RP and JP
[2007] FMCAfam 654
•31 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RP & JP | [2007] FMCAfam 654 |
| FAMILY LAW – Parenting orders. |
| Family Law Act 1975 (Cth) ss.60CC(2)(a) and (b), 60CC(3)(a), (b)(i) and (ii), (c), (d), (e), (f), (g), (i), (j) and (k), and 65L Federal Magistrates Court Rules2001 (Cth) r.23.01A5(a) |
| ASR & BP [2007] FMCAfam 552 P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 |
| Applicant: | R J P |
| Respondent: | J F P |
| File number: | MLM 9622 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 19 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2007 |
REPRESENTATION
| Applicant: | Mr Pearson in person |
| Counsel for the Respondent: | Mr A. Scriva |
| Solicitors for the Respondent: | Peter S Dunn & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms MG McNamee |
| Solicitors for the independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That the Father and Mother have equal shared parental responsibility.
That the Children live with the Mother.
That the Children spend time with the Father as follows:
(a)on the first, third and any fifth Saturday of each month, from 1.00 pm to 7.00 pm;
(b)on the second and fourth Sunday of each month, from 10.00 am to 5.00 pm;
(c)on each Wednesday evening from 5.30 pm to 8.30 pm; and
(d)on the following days for the following periods irrespective of any other of these orders:
(i)on the Father’s birthday from 10.00 am to 6.00 pm, unless it is:
A.a school day, in which case from 5.30 pm to 7.00 pm; or
B.on a day which the Children are otherwise spending time with the Father under orders 3 or 4, in which case in accordance with those orders;
(ii)on each of the Children’s birthday from 1.00 pm to 6.00 pm, unless it is a school day, in which case from 5.30 pm to 7.00 pm;
(iii)on Father’s Day from 10.00 am to 6.00 pm; and
(iv)on Christmas Day from 1.00 pm to 7.00 pm.
That with effect from 1 July 2008, and then only if the Father has completed the parenting programme referred to in orders (14) and (15) below, the Children spend time with the Father as follows:
(a)in lieu of order (3)(a) and (b) above, on each alternate weekend from 10.00 am on Saturday to 4.00 pm Sunday; and
(b)in lieu of order (3)(c) above, from 5.30 pm Wednesday to 8.30 am Thursday each week;
(c)on Victorian gazetted school holidays:
(i)from 9.00 am on 2 January to 9.00 am on 16 January each year during the Christmas school holidays; and
(ii)from 10.00 am on the first Saturday to 10.00 am on the second Saturday of all other school holidays,
provided that if Mother’s Day or the Mother’s birthday fall on any day within the periods in orders (3) and (4)(a), (b) and (c) above, then irrespective of orders (3) and (4)(a), (b) and (c) above, the Children spend time with the Mother as follows:
(d)on Mother’s Day from 10.00 am to 6.00 pm; and
(e)on the Mother’s birthday from 10.00 am to 6.00 pm.
That the Children shall be allowed to speak on the telephone with the parent with whom they are not living or spending time with each Monday and Friday between 6.30 pm and 7.00 pm, and the parent with whom the Children are living or spending time with shall ensure the Children are available to receive the call.
That each parent facilitate any reasonable request by one or both of the Children to telephone the other parent.
Change over shall occur at the W Police Station car park, with:
(a)the parties to park at opposite ends of the car park at the commencement and conclusion of time spent with each parent;
(b)neither party to approach the other; and
(c)neither party to attempt to communicate with the other, save by the means set out in order 8.
The parents shall use a communication book to convey information about the Children, the communication book to be passed between the parents at change over, via the eldest of the Children.
Each parent is to have and maintain a mobile telephone, and is to advise the other parent of a mobile telephone number to be used to contact that parent for the purposes of any contact required by these orders, with:
(a)the Father to advise a mobile telephone number to the Mother’s solicitors by 4.00 pm on 5 September 2007; and
(b)the Mother, via her solicitors, to advise a mobile telephone number to the Father by 4.00 pm on 6 September 2007.
Each parent shall advise the other of any serious illness or injury suffered by the Children as soon as practicable within 12 hours of the occurrence of the injury or onset of the illness.
That each parent is authorised by these orders to communicate directly with the Children’s school, medical and other health practitioners on any matters concerning the Child, and those persons are authorised by these orders to release the original or a copy of any reports, documents or other materials concerning the Child to each parent.
Neither parent shall denigrate the other to or in the presence of the Children and neither party shall involve the Children in issues in dispute between the parents.
Under s.65L of the Family Law Act 1975 (Cth) these orders be supervised by a Family Consultant appointed by the Manager, Child Dispute Services, Melbourne Registry, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying of, these orders until 31 August 2008.
That by 4.00 pm on 14 September 2007 the Father is to contact the Family Relationship Centre nearest his current residence to gain assistance in enrolling in a Parenting Orders Program for high conflict families, and that by 4.00 pm on 28 September 2007 the Father is to be enrolled in such a program at a Family Relationship Centre.
That the Father shall fully participate in and complete the Parenting Orders Program referred to in order (14) and shall comply with all reasonable directions by the Program Director.
The parents shall consult with respect to:
(a)the enrolment of the Children in child care, school and any changes in enrolment once enrolled;
(b)the Children’s religious upbringing; and
(c)appropriate medical, dental and other health practitioners for the Children as the need requires,
and, in the event that the parents are not able to agree in relation to the above issues the parents are to be referred to a mediator nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court for mediation in an endeavour to resolve such issues. If there are costs of the mediation, these costs are to be shared equally between the Mother and Father.
The Father shall not use cannabis, nor be under its influence, whilst spending time with the Children.
The Father shall be entitled to attend each alternate school function or event concerning one or both the Children and the Mother shall advise the Father of the forthcoming function or event.
The Independent Children’s Lawyer be discharged.
These orders operate with effect from 7 September 2007, unless otherwise stated.
For the purposes of these orders “weekend” means a Saturday and a Sunday as consecutive days.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth) 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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM9622 of 2006
| R J P |
Applicant
And
| J F P |
Respondent
REASONS FOR JUDGMENT
Heading 1 style
Application
The Applicant Father, R J P (“Father”), seeks parenting orders concerning the Children of his marriage with the Respondent Mother,
J F P (“Mother”).
E J P, born 2 October 2000, and H J P, born 24 June 2002 are the children of the marriage (“Children”).
The real dispute between these parties is about the time the Father will spend with the Children and the conditions, if any, to be attached to any time spent.
Evidence
Documents relied on – Father
The Father read his affidavit sworn 2 November 2006 (“Father’s Affidavit”).
Oral evidence – Father
The Father was cross-examined and re-examined.
Documents relied on – Mother
The Mother relies upon:
a)the case outline filed in Court on the first day of hearing (“Mother’s Case Outline”); and
b)the Amended Response dated 8 June 2007 (“Amended Response”),
and read the following affidavits:
c)the Mother’s Affidavit sworn 16 January 2007 (“Mother’s First Affidavit”); and
d)the Mother’s Affidavit sworn 8 June 2007 (“Mother’s Second Affidavit”).
Oral evidence – Mother
The Mother was cross-examined and re-examined.
Family Report
A Family Report was prepared by Mr Moar (“Family Report Writer”), dated 21 May 2007 and released to the parties pursuant to r.23.01A5(a) of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”). As the Mother effectively relied upon the Family Report the Family Report Writer was treated as a witness for the Mother and was cross-examined by the Mother’s counsel, but not re-examined.
Background facts
Uncontroversial relevant background facts include the following:
a)the Father is aged 40 and the Mother is aged 37;
b)the Children are aged 6 and 5 respectively;
c)the Father and Mother commenced cohabitation in 1992 and were married on 10 February 1996; and
d)the parties separated on 10 March 2006.
The Law
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[1] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford v Tank,[2] a case concerning final orders, said that the failure to follow the steps laid out in Goode was an error of law. The steps identified in Goode (albeit in an interim application) are as follows:
[1] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[2] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
“(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.”[3]
[3] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Issues and Orders Sought
The parties agree that:
a)the parents have equal shared parental responsibility for the Children;
b)the Children live with the Mother;
c)the Father be provided with school photos, newsletters and reports, and he participate in usual school events; and
d)change over occur at W Police Station.
The parties particularly disagree about:
a)the time the Father should spend with the Children (including the extent of telephone communication);
b)whether the time spent should be gradually increased and the conditions for gradual increase, and whether the Father’s accommodation should impact upon time spent and a graduated increase in time;
c)in relation to the conditions for gradual increase whether it ought to be contingent upon:
i)the Father having “suitable accommodation”; and
ii)review by a Family Consultant at quarterly intervals;
d)that overnight stays by the Children with the Father be contingent upon a full psychiatric assessment, and consultation with and the following of the advice of relevant health professionals;
e)whether the Father’s participation in school events should be on a rotational basis with the Mother;
f)the conditions for change over;
g)a non-denigration of the other parent and a non-discussion of the proceedings provision;
h)use of a communication book; and
i)supervision under s.65L of the FL Act.
To some extent the scope of the disagreement is ameliorated by the Father’s final submission in which he said, “All I ask is, give me the rules and I’ll abide by them … I just want to see my kids.”[4]
[4] Transcript, at 114, see also at 58-59.
Equal Shared Parental Responsibility
The FL Act presumes that there will be equal shared parental responsibility. The parties agree on this, and there is nothing in the evidence to indicate that equal shared parental responsibility is not in the best interests of the Children.
The Court will order equal shared parental responsibility in this case.
Time Spent
Where a parenting order provides for equal shared parental responsibility the Court must consider whether the Children spend equal time with each parent, that being presumed to be in the best interests of the Child.[5] Equal time with each parent is qualified by a requirement that it be reasonably practical.[6] In this case it is not reasonably practicable for the Children to spend equal time with each because:
a)the parents live some (but not a significant) distance apart and that may cause some difficulties with the Children’s day-to-day activities;
b)of the Father’s work arrangements; and
c)of the Father’s accommodation arrangements, which are arguably more suitable for shorter rather than longer periods of time spent.
[5] FL Act, s.65DAA(1)(a).
[6] FL Act, s.65DAA(1)(b).
The question therefore becomes whether the Father should spend substantial and significant time with the Children, and, if so, how much substantial and significant time, or other time. To determine that question it is necessary to have regard to the relevant primary and secondary considerations in, and underlying objects of, the FL Act.[7]
Primary Considerations – section 60CC(2)
[7] FL Act, ss.60CC(2), (3), (4) and (4A) and 60B.
Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)
The emphasis here must be on the benefit to the Child, not any ongoing dispute between the parents.[8]
[8] PS & OS [2007] FMCAfam 285 at para 23 per Lucev FM: see also P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 at 184 (“Parkinson”).
There is no dispute that the parents have the capacity to have a meaningful relationship with the Children. In the case of the Father it seems that capacity is contingent upon his spending time with the Children, but there is, nevertheless a strong emotional bond between the Children and parents best maintained by both parents spending time with the Children.[9] There is no dispute that the Children’s best interests would be served by maintenance of that relationship, which would be likely to be meaningful.
[9] Family Report, para 73.
Risk of Harm to the Children – section 60CC(2)(b)
The Mother and the Independent Children’s Lawyer (“the ICL”) raise a number of concerns about the Father’s actions and behaviours including:
a)his mental health, and the need for psychiatric assessments and possible treatment;
b)aggressive and erratic behaviour;
c)failure to take prescribed medication and the ongoing use of cannabis to self-medicate; and
d)inappropriate discussion with the children of various issues between the parents, causing the Children stress and anxiety.
The ICL says that either or both of post-separation parenting education or counselling is required.
There is no doubt that the Father’s behaviour is sometimes aggressive and erratic: his behaviour in the hearing was an adequate demonstration.[10] The causes appear to range from anxiety caused by his separation from the Children, through to his “self-medicating” by the daily use of cannabis.
[10] Transcript, at 102, 108 and 114-115.
The Court considers that there is insufficient evidence to warrant an order for psychiatric assessment of the Father.[11] The erratic and aggressive behaviour can be addressed by:
a)requiring the Father to undertake a parenting programme; and
b)a s.65L, FL Act supervision order.
[11] Family Report, para 90 (“not suggested … as a condition of an order”).
To address the other issues, there will also be a non-denigration order, and an order that the Father not use illicit drugs in the presence of the Children, or be under the influence of illicit drugs whilst spending time with the Children.
Other considerations – section 60CC(3)
Views expressed by the Children – section 60CC(3)(a)
Although young, the Children’s attachment to their parents is clear,[12] and the Mother acknowledges that the Children are pleased to spend time with the Father.
[12] Family Report, para 73.
Relationship of the Children to parents and other significant persons – section 60CC(b)
There is no dispute that the Children have proper relationships with each parent, and with members of the family of each parent; and there is no evidence to the contrary.
Parental facilitation and encouragement of a close and continuing relationship between Children and other parent – section 60CC(3)(c)
The Mother has facilitated and encouraged the Children to have an ongoing relationship with their Father. The Mother supports the Children’s relationship with the Father, and it is clear that the Children have responded to that support, and consequently have a good relationship with the Father.[13]
[13] Family Report, para 71.
The Father does not have a positive relationship with, or attitude towards, the Mother, and in many respects blames the Mother for his current situation. From the evidence it appears that there have been occasions when the Father has discussed these matters with the Children. That is inappropriate. There will be a non-discussion order, and the Father will be required to attend a parenting programme. Further, it is proper for there to be a communication book to ensure that issues concerning the Children are communicated, that being in the best interests of the Children, a point ultimately conceded by the Father.[14] A communication book should be used for the purpose of communication between the parents concerning the Children, not for the parents to criticise each other.[15] To attempt to reduce any risk of the communication book being used for an improper purpose there will be non-denigration and supervision orders.
[14] Transcript, at 58. See also Family Report at para 75.
[15] See ASR & BP [2007] FMCAfam 552 at para 105 per Lucev FM and PS & OS [2007] FMCAfam 285 at para 77 per Lucev FM for reasons for differing outcomes as to the requirement for use of a communication book.
Likely effect of changes in Child’s circumstances – section 60CC(3)(d)
As it is agreed that the Children will continue to live with the Mother there will be an ongoing measure of substantial stability in the Children’s circumstances.
As the parties and the ICL agree that the restoration of the Children’s relationship with the Father is in the best interests of the Children the effect of changes if the Children are to spend time with the Father will be conditioned by the amount of time to be spent with the Father and whether that time includes overnight time.
Overnight time with parents is important for the Children, especially in the context of the benefit to the Children from a meaningful relationship with the parents.[16] However, the best interests of the Children in this case require consideration of other issues in this regard. First, the Father’s ongoing use of cannabis is an inappropriate example for the children and the greater the time spent the more likely it is that the Children will be exposed to:
a)use of cannabis by the Father; or
b)the Father under the influence of cannabis,
no matter what non-use or non-influence orders the Court makes. That is probably particularly so in the context of overnight time spent by the Children with the Father.
[16] Cardaklija & Cardaklija [2007] FMCAfam 16 at paras 26-40 per Altobelli FM (“Cardaklija”); ASR & BP [2007] FMCAfam 552 at para 12 per Lucev FM.
Second, the Father’s caravan accommodation is probably not ideal in the long term as accommodation for the Children. Doubtless it might suffice, especially if overnight stays were to only be for one or two nights, but the prospect of the Children spending all of their time, (and particularly for example, on school holidays), every time, in caravan accommodation is not ideal. To his credit, the Father recognises this, and has been taking steps in an endeavour to secure housing which would be more conducive to spending quality time with the Children.
Third, and probably most importantly, the restoration of the relationship between the Children and the Father will need to be approached gradually. The Father’s understandable desire to see and spend time with the Children cannot take the form of sudden dislocation of the children, to their possible detriment. The fact that the Children’s circumstances might have been the subject of sudden dislocation in the past, and that the Father perceives that this was wrong, and that it caused him significant distress (which is undeniable on his evidence) is irrelevant. The best interests of the Children are best served by the gradual re-establishment of their relationship with the Father, not sudden dislocations. This is not a game of tit-for-tat, and if one or both parents think it is, then they are wrong.
Finally, the Court considers it appropriate that the Father complete a parenting programme before overnight time spent is implemented.
The Court considers that any changes to be wrought to the Children’s circumstances needs to be approached carefully. If overnight time spent with the Father is delayed it:
a)will allow time for the Father to complete a parenting programme;
b)may enable the Father to find more suitable accommodation; and
c)allow the Children to gradually, and without undue dislocation, re-establish their relationship with the Father.
Practical difficulty and expense of Child spending time and communicating with parents – section 60CC(e)
The parties live less than fifty kilometres apart in rural Victoria. They both have adequate means of transport. There is no practical difficulty or unusual expense involved.
Capacity to provide for the needs of the Child – section 60CC(3)(f)
The Mother does not dispute the Father’s capacity. The Court is satisfied that the Father has the capacity to deal with and provide for the needs of the Children, save for reservations about his capacity to deal with their emotional needs, but only in the context of his discussions with the Children concerning their Mother and the conduct of these proceedings. That issue is adequately dealt with above.
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
These issues are adequately discussed above.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Child and parental responsibilities – section 60CC(3)(i), (4) and (4A)
Overall, the Court considers that the Mother has to date exercised the responsibilities of parenthood to a degree greater than that of the Father, but subject to completing a parenting orders programme and compliance with the orders made by the Court, the Court is satisfied the Father is capable of properly carrying out those responsibilities during any time that the Child might live with him.
Family Violence or Family Violence Orders involving the Children or a member of the family– section 60CC(3)(j) and (k)
There are allegations of family violence, and, at the time of hearing a current Intervention Order, which had been breached by the Father. The Father’s behaviour the subject of the Intervention Order and breach has been directed toward the Mother, not the Children. The nature of abuse directed toward the Mother is such that it raises concerns in relation to situations such as change over and school functions at which the Father and Mother might come into contact. It seems desirable that that not occur.[17]
[17] Family Report, para 96.
For that reason the changeover order and school function orders will generally be as sought by the Mother, and the school function attendance order will oblige the Mother, with effect from 7 September 2007, to contact the Father to discuss whether the Father wishes to attend forthcoming school functions on an alternate basis, and if the Father does not wish to do so the Mother may attend instead. It does not appear that the Children are at any real risk of violence from the Father.[18]
[18] Family Report, para 91.
Order less likely to lead to further proceedings – section 60CC(1)
The Court has endeavoured to frame orders that will simplify the parents dealing with the Children. Hopefully, this will ensure that further proceedings are unnecessary.
Consideration
The Children should spend time with the Father. Initially, the Court considers that the Children ought to spend time with the Father during the day on Saturdays and Sundays and one evening during the week. That time will be from 1.00 pm to 8.00 pm on alternate Saturdays and from 10.00 am to 5.00 pm on alternate Sundays, and from 5.30 pm to 8.30 pm on Wednesday evenings.
From 1 July 2008, and subject to the Father having completed a parenting programme:
a)the Children’s time spent on Saturdays and Sundays will change to 10.00 am Saturday to 4.00 pm Sunday every fortnight;
b)the time spent on Wednesday evenings will be extended from 5.30 pm on Wednesday evening to 8.30 am on Thursday morning;
c)the Children will spend time with the Father as follows on school holidays:
i)on the Victorian Christmas school holidays from 9.00 am on 2 January to 9.00 am on 16 January; and
ii)on other gazetted Victorian school holidays from 10.00 am on the first Saturday of the holidays to 10.00 am on the second Saturday of the holidays.
The Children will also be allowed to spend time communicating with their Father on Monday and Friday evenings between 6.30 pm and 7.00 pm by telephone. When the Children are spending time with the Father on school holidays the Mother will be allowed to spend time communicating with the Children on Monday and Friday evenings between 6.30 pm and 7.00 pm. The Children will be allowed to telephone either parent at any reasonable time by telephone. The Court has also made provision for the Children to spend time with the Father and Mother on occasions of special significance.
Orders
The Court makes orders as set out in the Orders immediately prior to these Reasons for Judgment, and considers that those orders are in the best interests of the Children.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: J. Semler
Date: 31 August 2007
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