Randell and Reilly

[2011] FamCA 673

FAMILY COURT OF AUSTRALIA

RANDELL & REILLY [2011] FamCA 673

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Randell

RESPONDENT: Mr Reilly

FILE NUMBER: SYC 1856 of 2009

DATE DELIVERED: 2 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 2 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Linden

SOLICITOR FOR THE RESPONDENT: Mr Dowd

Orders

1. Orders are made in terms of paragraph 1 (as amended) of a document titled "Case Outline of Respondent Father" filed herein as set out hereunder:

   1.     The child B (the child) born … 2007 spend time with the father as follows:

   a.each second weekend from 7.00 pm Thursday to 7.00 pm Sunday commencing 2 June 2011

   b.every second weekend from 7.00 pm Thursday to 7.00 pm Saturday commencing 30 September 2011

   c.that on one of the two weeks referred to in the preceding order the mother at this stage deliver the child at the commencement of the contact to the father’s place of residence and the father be otherwise responsible for the travelling of the child

   d.blank

   e.by consent Order 5 made 7 April 2011 be varied to include that the father's wife, Ms C as a person with whom the child may remain.

2. Orders are by consent made in terms of paragraphs 1 to 3 (as amended) of a document titled "Case Outline of Respondent Father" filed herein as set out hereunder:

   1.     Both parties do all acts and things and sign all documents necessary to obtain a passport for the child and upon the issue of that passport, to jointly instruct York Family Law to hold that passport pending further order of the Court or written agreement between the parties.

   2.     The father have reasonable telephone contact with the child, to include telephone contact every second day during which the child lives with his mother, such contact to take place, as far as practicable, between 5.00 pm and 6.00 pm provided however that should the mother not be available during the period referred to she shall ensure that the child will telephone the father not later than 10.00 am the following morning.

   3.     The child spend time with the father from Friday, 22 July 2011 until Sunday, 31 July 2011, to commence and finish at such times as the parties may agree and in default of agreement, at 7.00 pm on each of those days.  The father shall either personally or though his parents arrange for the collection and delivery of the child from the mother's residence.

1. The Court notes the undertakings of each of the parties that they will not nor will they permit any other person in the presence or the hearing of the child to say anything which is denigratory of the other party nor will they discuss with the child or with any other person within the hearing of the child these proceedings nor will they permit any other person to have such discussion.

2. All affidavits the parties wish to rely upon should be filed and served no later than 15 August 2011.

3. Pursuant to Section 65DA(2) and Section 62B, 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 adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1856  of 2009

Ms Randell

Applicant

And

Mr Reilly

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are proceedings for interim orders in relation to time spent by a child of the parties, the child B, born in 2007 with the father.  The child presently lives with the mother and spends time with the father pursuant to certain consent orders made in this Court on 15 April last.  Those orders provide for the child to spend time with the father every second weekend from 7.00 pm Friday to 7.00 pm Sunday commencing 22 April 2011 and every second week from 9.00 am Friday to 9.00 am Sunday commencing 15 April 2011.  The father seeks primarily a variation of those orders to extend the time spent to commence on Thursday every second weekend from 7.00 pm in respect of one week and from Thursday 7.00 pm in respect of the other week ending on Saturday.

2. The mother opposes the orders sought but says that she would be prepared to consent to an order that the time spent on the first occasion should be extended to Sunday night, with the father to have the responsibility of returning the child to pre-school on the Monday morning.

3. This is a matter where the parties have agreed on a number of orders to be made which already have been made.  The other issues that are in dispute between them and remain are the arrangements for collection of the child at the commencement of time spent with the father and the father, although seeking a larger order, now proposes that only on Thursdays at the commencement of contact, which is a day upon which the mother does not work, the child should be delivered to the father’s residence by the mother.

4. Otherwise, the father sought an order that he have the first option to care for the child in the event that the mother was not available for a period in excess of six hours.  The Court’s general approach to this matter is to say that this has been a matter which has been significant in the conflict between these parents, a conflict which is regrettable and certainly not in the interests of this child.  There needs, however, to be a resolution to the conflict and the Court notes with pleasure that the parties have moved towards a greater degree of agreement and I think for that, each of them has to be commended and encouraged to continue in that way.  Having said that, however, it seems to me that the evidence of Ms D given on the first day of this trial, that there should be some graduation in the extension of the time of the child with the father, is worthy of favourable consideration and I also note that the hearing of this matter has been fixed for September.

5. It is argued by Mr Dowd, on behalf of the father, that the child currently attending pre-school will be attending school full time next year and the occasions upon which the father, who does not work, can extend his bonding with the child will be less in number once the child attends school and, given his particular position and that of the child at the present time, he seeks to take advantage of that in terms of establishing and building his relationship with his son.

6. The principles governing this case as set out in the Family Law Act. In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the primary considerations and the additional considerations set out in the section. I’m required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount.

7. There is no evidence before the Court in relation to family violence in this particular matter.

8. I will be obliged to be guided by section 60B which sets out the objects of the Part of the Act dealing with the child and the principles underlying it.  I’m required to consider the matters set out under section 60CC(4) and 4(A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.  Section 61DA requires that:

   … 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.

9. In this particular case, the parents agree that they should continue to have equal shared parental responsibility for the child.

10. 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the Court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.  Whilst the position is that the parents will have equal shared parental responsibility, the child is a young child, developing in his relationship with his father and no party seeks, at this time, any order for equal time nor would the Court consider it appropriate to make it at this time, on the basis of the untested evidence.

11. Those considerations I’m obliged to take into account under section 60CC are the benefit of the child having a meaningful relationship with both of the child’s parents.  Clearly, this child, as does any child, will benefit from a positive relationship with each of the parents and there is nothing, in my view, which contraindicates that the parents although, perhaps, having different styles are not making a contribution to this child and in accordance with the Act both of them seek to make a contribution to the child developing the child’s maximum potential.

12. There is a need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  There appears to be no evidence in this case that there has been any abuse of the child, any neglect or family violence, nor any physical harm to the child.  There have been concerns expressed about potential dangers, but they have not been borne out by the facts, it appears.  There is some danger to this child, and I regard it as significant, of psychological harm because of the conflict that continues between the parents.  The Courts are informed time and again that conflict between parents over a child whom each of them loves no doubt and who loves each of them can only work to that child’s detriment.  We’re told that not only is the pain short term but the damage can be long term in a child not being able to form intimate relationships with others, in a child having a low esteem and potentially suffering depression.

13. I don’t want to overemphasise that, but it is a significant body of learning which is brought to the Court’s attention on many occasions.  The parents do have to consider very carefully whether a continuation of that conflict is in their child’s interests.  The one gift that each of them can and only they can give this child is an end to that conflict, and I trust that the matters today having been decided by this judgment, the parties will seek a resolution which is a product of something coming from their hearts and minds and the arrangements thus made for their child will be a resolution which puts to the forefront the needs of the child over their own preferences.

14. I haven’t any evidence of significance about the views expressed by this child, other than it seems to me the probability is that the child loves each of the parents and the child is of an age where weight of any significance would be given to those views.  The child appears to have a close relationship with each of the parties and with the respective grandparents and that can only be a good thing.  It’s a fortunate child, indeed, who has so many people being concerned about him or her.  The child seems to have an appropriate relationship with the father’s partner and that is supportive for the father, no doubt, and pleasant for the child and, on the other hand, there seems to be no attempt by the father’s partner to be other than his partner in the relationship with the child and a friend of the child; that also is entirely appropriate.

15. I am obliged to consider the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.  There has been conflict in this case which is terribly disappointing, long lasting and inappropriate and I lay no blame at any particular door for that; both parties no doubt bear some responsibility for it.  What they have to recognise is the destructive nature of that conflict and the need to put their child’s interest first.  I see, however, in the discussions that have been had, whilst there are differences in the degree, a willingness to facilitate and encourage such a relationship between the child and the other parent.  The mother, for example, has made concessions in relation to the provision of telephone contact with the child and has otherwise encouraged an extension, albeit gradually, of the time spent by the child with each of the parents.

16. Is there likely to be an effect of these changes that are proposed by the father in the child’s life?  Yes, there will be a change.  The change that currently is proposed is but a small one and it is proposed by the Court to make it gradually apply.  It will afford the opportunity, which is a positive thing I think, for the child to properly ground his relationship with his father at a time when the time is available to do that, before the child undertakes the busy processes of primary schooling.  I don’t think that there will be an adverse position in relation to the mother.  The child clearly loves the mother, is loved by the mother and supported by the mother.

17. Indeed, in relation to the question of support, it’s quite clear that the mother has borne the heat and burden of the day in relation to the financial support of this child. Having said that, I do note that the father has paid his obligations under the provisions of the Child Support Act. It is regrettable that they cannot be more, but they are what the law provides for. Nevertheless, it is noted by the Court that the mother’s support to the child has been significant and continuing.

18. Is there a practical difficulty or expense in this child spending time with and communicating with each parent?  Well, there is some difficulty because of the differential places of living of each of the parents.  The father has indicated that he will bear the major burden of such travel as is necessary.  Both parties do live within reasonable distance of each other, but the mother points out that she is working to earn income inter alia to support the child and that puts some premium on her time.  She does indicate that she is available on Thursday mornings and the father seeks some assistance from her in relation to Thursday mornings.

19. There is in my view no difficulty or expense which cannot be overcome which will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.  It seems to me, because the parties concede it to be so, that both the parents and the child’s grandparents are able to provide for the needs of the child, including his emotional and intellectual needs, and that’s evident by the consent of the parties to a provision that the child spend time with the father and the fact that the child living with the mother is not in dispute.

20. I am obliged to take into account the maturity, sex, lifestyle and background of the child, including any particular culture or traditions of the child, and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.  This child is male; the child is young;  there is no evidence of any particular culture or traditions which the child pursues other than the usual Australian ones.  There is no evidence that the child is an Aboriginal child or a Torres Strait Islander child.

21. I’m obliged to take into account the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents.  Obviously, as I have indicated earlier, the mother has borne the major proportion of the cost of the support of this child and, in that, she has demonstrated her ability to live up to the responsibilities of parenthood in that regard.

22. The father, for his part, has done what he is obliged to do by law and perhaps the evidence will ultimately show that he cannot do other, but he has complied with his legal obligations.  The father and, indeed, the mother have in my view had the child to the forefront, although differing in what constitutes the best for the child from time to time, and each of them has discharged their responsibilities in a way which is not, in my view, other than appropriate.  There is no family violence involving the child and there is no such order.  It’s preferable for me to make an order which leads to the least likelihood of the institution of further proceedings.  This matter is listed for a hearing in September which is going to be a significant date.  It’s not known at this stage how long it will take for a judgment to deliver, assuming the hearing does finish in September on the days allocated.

23. But it seems to me I should make orders which apply till September and orders which thereafter change those orders.  The reason for that is to provide the gradation necessary and described by Ms D and which, I think, is appropriate because of the age of this child and the fact that there are significant changes involved.  I’m obliged to take into account those matters referred to in section 60CC(4) and (4A) and I have already touched on a number of those matters which fall for consideration.  It seems to me that the father has particularly taken advantage of the opportunities to be involved in decision-making with the child and to be with the child, and the mother, although there have been difficulties in communication regrettably, has involved the father in discussions including matters about the health of the child.

24. Although the parties have come to different views on some of those matters, at least the discussion has been taking place and one doesn’t expect people to always agree.  Balancing the matters set out in section 60CC and the evidence referred to and which I read in these proceedings, I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.  Section 61DA is a matter which I had been required to take into account and it’s not applicable in these particular circumstances.  There is no reason for presumption not to apply and neither parent seeks that.

25. I am required to consider making an order for equal shared time for the child and, as I have indicated earlier, I do not intend to do so at this time.  It is not an age appropriate order and that does not mean that, ultimately, such an order may not be made, but I will make an order which, in my view, provides for the father substantial and significant time.  I note that the parties have entered into undertakings which gives me some satisfaction to know that they are promising for the future that the child will not be the subject of any apparent conflict between them and will not be reminded of these proceedings necessarily.

ORDERS DELIVERED

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 2 June 2011.

Associate:

Date:  30 August 2011