Preston and Starkweather
[2012] FMCAfam 168
•29 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRESTON & STARKWEATHER | [2012] FMCAfam 168 |
| FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether equal time with each parent in child’s best interests and reasonably practicable – whether substantial and significant time in child’s best interests and reasonably practicable – whether removal from Australia should be permitted – maternal extended family reside in (omitted) – (omitted) not a Convention country – Airport Watch List – child’s school – best interests of the child. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65Y, 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth), Sch.2 |
| Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 Line & Line (1997) FLC 92-729 Preston & Starkweather [2010] FMCAfam 467 |
| Applicant: | MR PRESTON |
| Respondent: | MS STARKWEATHER |
| File Number: | SYC 2298 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 1-3 March 2011 |
| Date of Last Submission: | 3 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2012 |
REPRESENTATION
| Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | Stidwill Solicitors |
| Counsel for the Respondent: | Mr Levy |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
All earlier parenting Orders are discharged.
The Respondent Mother is to have sole parental responsibility for all decisions about medical and surgical treatment for the child of the marriage X born (omitted) 2007.
Subject to Order (2) above, in all other respects the Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X.
The child X is to live with the Mother.
X (otherwise referred to as “X”) commences school in January 2013 she is to spend time with the Father as follows:
(a)Each alternate weekend from 9:00am on the Saturday until 5:00pm on the Sunday;
(b)Each week from 9:00am on the Tuesday until 5:00pm on the Wednesday; and
(c)At such other times as the parties shall agree.
Commencing on the date when X commences school in January 2013, the child is to spend time with the Father as follows:
(a)During school terms and in accordance with a two week cycle:
(i)In week 1, from the conclusion of school on Wednesday to the commencement of school on Thursday; and
(ii)In week 2, from the conclusion of school on Friday to the commencement of school on Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday;
(b)During school holidays in 2013, for a block period of five (5) nights during the Autumn, Winter and Spring school holidays and for two block periods each of five (5) nights during the Christmas/January school holidays;
(c)During school holidays in 2014, for a block period of six (6) nights during the Autumn, Winter and Spring school holidays and for two block periods each of six (6) nights during the Christmas/January school holidays;
(d)During school holidays in 2015 and thereafter for half of the Autumn, Winter and Spring school holidays on dates to be agreed by the parties and for half of the Christmas/January school holidays in each year on dates to be agreed by the parties;
(e)For the weekend that includes Father’s Day in each year from after school or pre-school on the Friday until the commencement of school or pre-school on the Monday;
(f)For a period of up to three (3) hours on the child’s birthday in each year if the child is not already in the Father’s care according to these Orders at times to be agreed between the parties but failing agreement at times nominated by the Mother; and
(g)At such other times as the parties may agree.
Notwithstanding any other Order and for the purposes of Christmas celebration time the following arrangements will apply:
(a)The child X is to spend time with the Father from 3:00pm on Christmas Eve 24 December to 3:00pm on Christmas Day 25 December in 2012 and each alternate year thereafter; and
(b)The child is to spend time with the Father from 3:00pm on Christmas Day 25 December to 3:00pm on Boxing Day 26 December in 2013 and each alternate year thereafter.
Notwithstanding any other Order, the child X is to live with the Mother:
(a)For the weekend that includes Mother’s Day in each year from after school or pre-school on the Friday until the commencement of school or pre-school on the Monday; and
(b)For a period of up to three (3) hours on the child’s birthday if the child is not already in the Mother’s care according to these Orders at times to be agreed between the parties but failing agreement at times nominated by the Mother.
For the purpose of facilitating changeovers and in the absence of any other agreement being reached between the parties from time to time, the following will apply:
(a)In the event that X is attending school or pre-school, the Father or his nominee must collect the child from school or pre-school at the commencement of the child’s time with him and must return the child to the school or pre-school at the conclusion of the child’s time with him;
(b)In the event that X is not attending school or pre-school, the Father or the paternal grandmother or either of the Father’s sisters or his aunt are to collect the child at the commencement of each period of time with the Father and return her at the end of each period of time with the Father as follows:
(i)On a weekend or a public holiday at the (omitted) entrance;
(ii)At all other times at the driveway entrance to the lobby of the (omitted), and
(iii)On all occasions, if either party is going to be late for a changeover he or she is to forward a text message to the other party to advise her or him of the expected arrival time and must do so immediately upon becoming aware of the likelihood of being late and no later than ten (10) minutes before the scheduled changeover time.
The Mother is to do all things necessary to ensure that X has the necessary vaccination for Measles, Mumps and Rubella immunisation no later than the end of November 2012.
The Mother and Father are to use a communication book regarding issues concerning X including but not limited to the child’s day to day arrangements and the communication book is to be passed between the Father and the Mother by placing the book with the child’s belongings.
If the child X wishes to telephone one parent whilst in the care of the other according to these Orders then that parent is to facilitate the child telephoning the other parent between the hours of 8:00 and 8:30pm.
Both parties are restrained from administering to themselves any prohibited drug at any time when the child X is in their care or for a period of twelve (12) hours beforehand.
The Father is restrained from consuming alcohol at any time when the child X is in his care or for a period of twelve (12) hours beforehand.
Each party must inform the other of any medical or hospital treatment given to the child and authorise the treating medical practitioner or hospital to provide all necessary information about the child’s treatment to the other party.
The parties are to do all things necessary to ensure that the child X is enrolled at the (omitted) Public School to commence school at the beginning of the 2013 school year.
The Mother is to authorise the Principal of (omitted) Public School to provide to the Father at his expense copies of school reports relating to the child, school newsletters, information about school photographs, invitations to attend parent-teacher interviews and other documents normally forwarded to parents of children attending that school.
Neither party is to denigrate or criticise the other party or any member of the other party’s family to the child X or in her presence or hearing or permit any third person to do so.
The Father Mr Preston born (omitted) 1978 and the Mother Ms Starkweather born (omitted) 1979 and their servants or agents are restrained from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List also known as the PACE Alert System in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until 1 March 2015 or earlier Order.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of all States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child X from the Commonwealth of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Preston & Starkweather is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2298 of 2010
| MR PRESTON |
Applicant
And
| MS STARKWEATHER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders in relation to the parties’ daughter, X, who was born on (omitted) 2007. She is now four years and six months old.
Orders Sought
The Father is the Applicant. In his Application, he seeks orders that:
a)the parties should have equal shared parental responsibility for their daughter;
b)the child should live with the parties on a week about basis; or
c)in the alternative, that the child should live with her mother and spend time with her father:
i)until she commences school, from Tuesday morning until the start of pre-school or day care on Thursday, each alternate weekend and on special days such as Christmas Day, the child’s birthday, the father’s birthday and Father’s Day; and
ii)Once the child commences school, from after school Tuesday until before school on Thursday, each alternate weekend from Saturday morning until the commencement of school on Monday, half of the school holidays, and other special days such as Christmas Day, Easter, the child’s birthday, the father’s birthday and Father’s Day.
The Father seeks an order that the child should be able to speak to him by telephone whenever practicable but, in any event, not less than twice a week.
The Father also seeks orders that the Mother should be restrained from removing the child from Australia and that the child’s name be placed on the Airport Watch List maintained by the Australian Federal Police.
In addition, the Father seeks an order that changeover should take place at the child’s pre-school or school, or at the (omitted) in Sydney, the (omitted) Centre or such other place as the parties agree.
However, in his affidavit of 24th February 2011 the Father set out, in paragraphs 57 to 64, slightly different orders to those in his Application. In paragraph 64, he seeks an order restraining the Mother from leaving the child alone in the presence of the Mother’s friend Mr O and an order restraining him from physically disciplining the child or raising his voice to her.
The Mother, who is the Respondent, seeks orders that:
a)She should have sole parental responsibility for all decisions about the child’s medical treatment but, otherwise, the parties should have equal shared parental responsibility;
b)The child should live with her;
c)Until she commences school in January 2013, the child should spend time with the Father from Wednesday morning until the commencement of pre-school on Thursday in the first week of each fortnight and from after pre-school on Friday until the commencement of pre-school on Monday in the second week of the fortnight; and
d)Once the child commences school, from after school on Wednesday until the commencement of school on Thursday in the first week of each fortnight and from after school on Friday until the commencement of school on Monday in the second week of the fortnight.
The Mother proposes a graduated program of block time for the child with the Father during school holidays, increasing to half of the school holidays in 2015.
The Mother also proposes that the child spend time with the Father on Father’s Day and on the child’s birthday, along with an alternating period of time over Christmas each year.
The Mother also seeks orders about a number of matters, including:
a)Mother’s Day;
b)Changeover, where she seeks the Father be accompanied by his mother or one of his sisters or his aunt;
c)The Father to attend upon a psychologist, Ms V, fortnightly for twelve months;
d)The parties to attend mediation with a counsellor, Mr G, every three months, top discuss the child’s ongoing parenting needs;
e)The Mother is to ensure that that the child has necessary vaccinations;
f)The parties are to utilise a communication book;
g)The child may telephone each parent when in the care of the other parent;
h)The parties are to be restrained from using prohibited drugs at any time;
i)The Father is to be restrained from consuming alcohol when the child is in his care or for twelve hours beforehand;
j)The child is to be enrolled at (omitted) Public School to commence school in 2013;
k)The parties are not to denigrate each other or family members in the presence or hearing of the child; and
l)Certain orders about an online photo gallery and a Facebook account.
Background
The parties started living together in about June of 1997. They were married on (omitted) 2006. They separated in January 2010.
The Father was born on (omitted) 1978. The Mother was born on (omitted) 1979.
There is one child of the marriage, X, who was born on (omitted) 2007. The child lives with her mother.
From 2004 onwards Ms C has been involved with the parties. The Father met Ms C. online and, at some stage, commenced a sexual relationship with her. The Mother met Ms C. that same year. From 2006 both the Father and the Mother were sexually involved with Ms C..
On 24th March 2010 an Apprehended Violence Order was made at (omitted) Court against the Father. The Mother was named as the protected person. The Order remains in force for a period of two years.
The Father commenced parenting proceedings by means of an Application filed on 16th April 2010.
On 3rd May 2010 the Court made interim Orders providing that:
a)the child was to live with the Mother;
b)the child was to spend time with the Father:
i)each alternate weekend from 9:00am on the Saturday until 5:00pm on the Sunday;
ii)each week from 9:00am on Tuesday until 5:00pm on Wednesday;
c)the Father’s time with the child was to be spent with the paternal grandmother Mrs P until 1 July 2010;
d)the Father was to undergo drug screen urinalysis until October 2010;
e)the parties were restrained from administering any prohibited drugs to themselves;
f)the Father was restrained from consuming alcohol whilst the child was in his care or for twelve hours beforehand;
g)changeovers were to take place at the (omitted) Centre or the (omitted) in Sydney;
h)the parties were restrained from removing the child from Australia and her name was to be placed on the Airport Watch List; and
i)a psychiatrist was to be appointed as a single expert to provide a report.
The psychiatrist agreed by the parties was Dr R. Her Report was released to the parties on 9th February 2011.
On 22nd February 2011 the parties entered into consent orders finalising the property issues between them.
Evidence
The Father relied on the following affidavits:
a)his affidavit of 24th February 2011;
b)the affidavit of his mother, Mrs P, of 24th February 2011; and
c)the affidavit of Ms C of 30th April 2010.
All three deponents gave oral evidence.
It was the Father’s evidence that he had attended counselling with a psychologist, Mr L, on a number of occasions since the interim orders were made on 3rd May 2010. He had also completed the following programs:
a)Keeping Contact, conducted by UNIFAM;
b)Parenting after Separation, conducted by Anglicare;
c)Dads with Kids, conducted by Anglicare; and
d)Making Choices (Anger Management), conducted by Interrelate.[1]
[1] Affidavit of Mr Preston 24.2.2011 at paragraph [9]
The Father deposed that he was diagnosed with Crohn’s Disease in about July 1996 and had undergone extensive treatment, not entirely successfully.[2]
[2] Ibid at [10]
The Father stated that he had used marijuana, which he found to be more effective in dealing with his symptoms, in 2000, and continued to use marijuana until 20th January 2010.[3] He also stated that the Mother had used marijuana with him until 19 January 2010.
[3] Ibid at [11]-[12]
It was the Father’s evidence that he and the Mother had participated in intimate relationships with other women since about 1999, including “threesomes”. He had met Ms C online in approximately January 2004 and had commenced a sexual relationship with her shortly after.[4]
[4] Ibid at [18]
The Father deposed that the Mother did not meet Ms C until 2006, but a sexual relationship involving the three of them commenced shortly afterwards.[5]
[5] Ibid at [20]-[21]
Ms C developed a close relationship with the child X.
The Father deposed that he now works one or two days a week for his parents’ (omitted) business[6]. The Mother returned to work for two days a week in September 2007 and resumed working full-time in about 2009. When the Mother was at work, the Father would look after the child.[7]
[6] Ibid at [28]
[7] Affidavit of Mr Preston 24.2.2011 at [29]
When both parents were at work, the child would be cared for by her paternal grandmother, Mrs P.
The Father set out in some detail the arrangements for the child’s care that have been in place since the interim orders were made in May 2010. His mother still accompanies him each Tuesday when he collects the child from the Mother. On the Tuesday and the Wednesday the Father spends time with the child in various activities. On the Wednesday afternoon the paternal grandmother accompanies the Father to the changeover.[8]
[8] Ibid at [37]-[43]
The Father deposed that his mother accompanies him to the changeovers on weekends.[9]
[9] Ibid at [44] & [46]
The Father was critical of the fact that the Mother leaves the child at the day centre at (omitted) on the days when the child is in the Mother’s care.[10]
[10] Ibid at [48]
The Father was also critical of the Mother’s male friend, Mr O, known as “(omitted)”, and his interaction with the child.[11]
[11] Ibid at [[49]-[53]
The Father set out his proposals for the child’s future care, including a wish that there be a shared care arrangement. However, he deposed that:
I accept that the Court is unlikely to order this given that Dr R. has recommended in her report that X live with Ms Starkweather and that the number of days which X spends with me should increase without disturbing X’s general emotional development.[12]
[12] Ibid at [54]
The Father seeks more time with the child, and would like to be able to take her for holidays.
The Father also expressed a wish that that the interim orders restraining the parties from taking the child out of Australia without consent should be extended. He gives as his reasons:
Ms Starkweather was born in (omitted) and has no family in Australia. She also removed X’s passport from our house when she left. As Ms Starkweather has no ties to Australia other than her employment, I do hold concerns that she may leave the country with X.[13]
[13] Affidavit of Mr Preston 24.2.2011 at [63]
The Father also said in oral evidence that the Mother did not have an Australian passport. Her family all live in (omitted).
In cross-examination, the Father referred to the fact that he sought in paragraphs 57, 58, 61, 62 and 64 of his affidavit slightly different orders from those set out
The Father said that he cannot take care of the child on Friday nights, as he undertakes martial arts training from 6:00pm to 9:00pm, and he did not want to take the child to that activity.
The Father went on to say that it was important for X to go to pre-school. She turns twelve in August 2012 and will commence school at the beginning of the first school term in 2013.
He expressed the view that the Mother was a good mother but said that he was a better parent.
The Father was asked about his relationship with Ms C. He said that he ceased having a sexual relationship with Ms C. in about December 2009 or January 2010. He denied that his relationship with Ms C. was a problem in his relationship with the Mother. He also denied that his desire to continue his relationship with Ms C. contributed to the break up of his relationship with the Mother.
The paternal grandmother, Mrs P gave evidence in her affidavit that she and her husband welcomed the Mother into their family. She has spent a great deal of time with the child X since the Court made interim orders in May 2010. She described in some detail the range of activities that she and the Father have undertaken with the child, and she still has a significant involvement with X, even though there is no longer any requirement for her to supervise the Father’s time with the child.
Mrs P was cross-examined about an incident where the Father apparently fell off a balcony. She said that she had been concerned about her son’s mental state at the time and tried unsuccessfully to persuade him to see a psychologist or a psychiatrist.
Mrs P also said that she had been unaware of the three-way relationship between the parties and Ms C. until the AVO proceedings in (omitted) Court.
Ms C.’s evidence in her affidavit of 30th April 2010 was that she had met the Father in 2004 and the Mother in 2006. She deposed that after the child was born she would attend at the parties’ home “roughly every day” and stated that:
Both Ms Starkweather and Mr Preston considered me a part of their family and I considered myself a big part of X’s life and upbringing.[14]
[14] Affidavit of Ms C 30.4.2010 at paragraph [15]
Ms C. described how she had been sexually involved with both the Mother and the Father and claimed that the Mother would control sexual activity involving the three of them.[15]
[15] Ibid at [27]
Ms C. referred to the parties’ involvement with marijuana during the time that she knew them. She stated that the Father would smoke marijuana “three to four times a day”, whilst the Mother used to smoke marijuana “at least once a week” before she became pregnant. However:
After Ms Starkweather’s pregnancy, she rarely smoked marijuana.[16]
[16] Ibid at [33]
Ms C. deposed that she had not seen or spent time with the child X since 26th January 2010, when the Mother and father separated.
Ms C. expressed some reservations about the Father’s ability to have the child in his sole care, stating:
Mr Preston does not cook much and is not very confident about his cooking skills.[17]
[17] Affidavit of Ms C at [43]
She also described the Father as being “very afraid” of the Mother and wanting to limit his interaction with her because of the Apprehended Violence Order.
In cross-examination, Ms C. stated that she had no current sexual relationship with either party. Whilst she still saw the Father daily, she did not wish to continue a sexual relationship with him. She did not envisage a time when she and the Father would marry or live together.
Ms C. said that she did not see herself as an aunt to the child but rather as her friend.
The Mother relied on her affidavit of 22nd February 2011. She deposed that the parties separated finally on 26th January 2010 and the child X remained in her primary care ever since. The Mother claims that, following the child’s birth, she was primarily responsible for the child’s day to day care.
The Mother stated that she returned to work on a part time basis on 16th November 2007. She returned to full time work in July 2009 for four months, but then went back to working part-time. She deposed that when she commenced part time work:
X was in Mr Preston’s care on the days that I had to work. Mr Preston was not often looking after X on his own, as his mother, Mrs P (”(omitted)”), assisted us in looking after X…Mr Preston’s girlfriend, Ms C, was also involved in looking after X as she finished work at about 4:00pm and she would often attend our home after work prior to me returning home from work.[18]
[18] Affidavit of Ms Starkweather 22.2.2011 at paragraph [20]
The Mother referred to the Father’s drug use during the marriage:
I have often seen him smoke marijuana 5 to 6 times per day, smoking up to nine cones a day. This amounts to smoking every 2 to 3 hours in a day.[19]
[19] Affidavit of Ms Starkweather at [26]
The Mother described the Father as being “withdrawn, inactive, slow in reacting, and appeared to not know what was happening around him” after he smoked marijuana.[20]
[20] Ibid at [27]
The Mother admitted that she, too, smoked marijuana during the relationship, but said that she only did so about twice a month, and only at the Father’s insistence. She stated that she ceased using marijuana in January 2010 and never smoked in the child’s presence.[21]
[21] Ibid at [29]
She also stated that the Father commenced drinking alcohol to excess in late 2007. She stated:
I observed that after Mr Preston consumed alcohol, his behaviour would be uncontrollable. He would cry, rant, pace, and stumble around the house, and eventually he would pass out on the floor.[22]
[22] Ibid at [31]
The Mother described the Father as “very controlling…aggressive and very intimidating”[23]. She said that she observed the Father to have “frequent severe mood swings”.[24] She also described the Father as engaging in irrational, aggressive and destructive behaviour when they argued or he disagreed with something she had done. She deposed that on one occasion in 2003 he jumped from the balcony of their apartment, breaking his spine and wrist, which led to his spending two weeks in intensive care in hospital.[25]
[23] Ibid at [[33]-[34]
[24] Ibid at [35]
[25] Ibid at [36]-[38]
Contrary to the Father’s evidence, the Mother stated that it was the Father who initiated the sexual activity involving himself, the Mother and Ms C, as well as another woman on one occasion.[26]
[26] Ibid at [49]-[51]
Dealing with the present arrangements for the child, the Mother deposed that she maintained a courteous and pleasant relationship with the paternal grandmother. Mrs P would use the communication book to deliver information about X, which the Father declined to do.
The Mother wishes that the child should attend the (omitted) Public School when she starts school in 2013. The school is situated only 100 metres from the Mother’s residence.
The Mother deposes that she supports the child in maintaining a relationship with the Father and his family members. However, it is her proposal that the child should live with her and spend time with the Father for three nights a fortnight.
The Mother was cross-examined and maintained her evidence. However, despite the good relationship that she enjoys with the Father’s parents she said that she was not prepared to drop the child off at their home.
The Single Expert Report
Dr R, a Child and Family Psychiatrist, prepared a Report for the purpose of these proceedings.
For the purposes of her report, Dr R. interviewed both parents and the paternal grandmother. She also observed the child in the presence of each parent, and in the presence of the maternal grandmother, who was visiting from (omitted).
Dr R. described X as “a bright, determined three and a half year old whose emotional development is being disturbed by the parental discord…X needs protection from emotional states in her parents which leave them preoccupied and unmindful of her experiences of them at these times”.[27]
[27] Report at page 15
Dr R. described the Mother as “an intelligent, articulate young woman, who portrayed herself as the victim of an enmeshed, emotionally and sexually abusive relationship of her ex-husband”.
Whilst there was a dispute between the parties as to who was the victim in “a disturbed and disturbing couple relationship”, Dr R. saw the couple relationship as “noxious to both of them” and one that continued to impinge negatively on their capacity to parent the child. However, she expressed the view that the Mother, by leaving the relationship, demonstrated an awareness of the need for healthy boundaries between her and the Father and she had some insight into the dysfunction of the marriage “and acted to provide something different for herself and X”.[28]
[28] Report at 15
Dr R. described the Father as “a caring and committed parent” but one who presented as being preoccupied with his relationship with his ex-wife and grieving its loss.
In considering the proposed living arrangements, Dr R. made these points:
a)The child requires predictable, adequate, consistent time with both parents, as free from the parental emotional issues as possible;
b)Parental responsibility should continue to be shared;
c)Dr R. supports the child continuing to live with the Mother because the Mother took the initiative to change the parental relationship and the child has separation anxiety with her;
d)The child must spend substantial time with her father to ensure her attachment to him remains intact;
e)She should especially be part of the Father’s extended family events to offset the limited availability of the maternal family; and
f)Personal contact between the parents should be avoided outside the mediation sessions.
Dr R. made the following recommendations:
i)That X live with her mother and spend the majority of time in her care;
ii)That X spend time weekly with her father, as is age appropriate, overnight contact to commence and the number of days increasing without disturbing her general emotional development; and
iii)Handovers to occur via childcare/school when possible.[29]
[29] Report at 16
Dr R. was cross-examined by the Father and by Mr Levy of counsel, who appeared for the Mother. She expressed the view that it would be good for the child to spend more time with her father, but said that this was a case where there needed to be some caution about how and how quickly the increased time with the Father should extend.
Submissions
Mr Levy submitted on behalf of the Mother that the Mother should have sole parental responsibility for making decisions about medical matters, including vaccination and inoculation. Otherwise, there should be equal shared parental responsibility.
It was also submitted that when the child X reached school age she should attend (omitted) Public School, or such other school as the parties may agree.
Mr Levy submitted that there was no basis for the order sought by the Father placing the child’s name on the Airport Watch List. The child’s maternal grandparents and other extended family live in (omitted) and the Mother has never tried to take the child out of the country.
Further, Mr Levy submitted that his client would accept either a continuation of the interim orders made on 3rd May 2010 or the Order set out in her Minute of Order.
Mr Levy submitted that there were some “worrying” features about the evidence. First, there was a history of use of marijuana by the Father, who failed to acknowledge that it was a significant problem in the relationship.
Second, whilst the Court may not be able to make a finding of fact about the circumstances in which Ms C was invited into the relationship, the Court should accept the Mother’s evidence on that point over the Father’s evidence. The Court should be concerned about Ms C’s evidence and the current status of her relationship with the Father. Both the Mother and Ms C were vulnerable, socially isolated women, and the relationship involving Ms C. was inappropriate. However, the circumstances of the relationship, he submitted, provided a good indication of the Father’s controlling and passive aggressive approach.
It was also a matter of concern, he submitted, that the child appeared to suffer separation anxiety when parted from her mother. Any orders made should be sensitive to the child’s young age. As the Father appeared to unable to distinguish between his own needs and those of the child, there would be a need to protect her from psychological and emotional harm, including an exacerbation and continuation of her separation anxiety.
Mr Levy submitted that the parties had a current inability to co-parent, especially on medical issues.
The child had a relationship with both of her parents, but an anxious attachment to her mother. The maintenance of existing relationships would support the child. The orders sought by the Father, that the child should spend equal time with each parent, would have a catastrophic effect on the child, because she would be away from her mother for extended periods.
The Father submitted that Dr R. had given him credit for managing X’s separation anxiety.
He said that he still held fears that the Mother might take the child to (omitted) and not return her. He pointed out that (omitted) is not a Hague Convention Country.
The Father stated firmly that he did not say to Dr R. that the Mother was a bad mother, and that was not his view.
The Relevant Law
In deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration (Family Law Act, s.60CA). The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s. 60CC.
When making a parenting order, the Court is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child concerned for his or her parents[30] to have equal shared parental responsibility for the child. However, the presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility.
[30] “her” in this case
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent.
If the Court does not make an order for the child to spend equal time with each parent, then subsection 65DAA(2) provides that the Court must consider whether it is both in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent.
I have considered all of the matters contained in those sections, where relevant.
This case involves an application by the Father for Orders restraining the Mother from removing the child from Australia and for the child’s name to be placed on the Airport Watch List.
In any matter where a party may seek to take a child out of the jurisdiction temporarily, the Court must consider whether there is a risk that the child will not be returned to Australia. The Full Court of the Family Court of Australia considered this issue in Line & Line[31], which concerned an application to take a child out of Australia to the United States of America for a holiday.
[31] (1997) FLC 92-729
The Full Court held that the Court must consider the degree of risk that the child will not be returned to Australia, which includes whether the country or countries of travel are signatories to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (known as “The Hague Convention”), (see also Family Law Act, s.111B).
Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986 sets out a list of Convention countries. (omitted) does not appear on the list in Schedule 2 and is therefore not a Convention country.
The Mother seeks an order relating to the child attending the (omitted) Public School at the start of the 2013 school year. The Father has made no serious opposition to this proposal and has not offered any evidence as to whether another school should be preferred.
When making a decision about the proper school for a child to attend, it is not the case that there is any presumption that favours acceding to the proposal of the parent with whom the child is living. The Court must consider the best interests of the child concerned, by having regard to the objects of Part VII of the Family Law Act, and to the principles underlying Part VII, as set out in s.60B of the Act (see Re G: Children’s Schooling[32] AT [65-[67]).
[32] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
An order relating to the particular school a child is to attend is a parenting order, as defined in s.64B(2) of the Act:
(i) any other aspect of the care, welfare and development of the child or any other aspect of parental responsibility for a child.
Conclusions
This is a case where the parents have been involved in an unconventional relationship before and after the birth of the child. There is evidence that the parties took part in an ongoing three-way sexual relationship with Ms C., who played some part in assisting in the care of the child when she was younger. There are different accounts from the parties as to who was the dominant party in the sexual relationship, which was not a ménage a trois as such, in that Ms C. always maintained her own separate residence, although she was a frequent visitor to the home of the mother and father.
What can be said with certainty is that the sexual relationship finished and there is no reason to disbelieve Ms C. when she states that she does not envisage either marrying or living with the Father.
There is evidence that both the Father and the Mother engaged in the use of marijuana, although to different degrees. The evidence of Ms C. supports the Mother’s claim that the Father smoked the substance more than the Mother did and that the Mother ceased using the drug once she became pregnant with X.
There is evidence of abuse of alcohol by the Father, along with erratic behaviour on his part. There are different accounts given of the circumstances of the Father’s fall from the balcony of the parties’ home, although there is no account that shows the Father in a particularly good light.
It is clear that the relationship between the parties was a dysfunctional one well before the time of separation. However, all these matters should be considered in the light of the fact that the parties have separated and will remain so.
The best wishes of the child X remain the paramount consideration. The evidence, particularly the Report by Dr R., shows that there is a benefit to the child in having a relationship with both of her parents. At the same time, the Court must have a concern about the need to protect the child from psychological harm. The evidence was that the Father had not emotionally separated from the Mother and would send or give her messages at changeover that he still loved her. The Mother took the step of separating from the Father when she realised that their dysfunctional relationship was not assisting X, which is to her credit. It is of concern that the child appeared to suffer from separation anxiety when away from her mother, and the orders made by the Court need to take this into account.
The Father’s time with the child is not presently being supervised and Dr R. has made it clear in her Report that there is no need for supervision.
Whilst it appears that the Mother has ceased using marijuana, the Court cannot have the same confidence about the Father, whose involvement was the greater of the two parties. It is not conducive to the safety of a young child for a parent to be smoking a substance such as marijuana when the child is in that parent’s care. Similarly, over-use or abuse of alcohol by a parent is not conducive to the welfare of a child in the care of the particular parent.
The child’s views were not directly obtained, because of her young age. However, the Court has had the benefit of the Report from Dr R., who describes the child as reuniting “enthusiastically” with her father at the interview on 6th January 2011[33]. Dr R. also described the child as showing distress at “leaving her beloved father” at the conclusion of the interviews.[34] The child is attached to both parents and has separation anxiety with her mother, according to Dr R..
[33] Report page 4
[34] Ibid at 15
The child has a positive relationship with both parents, notwithstanding the parents’ differences with each other. It is clear that she has a strong relationship with her parental grandmother, Mrs P, who has played a significant role in her care. Mrs P. has also been helpful in assisting her son with changeovers and the Mother speaks highly of Mrs P.’s actions.
X’s relationship with her paternal grandmother, and to her paternal grandfather, is beneficial to her and should be continued.
The child has had a lesser involvement with he maternal grandmother, although she was present when the parties met Dr R. on 8th December 2010. However, the maternal grandparents live permanently in (omitted) and consequently are unable to spend a great deal of time with X.
One person who has had an involvement with the child in the past is, of course, Ms C. Ms C.’s evidence was that she would play with the child and otherwise look after her on weekdays and weekends. However, her evidence was that she had not “heard from, seen or spent time with X since 26 January 2010”.[35] No evidence was offered to show that Ms C. would be playing any, or any significant, role in the child’s life in the immediate future. Ms C. did not attend the interviews with Dr R. in December 2010 and January 2011 and is described in the Report only in terms of her sexual relationship with the parties.
[35] Affidavit of Ms C 30.4.2010 at [36]
The evidence leads to the inference that the child’s relationship with Ms C. is in the past and is unlikely to be revived.
The Court must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship with the other parent. There is evidence that each parent understands the importance to X of a close and continuing relationship with her mother and father.
The likely effect of a change in the child’s circumstances, particularly if the Father’s wish for her to spend equal time with each parent on a week about basis were granted, would be significant. Dr R. does not recommend such a proposal. The child’s separation anxiety in respect of her mother would be exacerbated if she were to spend a week away from her and it would not, in my view, be in her best interests.
The practical difficulty and expense of the child spending time with each parent is not great. The parents live in different suburbs of
Sydneyand have arranged changeovers either at (omitted) or in the city. The Mother does not drive a car, which is a practical difficulty. The Mother also does not want to spend much time in the presence of the Father. She was the one who precipitated the separation.
Each parent appears to have the capacity to provide for the child’s physical and intellectual needs. Both parents need to be aware of the child’s emotional needs. As Dr R. said at page 16 of her Report:
X requires predictable, adequate, consistent time with both parents, as free from the parental emotional issues as is possible.
The child X is a little girl aged four and a half years old. Her father was born in Australia and his extended family live in Australia. The Mother was born in (omitted) and her extended family live there. The Mother has lived in Australia for over fifteen years.
The parents each have a positive attitude to the child, although they are at times critical of the other’s parenting ability. The Mother is concerned about the Father’s rejection of western medicine, particularly concerning vaccination and inoculation, and wants to have sole parental responsibility in this regard. The history of the parents’ drug use and abuse of alcohol by the Father does not sit well with the responsibility of parenthood, although it is noteworthy that the Mother has ceased her use of marijuana.
There are family violence issues. The Mother complained of violent behaviour by the Father during their time together.
There is an Apprehended Violence Order in force against the Father. The Mother is the protected person. The child is not named in the order. The order was made by the (omitted) Court on 24th March 2010 and remains in force for a period of two years from that date. The order is in standard terms. The Father did not oppose the order being made.
It would be preferable to make an order that would be least likely to lead to the institution in relation to the child. There should be final orders that will allow this child to maintain a positive and nurturing relationship with each parent. Dr R. recommended that the child should live with the Mother and spend the majority of time in her care. She should spend time weekly with her father and her time with her father should increase without disturbing her general emotional development.
Orders that generally follow Dr R.’s recommendations would appear to be in the child’s best interests and be less likely to lead to the institution of further proceedings in relation to the child.
The Father seeks an order that the parties should have equal shared parental responsibility for X. The Mother’s proposal is for something less, namely that she should have sole parental responsibility for all decisions involving the child’s medical treatment and that the parties should otherwise have equal shared parental responsibility.
The parties do not appear to have the necessary degree of co-operation on parenting issues for the Court to make an order for equal shared parental responsibility. In any event, the existence of the family violence order means that the presumption of equal shared parental responsibility does not apply.
The Father’s attitude to medical matters is of some concern, in that it differs significantly from that of the Mother. He told Dr R. in writing that he was “western medicine free since 2002, totally since 2010”.[36]
[36] Report page 11
The Mother described at paragraphs [83] to [88] of her affidavit of 22nd February 2011 how she had difficulty in obtaining agreement from the Father about the child having a Measles, Mumps and Rubella vaccination. The Father’s refusal to consent does not augur well for future communication between the parties about medical issues concerning the child.
I am satisfied that the Mother should have sole parental responsibility for all health and medical matters involving the child.
There can be equal shared parental responsibility about other issues.
I am not satisfied that it is in the child’s best interests to spend equal time with each parent. Dr R. does not recommend it. She recommends that the child spend the majority of time with the Mother. I am of the view that the child should spend substantial and significant time with her father, at least once she has settled into school next year. I am of the view that the present interim orders should continue until the child commences school, with only minor adjustments, in order to allow this child to continue with a stable routine.
In 2013 the child will commence school. That will of itself bring about a change in her routine and an increase in the time she is to spend with her father can take place then.
Dr R. has suggested that, where possible, changeover should take place at the child’s school or pre-school, in order to minimise contact between the parents. That appears to be in the child’s best interests, as acrimony or tension between the child’s parents can be unsettling for the child.
When X starts to attend school, the Mother suggests that the child should go into the care of her father on alternate weekends, from after school on Friday until the commencement of school on Monday. This is desirable not only to reduce the interaction between the parents but to give the Father some opportunity to play a part in the child’s schooling. However, it seems to me to be desirable that, in the case where the Monday after the child’s weekend with the Father is a public holiday, the child should stay with her father on the Monday and then go to school on the Tuesday.
The advantages of this scheme are that not only is the interaction between the parents reduced but it allows a slight increase in the child’s time with her father.
The Mother wishes the child to commence her schooling at (omitted) Primary School. It would appear that the child lives in the catchment area for the school and would be able to secure enrolment there. The child has been attending the (omitted) Centre, which is a pre-school near to the child’s home.
The Mother’s reasons for enrolling X at the (omitted) Public School are given in her affidavit:
Our home is 100 metres from (omitted) Public School, which is the school I propose to enrol X into for her primary education. I know of a number of young families in the area and many of their children also attend (omitted) Public School. The school is one of the top 10 primary school(s) in New South Wales, with exceptional performances in year 5 and year 6 for literacy and numeracy. (omitted) Public School also has “Occupational[37] Classes” for gifted children.[38]
[37] This appears to be a clerical error, and what the mother means is that the school has opportunity classes.
[38] Affidavit of Ms Starkweather 22.2.2011 at [140]
The Father has not brought any evidence in support of any other potential school for the child.
The best interests of the child lead to the finding that it is appropriate for her to commence her schooling at the (omitted) Public School at the beginning of the 2013 school year. It is clearly a benefit to her to attend school within walking distance of the home of one of her parents. As she is attending pre-school in the area, it is likely that a number of her friends from pre-school will also commence at (omitted) Public School next year.
I am satisfied that the child should attend the (omitted) Public School.
The Father seeks an order restraining each party from taking the child out of Australia without the prior written consent of both parents. He deposes that he and the Mother have settled their property proceedings and, as a result, the Mother will receive an amount of cash.
The Father also deposes:
Ms Starkweather was born in (omitted) and has no family in Australia. She also removed X’s passport from our house when she left. As Ms Starkweather has no ties to Australia other than her employment, I do hold concerns that she may leave the country with X.[39]
[39] Affidavit of Mr Preston 24.2.2011 at [63]
The Court must assess the risk of the Mother removing the child from Australia and not returning her. The Father points out, correctly, that (omitted) is not a party to the Hague Convention, which would make it more difficult for him to bring about the child’s return to Australia.
Against this, the Mother has not sought an order permitting her to take X out of the country. Section 65Y of the Family Law Act makes it an offence for a party to proceedings in which a parenting order was made to remove a child from Australia without either the consent of each person in whose favour the order was made or a Court order.
However, if the Mother did decide to remove the child from Australia in contravention of s.65Y, it would be possible for her to do so, leaving the Father in some difficulty in endeavouring to secure her return, due to the fact that (omitted) is not a Convention country.
The risk is relatively low at present, and is likely to diminish over the next few years. However, I am satisfied that at this stage it is appropriate to extend the operation of orders (9) and (10) made on an interim basis for a limited time. The child’s name will remain on the Airport Watch List for a period of three years.
Those are the reasons for the parenting orders in this case.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 February 2012
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