Ratcliffe and Fenwick

[2016] FCCA 2547

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATCLIFFE & FENWICK [2016] FCCA 2547

Catchwords:
FAMILY LAW − Whether child should live with the mother or father once school commences – where child lives equal time with each parent − where distance between parents homes makes continuation of equal time impractical.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA

Applicant: MS RATCLIFFE

Respondent: MR FENWICK

File Number: DGC 971 of 2014

Judgment of: Judge Phipps

Hearing dates: 18 & 19 August 2016

Date of Last Submission: 19 August 2016

Delivered at: Dandenong

Delivered on: 4 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Taghdir

Solicitors for the Applicant: Women’s Legal Service Victoria

The Respondent: Appearing on his own behalf

Counsel for the Independent Children’s Lawyer: Ms Glaister

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. That all previous Parenting Orders be discharged.

2. That the parents have equal shared parental responsibility for the child X born (omitted) 2012.

3. Until the child commences school, the child spend time with the father and mother as follows:

   (a)With the mother from Saturday 6.30pm until Wednesday 6.30pm;

   (b)With the father from Wednesday 6.30pm until Sunday 6.30pm;

   (c)With the mother from Sunday 6.30pm until Wednesday 6.30pm;

   (d)With the father from Wednesday 6.30pm until Saturday 6.30pm;

   (e)From 5.00pm Saturday preceding Father’s Day until Sunday 6.30pm with the mother’s time during this period suspended;

   (f)With the mother from 10.00am Christmas Eve 2016 until 9.00am Boxing Day 2016 with the father’s time during this period suspended;

   (g)With the father from 9.00am Boxing Day 2016, until 6.30pm on 1 January 2017 with the mother’s time during this period suspended; and

   (h)All other times as agreed in writing between the parents.

(3A)For the purpose of time, changeover occur outside Flinders Street Railway Station next to the Victoria Police Station Box.

1. When the child commences primary school as follows:

   (a)The child live with the father;

   (b)The child spend time and communicate with the mother as follows:

   i.Each alternate weekend from 6.30pm Friday until 6.30pm Sunday or Monday if Monday is a non-school day;

   ii.In the event the child has a non school day on a Friday, the child shall spend that weekend in the mothers care and if necessary the parents shall swap weekends to enable this to occur;

   iii.On Mother’s Day from 6.30pm Saturday preceding Mother’s Day until 6.30pm on Mother’s Day with the father’s time during this period suspended;

   iv.On Father’s Day from 6.30pm Saturday preceding father’s Day until 6.30pm on Father’s Day with the mother’s time during this period suspended;

   v.For ten days in the school term holidays as agreed between the parents and in default of agreement, the first 10 days of the school term holidays;

   vi.During the long summer vacation the child shall spend 2 weeks with the father at times to be agreed and in default of agreement for the first half in 2016 and in each alternate year thereafter and for the second half in 2017 and in each alternate year thereafter and the remainder of the holiday’s in the mothers care;

   vii.On the child’s and mother’s birthday as agreed between the parties and in default of agreement, on a non-school day, from 9.00am until 6.30pm with the fathers’ time during this period suspended;

   viii.On the father’s birthday as agreed between the parties and in default of agreement, on a non-school day, from 9.00am until 6.30pm with the mother’s time during this period suspended;

   ix.During Easter at times as agreed between the parties and in default of agreement, from 5.00pm Easter Saturday until 2.00pm Easter Sunday in 2016 and each alternate year thereafter;

   x.From 2.00pm Easter Sunday until 9.00am Monday in 2017 and each alternate year thereafter;

   xi.With the father from 10.00am Christmas Eve 2017 until 9.00am Boxing Day 2017 and in each alternate year thereafter with the mothers time suspended during this period;

   xii.With the mother from 9.00am Boxing Day 2017 until 6.30pm on 1 January 2018 and in each alternate year thereafter and the father’s time shall be suspended during this period;

   xiii.All other times as agreed between the parents in writing.

2. From the commencement of school 2017 changeover of times for the child shall occur at (omitted) Railway Station unless otherwise agreed in writing.

3. The parents are to notify the other as soon as practicable of any serious illness or medical emergency affecting the child and are to authorise all medical and health care professionals treating the child, to discuss the child’s treatment and care with the other parent.

4. The parents, their servants and agents are restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence of the child or from permitting any other person to do so.

5. The parents shall use a communication book to be passed between the parents at changeover. The parents will write in the communication book all relevant matters pertaining to the health, care, welfare and development of the child.

6. The parents shall keep each other advised at all times of their residential address/es and contact telephone number/s and are to notify each other in writing of any change of their address and/or contact telephone number within 24 hours of such change.

7. The father shall authorise the child’s kindergarten to provide copies of reports, correspondence and newsletters to the mother at her cost.

8. The mother is permitted to attend all school activities, functions, concerts, events, sporting activities, parent teacher interviews and other school activities to which parents are usually invited to attend.

9. That neither parent be permitted to relocate the child’s residence outside of Victoria without the written consent of the other party. That neither parent be permitted to travel with the child outside of the Commonwealth of Australia without the written consent of the other party and neither parent will unreasonably withhold their consent.

10. That the parents provide to each other in writing, the name and contact details of the child’s current treating medical and/or other professional/s within 14 days of the Orders and keep the other informed of any changes to these details.

11. That the parents inform the other of any medication prescribe for the child from time-to-time and provide the medication and appropriate instructions for its administration to the other party at the time of changeover.

12. The father is intending to travel to (country omitted) from 26 December 2016 to 8 January 2017 and upon the father providing to the mother;

    (a)An itinerary including where the child will be staying;

    (b)A contact email address in (country omitted);

    (c)Details of flights;

    the mother will consent to the travel and provide the father with the child’s passport in a timely manner and the father shall return the child’s passport to the mother at the end of the trip.

13. The parents shall where practicable effect changeover and in the event they use an agent for changeover that person shall be known to the other parent and the child.

14. That the appointment of the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 971 OF 2014

MS RATCLIFFE

Applicant

And

MR FENWICK

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother and father have one child X born (omitted) 2012.  She spends equal time with each parent.  She will commence school next year.  Once that happens, because of the distance between the parent’s homes the equal time arrangement cannot continue.  Each parent proposes the child live with that parent and spend time with the other parent.

2. The proposals of each for time with the other are largely the same.  Each proposes that the child spend time with the other parent alternate weekends from Friday night to Sunday night extended when there is a non-school day.  The mother proposes that school holidays be shared equally.  The father proposes that the child spend 10 days in school term holidays with the mother and four weeks during the long summer holidays, expressed as two weeks with him and the balance with the mother.  Summer school holiday time with the mother may vary slightly from year to year.

3. The Independent Children’s Lawyer supports the father’s proposal.  The father is self-represented.  The father’s proposal is represented by support for the proposed minute of final orders put forward by the Independent Children’s Lawyer.

4. Each party proposes that there be an order for equal shared parental responsibility. This means that s.65DAA of the Family Law Act 1975 (Cth) requires the court to consider whether equal time is in the best interests of the child and reasonably practicable or if not equal time substantial and significant time.

5. The parties agree that if the residences were close enough together continuation of equal time is in the best interests of the child. The distance between their homes means that it is not reasonably practicable and the only practicable alternatives are those put by each party. Further consideration of the requirements of s.65DAA is not needed.

6. Section 60CA of the Family Law Act 1975 (Cth) provides that the best interests of the child is the paramount consideration in determining parenting orders. The best interest considerations are contained in s.60CC. The objects and principles of the children’s provisions are in s.60B.

7. The principle issue is: Which parent has the more secure relationship with the child?

Background

1. Both parents are from (country omitted).  The mother was born on (omitted) 1993 and is aged 23.  The father was born on (omitted) 1990 and is aged 36.  The parties met in 2009 and married on (omitted) 2010.  The mother was 16, about to turn 17, and so needed permission from a magistrate to marry.  Permission was given.

2. Each party acknowledges the other is a good parent, capable of caring for the child.  Each party says that if they lived close enough equal time should continue.  Ms S, the family consultant, agrees.  The mother lives in (omitted) and the father in (omitted).  The mother’s partner works at (employer omitted) and has lived in the (omitted) area for many years.  The father’s employment is in (omitted) and he has purchased a house and land package in the area.

3. The parties separated on 29 March 2014 in circumstances where each alleges family violence on the part of the other.  Issues of family violence received no attention at the hearing.  Neither party nor the Independent Children’s Lawyer places any significance on them.  Apart from this given there was no cross examination and no submissions no findings can be made on any of the disputed allegations contained in the affidavits.

4. At separation the child was initially in the care of the father but then went into the care of the mother on 6 April 2014.  The mother commenced these proceedings on 3 April 2014 and an order on 12 May 2014 provided for the child to spend time with the father on alternate Wednesdays from 3.30pm to 6.30pm and alternate weekends from 3.30pm Saturday until 3.30pm Sunday.  An order on 9 July 2014 provided for the child to live with the mother from 5.00pm Sunday till 4.00pm Thursday each week and with the father from 4.00pm Thursday until 5.00pm Sunday each week.  An order on 5 September 2014 provided for the child to spend equal time with each parent, on a rotating two week cycle of 4 nights and 3 nights.

5. Ms S prepared three reports dated 19 August 2014, 8 November 2015 and 22 June 2016.

6. In her interview with Ms S for the first report, the mother told Ms S that at first she thought the child should live with the father.  He earned more money.  She lacked confidence in her ability to provide equivalently for the child.  The mother told Ms S she had changed her mind and now proposed for the child to live with her.  At the time of the interview she was living with the maternal grandmother, the grandmother’s partner and the grandmother’s 18 month old child.

7. The father proposed to Ms S that the child live with him.  He worked full time but the paternal grandmother would care for the child when he worked.

8. Ms S determined that the child had formed solid relationships with both parents.  It seemed the child was more closely attached to her father.  She was observed to have a close and appropriate relationship with her mother.  Ms S said it was in the child’s best interests to implement a parenting regime that supported both parts being actively involved in the child’s care and she said that given the child’s young age a split week arrangement was preferable.  She proposed a review in around 12 months.

9. At the time of interviews for the second report, 28 October 2015, the mother had moved into independent accommodation in (omitted).  She had recently re-partnered but did not live with her partner.  She was not working.  The father was living in (omitted) and the paternal grandmother, who had left Australia after the expiry of her visa, had recently returned with a three year visitor’s visa.  She was living with the father and assisting with the care of the child.  The father had not re-partnered.  He was working full-time and studying part time for a (qualifications omitted) at (omitted).

10. In the interview with Ms S the mother proposed that the child live primarily with her once school commenced.  She was ambivalent about arrangements prior to that.  She had a number of criticisms of the father about relatively minor changes in arrangements.  The father supported the current arrangement continuing.

11. Ms S says in the second report that the child was observed to enjoy close and connected relationships with both parents.  The parents were communicating and cooperative and interaction with the child was child focused.  The child enjoyed time with both parents.

12. Ms S recommended continuation of the equal time arrangement.  If the parties continued living a distance apart a decision would have to be made in 2017 when the child commenced school.  Ms S said it was difficult to say with confidence who the child should live with in 2017.  The father impressed Ms S as the more stable parent.  She said the child’s relationship with her mother had improved and the mother continues to present as loving and well meaning.  Ms S said that she presented as immature without a clear future plan.

The best interest considerations

1. The first of the primary best interest considerations is the benefit to the child of a meaningful relationship with each parent.  Both parents accept that the other is a good parent and that the child has a close and loving relationship with that parent.  Ms S agrees.  The relationship with one parent will be affected once the child commences school because the amount of time with that parent would be reduced.  Ms S’s assessment is that the relationship will continue.  In particular, Ms S’s assessment is that the child has a secure relationship with the mother and that relationship will continue if less time is spent.

2. There is no evidence relevant to the second of the primary considerations, the protection of the child.  Each parent obtained a Family Violence Intervention Order against the other parent.  They expired on 10 August 2015.  Any family violence is now in the past and the parties now have a relationship which is respectful enough to enable them to share the care of the child.

3. The first of the additional considerations is the views of the child bearing in mind the child’s age and stage of development.  The child states a preference for the father and the mother acknowledges this.  The child is four and so this preference has to be considered in that light.

4. The second of the additional considerations is the child’s relationship with each parent and other people including grandparents.  Ms S’s evidence shows a strong relationship with each parent but stronger with the father.  She has a relationship with the paternal grandmother who lives with the father and cares for the child while the father is working and studying.

5. The child’s relationship with the mother is strong.  She is developing a relationship with the mother’s partner and she will soon have a baby sibling.  She will develop a relationship with the baby wherever she is living.  Ms S considers that the arrival of the baby may reduce the mother’s attention to the child.  Ms S notes as well that the mother has been living with her partner for only a short time and has become pregnant.  What effect this might have on her relationship with her current partner is another uncertainty.

6. The next additional consideration is the extent to which each of the parents has participated in making decisions about major long-term issues.  The issue of schooling has presented some difficulties in communication.  Each has pursued school enrolment.  There was some notification about steps by each to the other but no participation by either parent in the enrolment processes pursued by the other.

7. The next consideration is the effect of any change in the child’s circumstances, including the likely effect on the child from any separation from either parent.  Ms S’s evidence shows a close attachment with each parent and some potential effects on the relationship when the child is spending less time with one parent than the other.  Ms S’s view is that it is potentially more detrimental to the child if her time with the father is significantly reduced in comparison to reducing the time with the mother.

8. Ms S notes that the child does have a secure attachment to her mother and will retain it even if she is spending less time with her.

9. The next consideration is the practical difficulty and expense of the child spending time and communicating with a parent and whether that will affect the children’s right to maintain personal relations and direct contact.

10. The mother lives in (omitted) and the father in (omitted).  The mother has a licence but does not drive.  She says that she intends obtaining a motor vehicle in November which will be when her child is born.  At present changeover between the parents occurs at Flinders Street Station.

11. The next consideration is the capacity of each of the child’s parents and other persons to provide for the needs of the child, including emotional and intellectual needs.  The father has the capacity to provide financially for the child and, on Ms S’s evidence, has a better capacity to provide for the child’s emotional needs.  For at least the next two years the parental grandmother is available at the father’s home to care for the child when the father is working and studying.

12. Ms S notes there is a risk following the birth of the mother’s baby that the mother will not be able to give as much attention to the child as she does now.

13. The next consideration is the maturity, sex lifestyle and background of the child and parents.  The mother is 23 and the father 36.  Both were born in (country omitted).  The mother is (religion omitted), the father (religion omitted).

14. The attitude to the child and responsibilities of parenthood is the next consideration.  The parents both love the child, and each cares very well for the child and has the capacity to continue doing so.

15. The next consideration is family violence orders.  There are no current orders.

16. The final consideration is whether it is preferable to make orders least likely to lead to further proceedings.  These orders will be final orders.  Further proceedings are only likely if there is a change of circumstances.

Conclusion

1. The significant consideration is the child’s attachment to each parent.  The child has a stronger and more secure attachment to the father.  Ms S’s firm view is that the child’s attachment to the mother is immature.  It follows from this that the father has a better capacity to provide for the child’s emotional needs.  The child wants to spend more time with the father.  The combination of all the circumstances means that it is in the child’s best interests to live principally with the father.  Once this decision is made other orders are not in dispute.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 4 October 2016