Rousseau and Martin
[2009] FMCAfam 1022
•15 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROUSSEAU & MARTIN | [2009] FMCAfam 1022 |
| FAMILY LAW – Parenting dispute – orders to be made as sought by Independent Children’s Lawyer. |
| Family Law Act 1975, s.60CC |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR ROUSSEAU |
| Respondent: | MS MARTIN |
| File Number: | DGC 3990 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 25 & 26 August 2009 |
| Date of Last Submission: | 26 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 15 October 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Swart |
| Solicitors for the Respondent: | Macgregor Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr McLeod |
| Solicitors for the Independent Children’s Lawyer: | Nickolls Windisch & Associates |
ORDERS
Subject to order 2 below, the child [X] born in 1998 (“the child”) live with the father.
The child spend time and communicate with the mother:
(a)for three out of four weekends from Friday 6.00 pm to Sunday 6.00 pm, such pattern to commence on the first Friday of each school term during school terms;
(b)for 25 days in the long summer vacation at times to be agreed and failing agreement, commencing 12.00 noon on 1 January each year;
(c)for ten days in each term vacation and failing agreement, commencing 12.00 noon on the first Saturday of each school term vacation;
(d)on Christmas and birthdays as agreed and failing agreement, from 3.00 pm Christmas Day 2009 until 6.00 pm Boxing Day 2009 and in each alternate year thereafter and from 3.00 pm on Christmas Eve 2010 until 3.00 pm on Christmas Day 2010 and in each alternate year thereafter and for four hours on the child’s birthday and for four hours on the mother’s birthday, 5 May, if such days are non-school days when the child would not otherwise be with the mother and if such days fall on school days, for four hours on the immediate following weekend if the child is not otherwise with her mother;
(e)by telephone as agreed and that the child be permitted to telephone the mother at such reasonable times that she seeks to do so; and
(f)as otherwise agreed.
For the purpose of changeover:
(a)the mother will collect the child from the father’s residence at the commencement of all time spent with her; and
(b)the father will collect the child at the end of all time spent with the mother from the mother’s residence.
Both the father and the mother are to enrol in and attend a post-separation parenting course of the type offered by Gordancare and each party is to provide to the other within six months of this day a certificate evidencing the completion of such course.
Both parties be restrained by injunction from denigrating the other in the presence or within the hearing of the child or allowing the child to remain in the presence or hearing of any other person doing so.
Each party advise the other of any serious illness or injury suffered by the child as soon as practicable following the onset of the illness or the occurrence of the injury, advise of any medical treatment obtained for the child and, to any extent necessary, authorise the relevant medical practitioners to provide full information to the other parent.
Each party is free to be fully involved in the school life of the child and to receive copies of school reports, correspondence, newsletters and the like and to attend all functions and events to which parents are normally invited.
The mother not permit the child to be in contact with and/or in the presence of Mr G.
The father and the mother each keep the other informed of their residential address and telephone number and any changes within 48 hours of any changes.
Each parent retain parental responsibility for the children.
The order appointing the Independent Children’s Lawyer dated
2 October 2007 be discharged.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rousseau & Martin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 3990 of 2007
| MR ROUSSEAU |
Applicant
And
| MS MARTIN |
Respondent
REASONS FOR JUDGMENT
This case is all about a little girl, [X], born in 1998 and therefore now 11 years old.
[X] has lived with her father, Mr Rousseau, since 2007 and is enrolled in [S] School in [E].
Prior to 2007, [X] lived predominantly with her mother. Since then she has lived during the weeks with her father and although there is some dispute about this, has spent the majority of weekends with her mother. [X] has told the report writer, Dr Harvey, and the Independent Children’s Lawyer, that she is perfectly satisfied with these arrangements and wishes them to continue.
The mother wants [X] to return to living predominantly with her and the father wishes the existing arrangement to continue. The Independent Children’s Lawyer, by and large, supports the father’s position.
In addition to the issues as to who the child lives with, there are subsidiary issues as to changeover, telephone contact and an ancillary issue to do with the mother’s former partner, Mr G.
For the reasons that follow, I have determined that the existing arrangements will, by and large, stay as they are, and I will be making the orders sought by the Independent Children’s Lawyer.
History
The father is 42 years old and the mother is 33 years. They commenced cohabitation in 1994 and separated in 1999. [X], as recorded, was born in 1998.
As noted by Dr Harvey, both parents agreed that after the separation, Mr Rousseau kept up a regular and consistent pattern of having [X] spend time with him. Orders made in 2000 confirmed the pattern of times that [X] spent with her father, and that continued until momentous events in September 2007.
Both of the parents have had their troubles with the law and their conduct has at times been, as the Independent Children’s Lawyer submitted, appalling. Notwithstanding this, however, there is no allegation that Mr Rousseau has ever been violent towards [X], and the same is true of the mother.
In September 2007, Ms Martin was remanded in custody on drug trafficking and drug possession charges. She was in jail for some ten days. The charges have been resolved by court orders made in June 2009. A substantial number of charges were not proceeded with, but Ms Martin still pleaded guilty to three offences, all being serious matters despite her endeavours to minimise their significance.
It should be noted that Ms Martin’s incarceration took place because of amphetamine production on the property at which I understand she was living with her then partner, Mr G. It seems reasonably clear on the material that the child is scared of Mr G. This is important because, although she is no longer in a relationship with him, the mother remains good friends with Mr G whom she had seen shortly before she gave evidence. Indeed, as I understand it, she proposes to go on seeing him and sees nothing wrong with doing so.
Ms Martin asserts that Mr G has elected for trial in the County Court and will be pleading not guilty. That will be a matter for the jurors to determine. All I can say is that the impression I get from the materials is that Mr G is not a person with whom association would seem very desirable.
The father took [X] into his care while the mother was in jail and has looked after her ever since. They have moved a number of times over the years but now appear to be in stable accommodation. Despite criticism advanced by the mother, I am satisfied that Mr Rousseau’s living arrangements are entirely satisfactory for [X]. They live in a large property which is effectively two properties. In the other property lives a lifelong friend of the father who appears to be a perfectly respectable citizen.
Since [X] has been in his care, the father has enrolled her at [S] School in [E] where she is doing well.
The father says that [X] has spent three weekends out of four with the mother over the most recent period of time. The mother put this in issue and sought to prove that there were, in fact, substantial periods of time where the father did not spend weekend time or, in some instances, any time with [X]. While the father may, on occasion, have underestimated the amount of time, particularly at weekends, that [X] spent with him I am satisfied that in the main the arrangements have been as he asserts.
The father uses the weekends to work, which makes common sense, given that his primary role is as a caregiver to [X] during the week.
The father said he got [X] to school on time and in a general way gave her the stability and routine that she needed. I note in particular that the mother has conceded (paragraph 25, affidavit sworn 11 November 2008) that the father’s care of [X] has been beyond criticism. She was not prepared to go quite so far in the witness box, but I find that
Mr Rousseau is a perfectly satisfactory and in all probability an excellent carer for [X] during the week.
There has been recent difficulty, in particular over changeovers.
Mr Rousseau’s evidence was that the mother is in the habit of turning up spectacularly late to changeover arrangements. I note that the mother has also admitted, albeit somewhat grudgingly, that she on occasion was unable to get [X] to school on time when [X] was living with her.Mr Rousseau’s evidence about the unnecessary delay and time spent at changeover was given with considerable conviction and not shaken in cross-examination and I accept it. As I find, the mother is a person whose attention to time and punctuality is, on occasion, erratic. This is of significance in relation to the orders to be made about changeover.
The mother’s home arrangements are likewise perfectly satisfactory for [X]’s benefit, subject only to the issue of Mr G.
It should be noted that the primary driver of the mother’s application became clear during her evidence. At one point she said words to the effect that when she was incarcerated “all my rights as a mother were taken off me.”
It is clear that the mother feels the father has taken undue advantage of her incarceration to, as she sees it, seize [X] from her. She wants [X] back accordingly.
This keenly felt emotion, while understandable, in my view shows a lack of insight into the fact that [X] is doing extremely well at her new school and has said, as I have already indicated, to all and sundry that she is happy with the current arrangements.
Dr Harvey, the report writer, was called and was cross-examined at length by counsel for Ms Martin. His evidence was not swayed in cross-examination and indeed in my view was only confirmed.
Dr Harvey’s central point was that this child was happy with her current living arrangements and that irrespective of any views she might have expressed, it was imperative in her best interests that she remain at the school where she presently is enrolled and that her home arrangements not change.
It is clear that if primary custody were to be given to the mother, the mother would re-enrol the child in yet another school. Dr Harvey was absolutely against such a change and I accept his evidence.
His evidence falls within the sphere of his professional skill and is in any event only a matter of sound common sense.
Consideration of the matters required by the Family Law Act 1975
It is clear from the Act, taken in conjunction with the guidance given by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346, particularly at paragraph [82], that the Court should, having set out the competing proposals of the parties and identified the facts, which I have I think already done to a sufficient degree, move to consider whether or not equal shared parental responsibility is in the best interests of the child.
Here all parties agree that joint parental responsibility is appropriate, and I will order it.
I then move to the question of equal time. No party has sought it, and it will not be ordered.
I then move to the question of substantial and significant time.
The position of the parties in this regard was somewhat more opaque. The debate did not really flow in terms of the definition of substantial and significant time in the legislation. Rather it followed the competing primary positions of the parties. Thus the father wished to retain the current regime and the mother wished the child to return and live predominantly with her, spending time with the father.
The parties approached the matter on the footing that the determination of this primary issue would, in fact, determine the outcome. In the particular and unusual circumstances of this case, I think that was an appropriate way to proceed. Turning to s.60CC of the Act, I note and accept the submissions of counsel for the Independent Children’s Lawyer that:
a)the child is well adjusted;
b)the child has an unusual regime that suits her;
c)she has told this to the report writer twice and also to the Independent Children’s Lawyer;
d)the father gets her to school on time and otherwise looks after her well;
e)the child gets to spend what counsel described as the “fun stuff” with her mother and she thoroughly enjoys this; and
f)communication between the parties is dreadful, but it is nonetheless a credit to both parents that, despite their own vivid interpersonal hostility, they have been able to produce such a well adjusted, bright and happy child.
Turning to the specific matters raised by section 60CC.
Section 60CC(2)
The child plainly has a good relationship with both parents and will benefit from a meaningful relationship with them both.
While both sides have, as counsel for the Independent Children’s Lawyer submitted, behaved appallingly from time to time, there is no suggestion that the child needs to be protected from physical or psychological harm, notwithstanding that there has been family violence in the past. The only caveat to this is Mr G to whom I shall return.
Section 60CC(3)(a)
The child tells both parents that she wishes to live with them and in fact does live with both of them. She is mature for her age.
Section 60CC(3)(b)
This adds nothing in the circumstances described.
Section 60CC(3)(c)
The child has a close and continuing relationship with each parent despite the fact that the parents might be said, on one view, to have made their best efforts to ensure that she does not. Although both parents are good parents in a general way, neither gives the other any appropriate credit.
Section 60CC(3)(d)
Here the critical question is that identified by Dr Harvey. It is plainly likely to be extremely damaging to [X]’s best interests if her primary residence is changed during the week and a change of school follows therefrom.
Section 60CC(3)(e)
In the particular circumstances of this case, while there are undoubtedly a number of practical difficulties and problems whichever set of orders I make, this section has little application.
Section 60CC(3)(f)
Both of the parents can provide for the needs of [X] while she is with them and she is coping well. I accept Dr Harvey’s recommendation that both parents conduct a post-separation parenting course. I note that the mother was prepared to undertake one in any event.
Section 60CC(3)(g)
The only issue stressed here by counsel for the Independent Children’s Lawyer was the mother’s somewhat ambivalent attitude towards crime. In my view, the only order I need to make is to ensure that the child is not brought into the presence of Mr G. Whether he is or is not found guilty of the charges he faces, the child is scared of him and has witnessed violence on his part against the mother. The mother’s incapacity to see that it is inappropriate to have Mr G in the child’s life is one area in which it is impossible to avoid criticism.
Section 60CC(3)(i)
This has already been covered.
Section 60CC(3)(j)
I accept the submission of counsel for the Independent Children’s Lawyer that both parties have been involved in family violence. It is not necessary to traverse in any detail the very unfortunate records that both parents have in this regard. I accept the submission of counsel for the Independent Children’s Lawyer that, notwithstanding family violence, the child is alright, and I accept his submission that it is clear the mother feels a sense of injustice with what has occurred even though the child has progressed well.
Section 60CC(3)(h-k)
None of these sub-sections add anything to what has already been put.
Section 60CC(3)(l)
The orders that I am going to make will, in my view, be least likely to lead to the institution of further proceedings. Once the mother gets over the natural hurt that she will feel about her primary position being rejected, I see no reason why things should not settle down.
Section 60CC(3)(m)
There are no other matters which I regard as relevant in this regard.
Taking into account all the relevant considerations, it is quite clear in my view, a view supported by Dr Harvey’s independent evidence, that [X] should live with her father during the week and spend three out of four weekends with her mother, as has substantially been the case for a not inconsiderable period of time. She should continue to attend the same school.
Changeovers
I have already made findings of fact about the parties’ conduct in relation to changeovers. It is clear that the parties find it difficult to be in each other’s presence without being abusive.
In the circumstances, and given the mother’s difficulties with punctuality, and notwithstanding her dislike of being in the presence of Mr Rousseau, I accept the submissions from counsel for the Independent Children’s Lawyer that the mother should collect [X] from the father at commencement of time, and the father should collect [X] from her mother at the end.
Post-separation Course
I have already indicated that this is appropriate and it should be undertaken by both parties with some body such as Gordon Care.
Non-denigration and non-discussion of the court proceedings
It is plainly in the child’s best interests that orders to this effect be made. It is only through [X]’s inherent strength of character that the child has not been more severely affected by the mutual denigration of her parents and the extent to which they have made her aware of these court proceedings.
Materials from school
There is no reason why the mother should not have copies of school reports and the like.
Health matters
Once again, there should be orders that each party inform the other of any major issue as to [X]’s health while she is in their care.
Restraint on Mr G
There is already in place a Court order to restrain the mother from bringing the child into contact with Mr G. For the reasons already described, that should continue.
Conclusion
I think I have disposed of all matters in controversy between the parties. The Court will prepare draft orders giving effect to these conclusions. I will give the parties an opportunity to consider these draft orders in case there is anything I have overlooked.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 15 October 2009
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