 (Cth) s 60CC(3)(e) refers.
I am satisfied that each of them has the capacity to provide for the child’s physical needs.[10] The mother would suggest that the father is incapable of providing for the child’s emotional needs. The family reports are equivocal on this matter, and I accept that the child has difficulty in adjusting to his father's household. I do not accept that the father is incapable of providing him with the emotional support that he needs.
[10] Family Law Act 1975 (Cth) s 60CC(3)(f)(i) refers.
Each of the parents has to some extent expressed as responsible an approach to parenthood as they might reasonably be expected to do.[11] This is on the basis that it is very difficult for the parties to work out and, to some extent, even more difficult for the Court to work out, what is the arrangement that will give the child the best advantage from the fact that he has two parents. J was born into that situation and this cannot be altered and has to be considered for the future.
[11] Family Law Act 1975 (Cth) s 60CC(3)(i) refers.
There are no matters relating to family violence that I think are particularly relevant.[12] I accept that there is a strong suggestion from the mother that the child is bullied when he is in his father's household. That is not supported on the evidence and is denied by the father. I accept this puts the mother in a very difficult position. The mother naturally believes what her son tells her. In those circumstances, those things which may be the ordinary day‑to‑day effects of living in a busy and bustling household reflected in a different way in the child’s report to his mother, which in turn influences the way she looks at it. I share her concern that the child should be protected from any form of violence. I note with some degree of satisfaction that both parents agree that the child should not be the subject of any physical disciplinary punishment in either household.
[12] Family Law Act 1975 (Cth) s 60CC(3)(j) refers.
I cannot decide on the evidence before me whether there is any proper basis for the child’s complaints about bullying. I am satisfied that, in any event, given the nature of these proceedings and the fact that the issue of the child’s potentially being bullied has specifically been brought to the father's attention, that the father will do everything in his power to ensure that it does not happen in the future.
The impact of an equal shared parental responsibility order: s 65DAA of the Family Law Act 1975 (Cth)
I note that because the parents are agreed that there should be equal shared parental responsibility, I must consider the possibility that the child should live equally in each household.[13] That is not suggested by either parent and it is not regarded as being appropriate by either parent and I certainly do not intend to make orders to that effect.
[13] Family Law Act 1975 (Cth) s 65DAA(1)(a) refers. I note that the High Court of Australia delivered judgment on the correct interpretation of s 65DAA of the Family Law Act 1975 (Cth) (with respect to the ‘reasonable practicability’ requirement) after I had delivered this ex-tempore judgment: see MRR v GR [2010] HCA 4 (per the Court).
In the event that I do not make an order vis-à-vis “equal time spent with”, I am to consider whether to make an order for “substantial and significant time”[14] with the other parent. Without limiting the other matters that the Court can have regard in determining whether the time a child spends with a parent would be substantial and significant,[15] s 65DAA(3) of the Family Law Act 1975 (Cth) relevantly provides:
[14] Family Law Act 1975 (Cth) s 65DAA(2)(c) refers.
[15] Family Law Act 1975 (Cth) s 65DAA(4).
(3) For the purposes of [s 65DAA(2)], a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In this matter, given the difficulties that have occurred in the past, the arrangements that might be appropriate for some parents are not appropriate for these parents. In some cases it is appropriate, for example, for a child to spend from perhaps Thursday evening with a parent and then over the weekend so that there is school-time involved. The father seeks in fact there should be school-time involved on a Wednesday, however, I accept that the evidence is unsatisfactory that there is any particular advantage for the child in having the Wednesday night with his father.
Conclusion
Accordingly, it seems to me that it is important that he has significant time because I am obliged to consider that under the Family Law Act 1975 (Cth), but that would be fulfilled, in my opinion, by his spending from after school on Friday with his father on weekends until the Sunday afternoon. I do not understand the difference about the significance of his attending at either 4.00 pm or 5.00 pm as submitted, but it seems to me 5.00 pm is a reasonable time. Insofar as the weekday time is concerned, in considering the child’s best interests, I consider it important that he should spend after school from 5.00 pm on Friday with his father until 5.00 pm on Sunday on every second weekend. I do not believe the Wednesday evening is appropriate and I will not make that order.
So far as the school holidays are concerned, I do not follow the logic of the mother's reasoning about the three days on and three days off. It seems to me that if there is disruption and psychological concern to the child about what is happening, it is important that that should be as confirmed as it can be and that he should have in fact only one changeover during the holiday. I think that is the appropriate order that I should make and it should be one half of the school holidays and not every three days as is presently suggested.
I propose to order without being able to examine or take into account any matter that is contained in the report from Mr O that the father and the child should continue to accept his guidance. This may involve their participation in the future in the Family & Adolescent Counselling Program (FACES). I cannot guarantee that the program is going to make any difference, however, I consider it really important that the father should recognise that the proceedings before the Court are not about more or less time, although that is the way it seems to have finished up today. The proceedings are about what is going to be best for his relationship with J. This may not be easy in the context of all the other children that are demanding part of the father's attention and care.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Legal Associate:
Date: 10 March 2010
Endnote 1 Court Events History – Pierpoint & Sarrocolt CAC 512/2008
NB: References to ‘Hearings’ may include ‘In Chambers’ hearings, without necessarily the parties being present
| Event | Date |
| Orders & directions made by Registrar Heuer | 04.02.03 |
| Orders & directions made by Registrar Heuer | 06.03.03 |
| Orders & directions made by Registrar Morrisey | 13.03.03 |
| Hearing before FM Brewster | 24.03.03 |
| Orders made (by consent) by FM Brewster | 14.04.03 |
| Conference before Registrar Heuer | 10.08.04 |
| Hearing before FM Brewster | 06.09.04 |
| Orders made by FM Brewster | 25.10.04 |
| Orders made (by consent) by FM Brewster | 27.01.05 |
| Hearing before FM Brewster | 29.03.05 |
| Orders made by FM Brewster | 16.11.05 |
| Orders made by FM Brewster | 09.07.07 |
| Hearing before FM Brewster | 20.08.07 |
| Orders made by FM Brewster | 02.10.07 |
| Hearing before Registrar O’Rourke | 24.01.08 |
| Hearing before FM Brewster | 29.01.08 |
| Orders made by FM Brewster (Transfer to Family Court of Australia) | 17.03.08 |
| Hearing before Registrar Parker | 26.03.08 |
| Orders made by Registrar Parker | 04.04.08 |
| Hearing before Registrar Parker | 08.04.08 |
| Hearing before Registrar Parker | 19.05.08 |
| Hearing before Registrar Parker | 13.06.08 |
| Hearing before Registrar Parker | 31.07.08 |
| Hearing before Registrar Parker | 13.08.08 |
| Hearing before Registrar Parker | 28.08.08 |
| Hearing before Registrar Parker | 07.11.08 |
| Hearing before Registrar O’Rourke | 13.11.08 |
| Orders made by Registrar Parker | 18.12.08 |
| Hearing before Registrar Parker | 12.03.09 |
| Hearing before Registrar Parker | 31.03.09 |
| Hearing before Registrar Parker | 09.04.09 |
| Orders made by DCJ Faulks | 15.04.09 |
| Orders made by DCJ Faulks | 26.05.09 |
| Orders made by DCJ Faulks | 31.07.09 |
| Orders made by DCJ Faulks | 24.09.09 |
| Hearing before DCJ Faulks | 26.11.09 |
| Orders made by DCJ Faulks | 27.11.09 |
| Orders made by DCJ Faulks | 29.01.10 |
| Final orders made by DCJ Faulks | 19.02.10 |
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Jurisdiction
-
Procedural Fairness
-
Remedies
0