RATTRAY & SANTINO
[2018] FCCA 2904
•4 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RATTRAY & SANTINO | [2018] FCCA 2904 |
| Catchwords: FAMILY LAW – Interim parenting – young breast-fed child – moderate to high parental conflict. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS RATTRAY |
| Respondent: | MS SANTINO |
| File Number: | WOC 581 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 28 September 2018 |
| Date of Last Submission: | 28 September 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 4 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Doosey |
| Solicitors for the Applicant: | Sward Law |
| Solicitors for the Respondent: | Legal Aid NSW Sydney Central |
ORDERS
The Applicant and the Respondent have equal shared parental responsibility for the Child [X] born 2016 (‘the Child’).
The Child live with the Respondent Mother.
The Child spend time with the Applicant Mother as follows:
(a)Stage 1, commencing Tuesday 9 October 2018 until 31 March 2019;
(i)Each Tuesday from 9:00am to 4:00pm; and
(ii)Each Friday from 9:00am to 4:00pm; and
(iii)Each alternate Saturday from 9:00am to 6:00pm.
(b)Stage 2, commencing 1 April 2019 and pending further Order;
(i)Each Tuesday from 9:00am until 4:00pm; and
(ii)Commencing on Friday 5 April 2019, from 9:00am until 4:00pm and continuing each alternate week thereafter; and
(iii)Commencing on Friday 12 April 2019, from 9:00am until Saturday 4:00pm and continuing each alternate week thereafter and
(c)At such other times as agreed between the parties.
The Applicant Mother shall provide to the Respondent Mother the address of any residence or locations that she is spending time with the Child.
Time between the Child and the Applicant Mother is to be suspended if the Child is unwell and the Respondent Mother shall provide the Applicant Mother with a medical certificate for the Child should this occur.
All changeovers shall occur at a location agreed in writing and failing agreement at the Respondent Mother’s residence in Sydney.
For the purposes of communication between the parties, they shall:
(a)Communicate by text message for matters of an urgent nature or regarding details of the Child’s day; and otherwise.
(b)Communication by email about all other day to day matters including arrangements for spending time with the Child.
Both parties be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child or permitting any other person to do so.
THE COURT FURTHER ORDERS THAT:
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child [X] born 2016 and the Legal Aid Commission of New South Wales is requested to provide such representation.
The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.
Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings.
Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.
The matter be stood over to the Mention on 31 July 2019 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Rattray & Santino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 581 of 2018
| MS RATTRAY |
Applicant
And
| MS SANTINO |
Respondent
ORAL REASONS FOR JUDGMENT
This case is about a young Child, [X], who is 2 and a half years old; she was born on 2016. The Applicant Mother, Ms Rattray, is 36, and she lives in Town A, in the Region 1 region of New South Wales. The Respondent Mother, Ms Santino, is 36, and lives in Suburb M, a suburb in Sydney.
The parents were in a de facto relationship between, it would seem, mid-2008 and mid-2017. The impression formed is that the parents’ relationship started to come under strain after [X]’s birth. When reading the Affidavits, it seems that increasing distance occurred in the relationship; communication issues and disagreements started to increase.
After [X] was born, but before the date of separation, the Applicant Mother was probably involved in her life as much as she could, given that she was working. The Applicant Mother probably felt that she was increasingly excluded from a more active role in parenting their baby. On separation, the Respondent Mother moved out of the home with their baby, and returned to Suburb M. They went to mediation about post-separation parenting arrangements.
What has been reasonably clear is that the Applicant’s time with [X], between 10 June 2017 and 9 June 2018, took place on a frequent basis, sometimes several times per week, but never overnight. The Respondent Mother asserts that the Applicant Mother was frequently late or cancelled. The Respondent Mother also asserts that these visits were unsettling for [X].
The matter came before me for Interim Hearing on 28 September 2018. The matter has been set down for Final Hearing on 22 and 23 August next year, and a Family Report has been ordered. The Court must make a decision about the arrangements for [X] to spend time with the Applicant Mother between now and those dates.
In her case outline document, filed 21 September 2018, the Applicant Mother sought a number of orders [which are contained in the First Schedule to these Reasons for Judgment.] In substance, what she proposed was time on alternating weekends, from 9:00am Friday to 9:00am Monday, and then on Thursdays overnight to Fridays, and then on special days.
Whilst that remained her proposal at the Interim Hearing I must say it was the Court’s impression from the way in which her case was actually presented by her Counsel, Ms Doosey, that the Applicant Mother just wanted to progress her time with [X] to include overnights, and to have her at her home in Town A.
The Respondent Mother’s proposal was that time with the Applicant Mother should be two by 3 and a half hour visits each week, and one by 9 and a half hour visit each week, in Sydney, with one 12 hour visit in Town A every third week. [The proposed orders are contained in the Second Schedule to these Reasons for Judgment.]
At the Interim Hearing, the material before the Court consisted of the following:
In the Applicant Mother’s case she relied on the following documents:
a)Initiating Application of Ms Rattray filed 5 March 2018;
b)Affidavit of Ms Rattray filed 14 September 2018; and
c)Affidavit of Ms Rattray filed 18 June 2018.
In the Respondent Mother’s case she relied on the following documents:
a)Response to an Initiating Application of Ms Santino filed 20 August 2018; and
b)Affidavit of Ms Santino filed 20 August 2018.
In addition, the Child Dispute Conference Memorandum, of 29 August 2018, was before the Court.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child'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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
There are a number of agreed or uncontested facts, and indeed Ms Fordham’s case outline, at page 5, sets these out quite clearly. Ms Doosey conceded these at Hearing. So it is agreed that:
a)[X] has lived in Sydney with the Respondent Mother since separation;
b)She has not spent overnight time with the Applicant Mother since then;
c)She has never spent a night away from the Respondent;
d)[X] is presently being breastfed by the Respondent;
e)The parties live a distance of about 2 hours’ drive from each other; and
f)[X] has been spending time with the applicant for two short visits and one extended visit each week, purportedly in accordance with an agreement reached at mediation in August 2017.
There are a number of other matters that can be acknowledged and dealt with up front. The Applicant Mother seeks an order for equal shared parental responsibility as a final order, as does the Respondent Mother. The Applicant Mother seeks interim joint parental responsibility, but the Respondent Mother seeks no interim orders in relation to parental responsibility. Neither party seeks an order for sole parental responsibility.
The Court is prepared to apply the presumption of equal shared parental responsibility, and indeed no submission was made to the contrary, and it would be difficult to make a contrary submission on the evidence.
Whilst each parent, unfortunately, makes allegations against the other about the other’s past conduct or behaviour or health issues, what is significant from the Court’s perspective is that the orders they propose are really quite inconsistent with the allegations they make. Thus, for example, the Respondent Mother raises issues about the Applicant Mother’s physical and mental health; but, other than submitting that the Court should proceed cautiously, on the basis of what is really uncorroborated and unsubstantiated allegations, the Respondent Mother seeks no orders consistent with holding such concerns; and indeed there is no material before the Court that would in any way contraindicate the application of the statutory presumption. And the same observation could be made about the issues raised by the Applicant Mother.
Now, this means that the Court must consider equal time, or substantial and significant time, provided the same is reasonably practicable and in [X]’s best interests. Equal time has not been sought; and that is quite appropriate. So, really, the focus of this exercise, in a legal sense, is for the Court to consider whether substantial and significant time is reasonably practical and in [X]’s best interests.
It is helpful to consider the evidence from the perspective of section 60CC of the Act. The Court is satisfied that there is a benefit to [X] of having a meaningful relationship with both of her mothers. There is a curious difference between the proposals in this regard.
The Applicant Mother seems to base her claim, at least in part, on the basis that without more time, the prospects of a meaningful relationship are rendered more difficult for her. Implicit in her case is the premise that without more time, and specifically overnight time, the quality of her relationship with [X] cannot become more meaningful.
Now this, the Court observes, is conventional wisdom, in the sense of being consistent with the Court’s general experience in children’s cases of [X]’s age. However, the general must always be subsumed to the specific.
The Respondent Mother’s case is quite intriguing in this regard. The benefit of [X] having a meaningful relationship with her mother is acknowledged, but the implication is that it can be maintained with no quantitative enhancement of her time with the Applicant Mother.
That [X] will move through developmental stages seems not in dispute. That [X] will grow up is a matter in respect of which judicial notice will be taken. The Respondent Mother’s case does not seem to contemplate any commensurate extension of [X]’s time with the Applicant Mother; nowhere in her written case does the Respondent Mother seek to countenance a progression in [X]’s time with the Applicant Mother. It is almost as if time must be suspended or frozen in this regard.
It was only in the Respondent Mother’s Solicitor’s oral submissions that she conceded – and this was only when the Court raised the issue – that there should be no overnight time for 18 months at least. The significance of the 18 months was never explained. There was reference to breastfeeding, distance, communication issues, the absence of overnights; but nothing that explains how any of those matters, relevant as they are, explain or underpin the time period ‘18 months at least’. The Court is left wondering how, on the Respondent Mother’s case, there can be a meaningful relationship between [X] and the Applicant Mother in a prospective sense, if their relationship is compulsorily frozen in time, notwithstanding that [X] will grow up – quite quickly, one would have thought – during that period.
The Court does not accept that there is any need to protect [X] from the risks of harm referred to in section 60CC(2)(b). As previously observed, the concerns that each mother expresses about the other are simply not reflected in the orders they actually seek.
There is, regrettably for [X], an emotional intensity to this parental dispute that seems quite disproportionate to the issues. The litigation process may well have exacerbated the situation of an already emotional separation. This might explain some of the allegations that each parent makes against the other, but it does not amount to a risk of harm for [X].
The Court does not accept that there are any views that [X] has expressed on which it would place any weight.
The Court accepts that the Respondent Mother has been the primary carer for [X] since the date of separation. There are clearly other adults also involved in [X]’s care when with the Respondent Mother. The Respondent Mother seems to acknowledge the importance of [X]’s relationship with the Applicant Mother and her family; and that really is not the issue. The Court must decide whether either proposal really addresses the need to maintain these important relationships.
As observed above, the Respondent Mother’s proposal is frozen in time, seemingly incapable of evolution. The Respondent Mother’s proposal thus pays lip service to this consideration.
The Court must consider section 60CC(3)(c). The Court cannot make findings as to whether, and if so how often, the Applicant Mother was late for or missed her time with [X]. What it can confidently say is that even if it is as frequent as the Respondent Mother asserts, it would make little difference from the Court’s perspective, given the rest of the Applicant Mother’s record of attendance, which is clearly consistent.
Section 60CC(3)(ca) is not determinative in this case.
Section 60CC(3)(d), which deals with the likely effect of changes on the child, is an important consideration in this case. The Applicant Mother’s proposal is, with respect to her and those who have advised her, ill-considered, and manifested a significant lack of insight on her part. The Applicant Mother proposes moving from a situation of never having had an overnight to 4 nights each fortnight, including a 3 night block. It means for [X], who has never spent an overnight away from the Respondent Mother, suddenly being away for 3 nights in a row. It ignores the breastfeeding. It is, with great respect, an absurd proposal. The Applicant Mother should have abandoned this idea long before it got to the Interim Hearing. It was a proposal totally insensitive to [X]’s needs for stability and continuity with the person who is, for the time being, her primary carer.
But the Respondent Mother’s proposal is equally problematic, and denying the possibility of a change for at least 18 months. The uncontested facts have already been noted. But just because [X] has never spent a night away from the Respondent Mother, that does not mean she never will, and it does not mean she will not cope with that change. Just because [X] is breastfed, it does not mean she will always be breastfed, and it does not mean she will not cope with weaning in the fullness of time. Just because [X] has a routine in her Respondent Mother’s home, it does not mean that she cannot have a similar routine in the Applicant Mother’s home.
Just like [X]’s routine will develop as she grows older, so too her routine will tolerate changes if circumstances mandate. The real challenge is how such changes might be facilitated.
The Respondent Mother gives evidence of the unsettling that [X] experiences following extended visits. This evidence cannot be challenged at an Interim Hearing, but it is interesting to note the very appropriate fashion in which Ms Fordham, the Respondent Mother’s solicitor, framed her written submission about this:
Thus, there is some evidence that the child may have a negative reaction to spending significant periods of time, including overnight time, away from the Respondent.
“Some evidence”, “may have a negative reaction”. Whilst the Respondent Mother, understandably perhaps, associates these behaviours to [X]’s time with the Applicant Mother, the fact is, we do not know. We do not know, for example, if there are other explanations for this behaviour. Is [X], like so many other children, so attuned to her mother’s feelings that she detects the mother’s apprehension about time with the other mother? The conflict between these parents is palpable.
Whilst the Applicant Mother’s proposal is simply out of the question, as being too much change too quickly, the Respondent Mother’s case does not explain why there should be absolutely no change at all.
Section 60CC(3)(e) deals with issues of practical difficulty and expense. The submissions made by each parent are duly noted. In many respects, these mothers have managed the issues of distance reasonably well. Change seems inevitable, as the Applicant Mother’s base, if I can call it that, in Sydney may well need to change. But there is nothing insurmountable here.
The Court is required to consider section 60CC(3)(f), issues of parental capacity; and then, (3)(i), issues of parental attitudes. As is not unusual in the Court’s experience, in cases of moderate to high conflict, there is potentially much that can be said about both parents, having regard to these considerations.
It is best to be minimalist for the time being. Their diametrically opposite proposals about [X]’s time with the Applicant might suggest a lack of child focus, and might suggest a focus on their own needs instead. These are new parents. There may be insecurities and uncertainties at play, interacting with mutual suspicion about each other’s motives. None of this is helpful. The focus must be on [X]’s needs, and not on that of her mothers. The policy of the Family Law Act in this regard is quite clear.
The Court must consider substantial and significant time. It is satisfied that this is reasonably practicable. But the Applicant Mother’s proposal is plainly not in the best interests of [X]. Indeed, the Court has reservations as to whether it is even possible to obtain substantial and significant time, as defined, with [X] given her age and developmental stage. Having regard to that, what should the orders be that are in [X]’s best interests?
The Final Hearing is in August next year; a Report will be available before then. When all the evidence before the Court and the submissions made are considered, the Court believes that it is in [X]’s best interests to introduce limited overnight time with the Applicant Mother, but over a period of time. The focus turns to the details of the appropriate order.
So the order will look like this;
Firstly, I am going to make an order for equal shared parental responsibility. My reasons for that have been given.
I am going to order that [X] lives with the Respondent Mother. That appears not to be in contention. There will then be two stages. Each stage will be subject to any other agreement that the parents reach.
Stage 1 will be from now through to the end of March 2019. [X] is to spend time with the Applicant Mother:
a)each Tuesday, from 9:00am to 4:00pm;
b)each Friday, from 9:00am to 4:00pm; and
c)each alternate Saturday, from 9:00am to 6:00pm.
Stage 2 will commence from 1 April 2019, pending further order. And, again, I emphasise that this is unless the parents otherwise agree. [X] will spend time with the applicant mother:
a)each Tuesday, from 9:00am to 4:00pm; and
b)each alternate Friday, from 9:00am to 4:00pm; and then
c)each other alternate Friday, from 9:00am to Saturday 4:00pm.
The Court notes the evidence from the Applicant Mother about her flexible work arrangements, meaning that this proposal would be something that she can accommodate. The Court observes that these Orders regularise [X]’s time with the Applicant Mother, but in a manner that is not too inconsistent with the existing regime. Overnight time is introduced each alternate weekend, in 6 months’ time.
This gives the Respondent Mother plenty of time to wean [X] off the breast, if that is what she desires, or to make alternate arrangements. In this regard, I note the Respondent Mother’s own evidence, which refers to the cessation of breastfeeding when [X] turns 2.
There will be no condition, as the Respondent Mother prescribed, as to where the Applicant Mother is to spend time with [X]. She is to use her common-sense and to act in a child-focused manner, remembering at all times, as the Respondent Mother should likewise remember, that the forensic scrutiny of litigation is a burden that they will carry until the Final Hearing or settlement.
There will be no requirement, as the Respondent Mother sought to prescribe, that the Applicant Mother feed and bathe [X]. There is no need to tell the Applicant Mother to do that which should be plainly obvious to her.
The orders proposed by the Respondent Mother in her case outline, at (5), (6), (7), and (9), are appropriate and child-focused, and will be made.
The Court is concerned about the level of conflict between these parents, and will, of its own motion, make Orders that:
a)The parents:
i)do not discuss these proceedings with or in the presence of [X], or allow anybody else to do so; and
ii)will not denigrate each other in the presence of [X], or allow anybody else to do so.
The Respondent Mother seeks a change of venue to Sydney. But, I suspect, given the allocation of a Final Hearing date and the making of a Family Report Order, the Court will assume that this is not pressed. It is, with respect, highly unlikely that my colleagues in the Lionel Bowen Building could offer such dates.
The Court has also decided, of its own motion, to appoint an Independent Children’s Lawyer in this case. I have given this matter quite some consideration. As I have hinted at earlier in these Reasons for Judgment, there is an intensity to the conflict between these parents that is at times disconcerting; and in the circumstances, I think it is in [X]’s best interests that she be independently represented. Accordingly, an Order will be made to that effect.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 25 October 2018
Schedule One
Minute of Orders Sought by the Applicant Mother
That Ms Santino be ordered to immediately return to reside in the Region 1 area and reside not more than 20 kilometres away from the parties’ relationship residence in Town B.
That the parties have joint parental responsibility and each parent will be responsible for the day to day decisions concerning the care of the child namely [X] born 2016 when the child is living with them or spending time with them.
That the child live with the Respondent Mother Ms Santino.
That the child spend time with the Applicant Mother Ms Rattray as follows:
a.Each alternate weekend from 9:00am Friday until 9:00am Monday.
b.Each week from 9:00am Thursday until 900am Friday.
c.In even numbered years from 12noon Christmas Eve until 12noon Christmas Day and in odd numbered years from 12noon Christmas day until 12noon Boxing Day.
d.In even numbered years from 12noon New Years’ Eve until 12noon New Years’ Day.
That if Ms Santino is not ordered to return to the Region 1 area then changeover is to take place by Ms Santino or her agent delivering the child to Ms Rattray or her agent at the commencement of time and Ms Rattray or her agent deliver the child to Ms Santino or her agent at the conclusion of her time.
Schedule Two
ORDERS SOUGHT BY THE RESPONDENT
The Child, [X] (“the Child”) born 2016, shall live with the Respondent Mother, Ms Santino.
The Child shall spend time with the Applicant Mother, Ms Rattray, as agreed and failing agreement as follows:
Week 1
2.1On Monday and Friday from either 8.30am to 12pm or 2.30pm to 6pm (“short visits”) in Sydney.
2.2On Saturday from 8:30am to 6pm (“extended visit”) only if the Applicant Mother has access to a residence in Sydney for the Child to sleep and bathe and if no such location is available, a short visit shall take place.
Week 2
2.3On Monday and Thursday for a short visit.
2.4On Friday for an extended visit only if the Applicant Mother has access to a residence in Sydney for the Child to sleep and bathe and if no such location is available, a short visit shall take place.
2.5No more than once every three weeks, the visits outlined in either Order 2.2 or 2.4 may be replaced with an extended visit to Town A, with the Child to be returned to Sydney by 9pm on the relevant Saturday or Friday.
The Applicant Mother shall feed the Child lunch during any morning short visits and dinner during any afternoon short visits.
The Applicant Mother shall feed the Child dinner and bath her before changeover following extended visits.
The Applicant Mother shall provide to the Respondent Mother the address of any residences or locations that she is spending time with the Child.
Time between the Child and the Applicant Mother is to be suspended if the Child is unwell and the Respondent Mother shall provide the Applicant Mother with a medical certificate for the Child should this occur.
All changeovers shall occur at a location agreed in writing and failing agreement at the Respondent Mother’s residence in Sydney.
The Applicant Mother be restrained from removing the child from Sydney Metropolitan area unless expressly agreed by both parties in writing.
That for the purposes of communication between the parties, they shall:
9.1Communicate by text message for matters of an urgent nature or regarding details of the Child’s day; and otherwise
9.2Communicate by email about all other day to day matters including arrangements for spending time with the Child.
10. That the proceedings be transferred to the Sydney Registry of the Federal Circuit Court.
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Natural Justice
-
Procedural Fairness
-
Remedies
0