Raki and Perez Varela (No 2)

[2013] FamCA 1050

FAMILY COURT OF AUSTRALIA

RAKI & PEREZ VARELA (NO 2) [2013] FamCA 1050

FAMILY LAW – CHILDREN – Interim parenting – Where the mother has not complied with Final Orders which provided for the father’s time with the child to be increased on a progressive basis – Where the mother has been obstructive of the father-child relationship – Best interests of the child – Meaningful relationship with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

Marvel & Marvel (No. 2) [2010] FamCAFC 101
Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Raki

RESPONDENT: Ms Perez Varela

INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

FILE NUMBER: PAC 6845 of 2007

DATE DELIVERED: 9 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hugh J Byrne Family Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

Orders

1. That pending further order, the child spend time with his father as follows:

   (a)Each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday commencing on Friday 20 December 2013;

   (b)For a period of four (4) days commencing at 9.00 am on 29 December 2013 until 9.00 am on 2 January 2014 and for a period of five (5) days from 9.00 am on 18 January 2014 to 9.00 am on 23 January 2014.

IT IS NOTED THAT:

(a)That the Court otherwise notes as follows, pursuant to Orders made by Johnston J on 1 March 2013, the child will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and further upon resumption of school term in Term 1, 2014 each alternate weekend during school term from 5.00 pm Friday to 5.00 pm Sunday and each Thursday from after school until 8.00 pm.

(b)That the Court further notes that the changeover arrangements for the father’s time with the child will be effected at McDonalds Family Restaurant nearest to the mother’s place of residence, being the McDonalds Family Restaurant at N Town.

IT IS FURTHER ORDERED THAT:

1. That leave is granted to the Independent Children’s Lawyer to relist these proceedings on short notice by application to the Court in chambers.

2. That the mother file and serve a Response and an affidavit in support of interim orders sought by her by no later than Friday 24 January 2014.

3. That otherwise the matter be adjourned to the Registrar’s duty list at 9.30 am on 17 February 2014.

4. That the Court arrange an Interpreter for the mother for the next occasion.

5. That, by consent, that during the time the child spends with the father on alternate weekends the father shall facilitate the mother having Skype communication with child on Saturday between 5.00 pm and 6.00 pm, and during block periods that the child is spending time with the father, on each alternate day between 5.00 pm and 6.00 pm, unless otherwise agreed between the parties.

IT IS FURTHER ORDERED THAT:

(c)It is noted that there has been some difficulty in the father contacting the child at the mother’s residence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raki & Perez Varela has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6845  of 2007

Mr Raki

Applicant

And

Ms Varela

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The Proceedings

1. These are parenting proceedings commenced by the Applicant father by an application filed on 13 September 2013 in relation to the child, R, born in 2007. 

2. In his application filed on that date, the father, in summary, seeks orders that:

   a)The parties have equal shared parental responsibility for the child; 

   b)That the child live with him; 

   c)That the child spend defined time with the mother, being alternate weekends during the school term, half of school holidays and other special days. 

3. The father’s application is supported by an affidavit filed on 13 September 2013, and that affidavit is incorporated into these reasons for Judgment.

4. Previous parenting proceedings were conducted between the parties and were heard on 2, 3 and 4 October 2012 by Johnston J at Parramatta.  His Honour delivered detailed and considered reasons for Judgment on 1 March 2013 and, in summary, made Orders that the mother and father have equal shared parental responsibility, the child live with the mother and the child spend graduated time with the father, in various stages. 

5. If those stages had been complied with, the father’s time with the child presently would be each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday, each Thursday from after school until 8.00 pm, half of the school holiday periods and other special days, including Father’s Day, the child’s birthday and Christmas.

6. His Honour further ordered that changeovers were to occur at the B Contact Centre for the first 12 months, provided the Centre was available.  If the Contact Centre was unavailable at any time and after the first 12 months, changeovers were to take place at the McDonald’s Family Restaurant nearest to the mother’s home, whichever she elected. 

7. The evidence before the Court, as set out in the father’s affidavit, is that there has been significant difficulties in him implementing time with the child and only more recently has his weekend time commenced in accordance with Order (5)(d) made by his Honour on 1 March 2013.

8. That order provided for the father to have time with the child from 9.00 am Saturday to 5.00 pm Sunday. 

9. The first of such days occurred on Saturday 9 November 2013.  The father has thereafter had alternate weekend time from Saturday morning to Sunday afternoon, with changeovers being effected at the McDonald’s Family Restaurant nearest to the mother’s home. 

10. The father brings his application on the basis of the mother’s obstruction of his time as provided for by the Orders of Johnston J and it is clear, in the way in which the mother has conducted herself today before the Court, that she remains obstructive and obstinate in relation to implementation of the father’s time with the child.

11. Had the Orders been complied with, the father would be having extended weekend time and a period of approximately two and a half to three weeks blocked time with the child during the forthcoming school holiday period. 

12. The mother has indicated to the Court that she is agreeable to the father’s weekend time being expanded to 5.00 pm Friday to 5.00 pm Sunday as from 20 December 2013.

13. The mother was served with the father’s application shortly after filing in late September 2013, yet has not filed any material in response, notwithstanding the matter was before the Court on 8 October 2013 on which date the mother was ordered to file and serve her documents within 21 days. 

14. The matter next came before Hannam J on 5 November 2013, and her Honour reappointed the Independent Children's Lawyer to the proceedings and made Orders to the effect that the father’s time resume on the weekend of 9 November 2013.  Her Honour further ordered that in default of the mother complying with Court Orders there was leave to relist.  Her Honour then stood the matter over for further interim hearing to today’s date. 

15. Notwithstanding the previous Orders made by the Court as to filing of documents, the mother has failed to do so. The mother has appeared today with the assistance of an interpreter. 

The Law & Discussion

1. These are parenting proceedings, and the Court is conscious of the observations of the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101, where the Full Court said:

   Often decisions that judicial officers have to make in interim proceedings are difficult and, often for good reason, a conservative approach, or one which is less likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after final hearing.

2. The law in relation to parenting is very well settled, and in this regard, the Court refers to the decision of Goode & Goode [2006[ FamCA 1346. 

3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the legislation, and the Court has had regard to those objects and principles. Section 60CA provides:

   In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child.  Section 61DA provides:

   When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   That provision has no application today, as there was already a Final Order providing for equal shared parental responsibility, and indeed in terms of the current application by the father, that is the order that he seeks.

5. Accordingly, the orders to be made today fall to a consideration of the best interests consideration set out in section 60CC. 

6. The primary considerations comprise:

   (a) the benefit to the child of having a meaningful relationship with both of the children’s parents;  and

   (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

   The primary issue for the Court today is, of course, the benefit to the child of having a meaningful relationship with both parents, and in that regard, the Court refers to the observations by Brown J in Mazorski & Albright [2007] FamCA 520. The Court should consider a meaningful relationship to be “... one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one”.

7. Effectively, in the context of this interim hearing, it is the primary consideration that will determine the orders to be made by the Court, because the sole issue in reality is the process by which the father’s relationship with the child, that is, the meaningful relationship, is to be restored pursuant to the Orders made by Johnston J. 

8. The wife has been obstructive in that regard, but nevertheless, the child has had, over the last six weeks or so, alternate weekend overnight time with the father, and notwithstanding her other representations to the Court today, the mother has not complained as to any adverse circumstance arising from the father’s time with the child. 

9. In reality, pursuant to the Orders of the Court, the father is entitled to have half of the Christmas school holidays, but quite sensibly in the context of the matter coming before the Court today, he does not press for such an order, nor does he press for an order that provides for the child to live with him on an interim basis, although such an order may be pressed at a future date, subject to the mother’s compliance with the Orders to be made today.

10. The Court has had regard to each of the section 60CC factors insofar as they are relevant to these proceedings and those factors are set out in detail in the Judgment of Johnston J delivered on 1 March 2013. 

11. In all of the circumstances, the Court is satisfied that it is appropriate to make the following further interim parenting orders in this matter, consequent upon the Orders made by Hannam J on 5 November 2013.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 9 December 2013.

Associate: 

Date:  24 January 2014