R and McD - [2006] FMCAfam 725

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & McD

[2006] FMCAfam 725

FAMILY LAW – Children – interim application that child spend time with father – parties agree equal shared parental responsibility presumption applies – parties agree child should not spend equal time or substantial and significant time with father – little undisputed evidence to guide decision.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Applicant:

Respondent:

McD

File Number:

PAM3895 of 2006

Judgment of:

Halligan FM

Hearing date:

4 December 2006

Date of Last Submission:

4 December 2006

Delivered at:

Parramatta

Delivered on:

4 December 2006

REPRESENTATION

Solicitors for the Applicant:

Ms Thompson

Counsel for the Respondent:

Ms Snelling

ORDERS

Pending further order, the parents shall have equal shared parental responsibility for the child BEMcD born 28 August 2005.
Pending further order, the child shall live with the mother.
Pending further order, the child shall spend time with the father:
(a)Each Saturday from 9am to 5pm commencing 9 December 2006;
(b)On two Sundays in three, being the first and second Sundays, from 9am to 5pm commencing 4 February 2007.
The matter is listed for final hearing before me at 10am on 12 June 2007, estimated hearing time two days, in relation to parenting issues.
The applicant shall pay or secure an exemption or waiver of the

setting down fee within the earlier of three months from today, or

14 days before the hearing date.
An order for a Family Report is made in accordance with exhibit C.
If a party wishes to cross examine the author of the Family Report, the party shall notify the Manager, Child Dispute Resolution in writing at least 14 days before the hearing date or within seven days after receiving a copy of the Family Report, whichever is the later.
The applicant shall file and serve any amended response within

14 days.
The respondent shall file and serve any amended response within

14 days thereafter.
Not less than 21 days before the hearing, each party shall file and serve one affidavit of the party setting out any further evidence in chief and one affidavit of each other witness intended to be relied on at trial.
Not less than seven days before trial, each party shall file and serve a case outline setting out the final orders sought, a chronology, a list of documents to be relied on at trial, and a summary of argument in support of the parties' case, having regard to each of the relevant considerations in s.60CC(2) and (3).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM3895 of 2006

Applicant

And

McD

Respondent

REASONS FOR JUDGMENT

This is the hearing of competing interim parenting applications in relation to the child, B, born 28 August 2005. The parties are B's parents.
In deciding this matter, the child's interests are the paramount consideration (Family Law Act 1975, s.60CA), but the Court however, under Part VII of the Family Law Act as it is now structured, is required to apply a rebuttal presumption that it is in the child's best interests for the parents to equally share parental responsibility for the child (s.61DA). It is agreed that such an interim order should be made in this case.
When such an order is to be made, the Act now further requires that the Court must consider making an order for equal time, and if not, for substantial and significant time, in addition to considering the competing applications of the parties to the extent they do not amount to either equal time or substantial and significant time (s.65DAA). It is conceded that at this stage, it is not in the child's best interests for there to be either an equal time or a substantially significant time order made.
In determining what is in the child's best interests, the Court is required to have regard to the relevant criteria set out in s.60CC, particularly the primary considerations in sub-s.(2), and the additional considerations in sub-s.(3), and to the extent that some of those additional considerations are informed by these provisions, by sub-s.(4) and (4A) as well.
Having said that, the fact is that this is an interim hearing. The Court at this stage has not heard all the evidence. There has been no testing of the evidence by way of cross-examination, and there is certainly no expert evidence available to assist the Court. The process is therefore quite limited and constrained. It means that the decision itself is similarly limited and constrained. The Court cannot now make fine distinctions as between the proposals of each of the parties as to where the best interests of the child lies. The Court is required, rather, to proceed to the extent that it can on what appear to be non-controversial facts and do the best it can in those circumstances.
The position in this particular case is that there is no true status quo in my view. Whilst the parties separated in March and there was initially a period where the father spent no time with the child, by way of agreement at mediation, the father has been spending time with the child since June. That initially commenced, as I understand it, to be one hour per day for three week days per week, Monday, Wednesday and Friday, and for some period of a few hours on one day per weekend as it later became. That more recently has been affected by the father having changed jobs and not being available to exercise the mid-week time with the child, leaving him with just the two hours on the weekend.
There is a dispute between the parties as to the extent to which the father was involved in the care of the child before the parties separated in March this year, but nonetheless, it is clear that the father was a member of the child's household and it is not suggested that he had nothing to do with the child, or the child with him.
Notwithstanding the child's very young age at the time the parties separated, I infer that the child would have had some relationship with the father, but is more likely than not to have had a stronger one with the mother. As I say, since then, the father's time with the child has been rather problematic, there initially being none for the first three months and then since then, some hours per week spread over a number of occasions, some of which has not always occurred.
Now what the father is seeking is that he spend time with the child on a three-weekly cycle commencing next Friday, 8 December, for two weekends out of three, from 5pm Friday to 5pm Sunday, and on a three weekly cycle commencing on the same day, 8 December, for one weekend out of three from 4.30pm Friday until 9am Saturday. Thus, the child would be spending time with the father every weekend, two out of three, 5pm Friday to 5pm Sunday, and the other one, 4.30pm Friday to 9am Saturday. The father also seeks an order that the child spend four weeks in each calendar year with him in conjunction with the father's annual leave. He also proposes arrangements in relation to Christmas, Easter, the child's birthday, his birthday, Father's Day and Mother's Day.
The father's application in its terms does not, other than for some spending time on special days, provide for the child to be with the mother, but a clear inference from the way the application is drafted is that other than at times the child either lives with or spends time with the father or is otherwise to spend time with the father on special days, that the child would live or spend time with the mother.
The mother proposes that the child live with her and spend time with the father. She also proposes that there be equal shared parental responsibility. The mother proposes that the child spend time with the father each Saturday from 10am to 4pm for four weeks, then from

10am to 6pm each Saturday for eight weeks, then each alternate weekend from 10am to 6pm Saturday, and 10am to 6pm Sunday, until the child is two, that is, 28 August 2007, and thereafter each alternate weekend from Saturday, 10am to Sunday, 6pm. She also proposes that the child spend each Wednesday from 6.30pm to 8.30pm from when the child commences to spend the alternate weekends Saturday and Sunday but not overnight with the father.
The mother is currently living with her parents. The father was living in the home that the parties had occupied up to their separation, but at some point, and inferentially it seems to have been some point between him swearing an affidavit on 27 June, which was not filed for nearly two months, and him swearing a further affidavit today, he has moved from the Cranebrook address to an address at Glenmore Park. He gives no evidence about this move. There is no evidence as to when it happened, the nature of the accommodation and as to whether there are any other persons residing in those premises, and if so, his relationship with them and their relationship with the child. There is certainly no indication as to whether or not any other persons assist him in the care of the child or whether he would propose that they do so.
I must confess that this is a little troubling in the sense that, as I understand it, the mother does not admit having knowledge of the accommodation herself. She asserts that the father informed her that there was a boarder in the premises and she does not admit any knowledge of the boarder, and when I was gaining information to assist in setting this matter down for final hearing, it was disclosed by the father's legal representative at the Bar table that he in fact is

co-habiting with somebody, initially described as his girlfriend, but on the basis of the stated co-habitation, this person must be now his

de facto partner.
This person is proposed to be called as a witness in the final hearing. She is not acknowledged or referred to in any way in the father's material and certainly is not on affidavit. As I say, exactly how and in what way, if at all, this person may be involved in the father's care of this child, and the way the child might be involved with this person, is simply not disclosed by the father. That does not necessarily mean that there is anything wrong with this person, or that this person would not be able to, if the father sought that she do so, assist him in the care of the child. But the father is simply totally silent on these points.
From that, the Court is entitled to draw an inference, this evidence being available to him to put before the Court and he choosing apparently not to do so, that this evidence would not have assisted his case.
Beyond that, the Court is pretty much left to generalities and doing the best it can on what to some extent are subjective views or prejudices of each of the parties as to whether, when and in what circumstances the father might appropriately assume greater care of the child and greater involvement in the child's life.
It is argued on behalf of the mother that the child’s young age means that one should tread very carefully and very slowly in escalating the amount of time with the father. Why that is, in an evidence-based sense, is not disclosed. I accept it to be the mother's view. It may or may not be a correct one. I am simply not given any evidence upon which I can make any assessment objectively of the rightness or otherwise of her position. Similarly with the father; he suggests he should be able to spend much greater time with this child at this age. Again, I have nothing in relation to this particular child to really assist me much in making that decision.
The Court is therefore forced to fall back upon rather broad generalities. Certainly, the Court must take into account the first of the primary considerations under s.60CC(2), the benefit to the child of having a meaningful relationship with each of the child's parents. At the moment, the child is spending relatively little time with the father. It was relatively frequent, occurring several times a week, until the father's work commitments intervened, and broadly, that is often seen as being more appropriate for very young children and infants.
However, because of the father's changed work commitments, he now apparently is not able to avail himself of the mid-week time, which means that one is forced to look at the child developing the relationship with the father simply on weekends. As I say, in one sense, that may not fit well with the child's likely stage of development at her age. The mere young age of the child, however in my view, does not automatically mean that the father ought not be spending longer periods of time with her, or her with him.
There is no suggestion of a need to protect this child from a risk of abuse or family violence. And otherwise, so far as the additional considerations under s.60CC(3) are concerned, there is little evidence that I can make any findings on, beyond the one that I have already made in relation to the relationship between the child and each of the parents. That is, that I am satisfied there is one, and it is more likely to be stronger with the mother than the father.
Doing the best I can on that fairly limited evidence, I take the view that, bearing in mind there is no suggestion anywhere in the mother's evidence that this child has not handled well and appropriately the time that the child has spent with the father from June until now, or that the child has shown any adverse reaction to being away from the mother, I am satisfied that it is now appropriate to commence to extend the time the child spends away from the father. Bearing in mind that I intend to set this matter down for final hearing in June, about six months away, that gives some indications of the timeframe for these orders to operate.
In those circumstances, what I propose to do is order that the child commence spending each Saturday with the father from 9am to 5pm commencing this coming Saturday, and from 4 February next year, in about eight weeks' time, at least eight weeks after the commencement of expanding time under these orders, the time will increase to include two Sundays in three. That is, in any group of three weekends, the child will spend both Saturday and Sunday on two of those weekends with the father, and Saturday only with the father on the remaining weekend.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 18 January 2007