SABUDA & WALDOCK

[2020] FCCA 1552

FEDERAL CIRCUIT COURT OF AUSTRALIA

SABUDA & WALDOCK [2020] FCCA 1552

Catchwords:
FAMILY LAW – Children – best interests – residence – interim orders – where the child had been in the primary care of the paternal grandparents since separation – where the paternal grandparents are no longer parties to these proceedings – where the mother has spent very little time with the child prior to these proceedings – where the father has not been supportive of the child’s relationship with the mother – where the mother has identified a number of protective factors to support the development of the child’s relationship with her.  

Legislation:

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

Applicant: MS SABUDA

Respondent: MR WALDOCK

File Number: BRC 8503 of 2019

Judgment of: Judge Cassidy

Hearing date: 21 April 2020

Date of Last Submission: 21 April 2020

Delivered at: Brisbane

Delivered on: 24 April 2020

REPRESENTATION

Solicitors for the Applicant: Genuine Legal

Solicitors for the Respondent: Self-Represented

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:  

1. That all previous Parenting Plans and Parenting Orders be discharged.

Equal Shared Parental Responsibility

1. That the parties have equal shared parental responsibility for the long term care, welfare and development of the child X born in 2014 (‘the child’).

Living Arrangements

1. That the child live with the mother commencing after school on 24 April 2020.

2. That the child spend time with the father for five (5) nights a fortnight commencing after school on Friday, 01 May 2020 until before school on Wednesday, 06 May 2020 and each alternate week thereafter.

3. That for the purposes of the preceding order, school holiday time shall commence:

   (a)When a party’s time falls in the first half of the holidays from after school on the day that the school term finished and concludes at 3:00pm on the day calculated to be half of the holidays;

   (b)When a party’s time falls in the second half of the school holidays from 3:00pm on the day calculated to be half of the holidays when contact shall end before school on the day that the school term commences;

   (c)School holidays shall be deemed to commence at the close of the school on the day that the school term finishes and conclude at the open of the school on the day that the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holidays and if there is an uneven number of nights the mother shall retain the extra night in odd years and the father shall retain the extra night in even years.

Special Occasions

1. That when the child is not ordinarily spending time with the father, the time the child spends with the mother shall be suspended and the child shall spend time with the father during the following occasions:

   (a)From 5:00pm on the Saturday immediately preceding the father’s day until 5:00pm on father’s day

   (b)From 2021 and each alternate year thereafter, from 9:00am until 1:00pm on the child’s birthday if the said birthday falls on a non-school day, or if the said birthday falls on a school day, from the conclusion of school until the commencement of school on the day after the said birthday;

   (c)Commencing in 2020 and each alternate year thereafter, from 10:00am on Good Friday until 5:00pm on Easter Sunday;

   (d)From 10:00am on the Father’s birthday until 9:00am the following day; and

   (e)From 10:00am on each of the Paternal Grandparent’s birthdays until 9:00am the following day; and

   (f)Any other times as agreed between the parties in writing, with no less than fourteen (14) days’ notice.

2. That when the child is not ordinarily spending time with the Mother, the time the child spends with the Father shall be suspended and the child shall spend time with the Mother during the following occasions:

   (a)From 5:00pm on the Saturday immediately preceding Mother’s Day until 5:00pm on Mother’s Day;

   (b)From 2020 and each alternate year thereafter, from 9:00am until 1:00pm on the child’s birthday if the said birthday falls on a non-school day, or if the said birthday falls on a school day, from the conclusion of school until the commencement of school on the day after the said birthday;

   (c)Commencing in 2021 and each alternate year thereafter, from 10:00am on Good Friday until 5:00pm on Easter Sunday;

   (d)From 10:00am on the Mother’s birthday until 9:00am the following day; and

   (e)Any other times as agreed between the parties in writing, with no less than fourteen (14) days’ notice.

Changeover

1. That unless otherwise agreed between the parties, changeovers are to occur as follows:

   (a)If a school day, changeovers shall occur at the child’s enrolled school, and in relation to same:

   (i)The parent commencing their time with the child is to be responsible to collect the child after school; and

   (ii)The parent concluding their time with the child is to be responsible to deliver the child to school that day.

   (b)Unless otherwise agreed between the parties, if a non-school day, changeovers shall occur at each of the parents’ residences, and in relation to the same, the Mother shall be responsible for delivering the child to the Father upon the commencement of the Father’s time with the child, and the Father shall be responsible for delivering the child to the Mother upon the conclusion of his time with the child.

2. That at changeovers, each party shall return to the other party the child’s school supplies, belongings and any clothing or shoes supplied by the other parent in a clean condition as far as reasonably practicable.

Telephone Contact

1. That the child be at liberty to contact either party at any reasonable time that she expresses a wish to do so, and in that event, the party with whom the child is with shall facilitate the child contacting the other party by telephone and/or FaceTime.

2. That the parties shall be at liberty to communicate with the child by telephone and/or FaceTime when the child is with the other party provided that such calls are made between 5:30pm and 6:30pm on Wednesday, Friday and/or Sunday.

3. That each party shall continue to maintain a mobile telephone service to facilitate both telephone calls and FaceTime.

4. That each party shall ensure that the child have privacy during any conversations between the child and the other party.

Provision of Information

1. That unless in cases of emergencies, the parties shall communicate by way of text-message and/ or emails only.

2. That for the purposes of Order 14 of these Orders, the parties shall only communicate with each other in relation to the welfare, decisions, living arrangements and spend-time arrangements of the child.

3. That each party is to immediately notify the other if the child is seriously ill or is admitted to hospital at such time as the child is in the care of that party and advise the other of the names and addresses of the treating doctors and dentist if requested by the other party, shall authorise any treating practitioner to discuss the child’s medical issues with them.

4. That both parents shall keep the other parent informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the child within forty-eight (48) hours of any appointments.

5. That each party is at liberty to discuss the child’s progress at school with the principals or teachers of such school as the child may attend from time to time and that each party arrange for such authorities as may be required to enable such schools to independently furnish the other party at their expense any school reports, photographs and notices.

6. That the parties do all such acts and sign all such documents as may be required to authorise any school which the child may attend to notify the other party of, and facilitate the other party attending any school events or extracurricular activities including but not limited to parent/ teacher interviews, sporting events and concerts.

7. That the parties shall keep the other advised of their mobile telephone numbers and email address and shall notify the other of any changes thereto within twenty-four (24) hours of such changes occurring.

8. That the parties shall keep the other advised of the full and correct detail of their residential address and advise the other in writing not less than fourteen (14) days in advance of any proposed change of residence.

9. That each party promptly advise the other of:

   (a)Any significant illness, accident or injury suffered by the child;

   (b)Any significant medical or dental treatment provided to the child; and

   (c)Any medication the child has to take while in the other party’s care including dosage.

Non-Denigration

1. That during the time the child is with either parent, that parent shall:

   (a)Respect the privacy of the other parent and refrain from questioning the child about the personal life of the other parent;

   (b)Speak of the other parent and their partner (if any) respectfully;

   (c)Not denigrate or insult the other parent’s extended family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent’s extended family in the hearing or presence of the child; and

   (d)Remove the child from any situation where they may be exposed to verbal, emotional or physical abuse.

Education

1. That the mother shall be at liberty to enrol the child in a school nominated by her from the commencement of term three (3) with the mother to provide the father notice of the school she intends to enrol the child in forthwith.

Next Return Date

1. That this matter be adjourned for mention only at 9:30am on 04 November 2020 in the Federal Circuit Court of Australia at Brisbane.

2. That both parties be at liberty to appear by telephone on 04 November 2020, provided that each party notify the Court by email ([email protected]) or by telephone [phone]) of an appropriate contact number by no later than 4.00pm on 28 October 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8503 of 2019

MS SABUDA

Applicant

And

MR WALDOCK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a matter where the mother and father have asked me to decide the future parenting arrangements for a little girl, X born in 2014 (herein ‘the child’ or ‘X’). She is six (6) years old.

2. The matter began with the mother as the applicant and the father and his parents as the respondents. This was because the child had been residing with the paternal grandparents since separation, which occurred in or around April/May 2018.

3. The paternal grandparents filed a notice of discontinuance on 19 March 2020. A trial had been set down to commence on 21 April 2020 however, the trial was not to be able to proceed because the father became the only respondent in the proceedings.

4. In circumstances where the child had been living with the grandparents since separation, I considered it necessary to only do an interim hearing and I also ordered an addendum to the family report of Ms A dated 18 February 2020

5. It became a question then, of a hearing about whether the child should live with the mother or the father, in circumstances where the child had not lived with either of them since April or May of 2018.

The Mother’s Proposal

1. The mother’s proposal was set out in her outline of case that she filed on 17 April 2020. If I were to make the orders the mother sought, the child would live with the mother and spend time with the father, increasing, initially, from daytime to four (4) nights a fortnight. This increase in time would occur over about thirteen (13) weeks.

2. The mother also proposes half of all school holidays and orders for special occasions that are unlikely to be controversial. 

3. I do not intend to make the interim orders sought by the mother in relation to travel or passport issues. They are matters that are more suited to a final hearing.

4. The other significant issue the mother seeks an order about is the child’s education. The mother seeks an order that the mother be at liberty to enrol X in another school upon the conclusion of the June/July school holiday period in 2020 and after consultation with the father.

The Father’s Proposal

1. In relation to the father’s proposal, his position is that the child should live with him and spend time with the mother for four (4) nights a fortnight from after school Friday to before school Tuesday.

2. The father also seeks an order that X spend time with the grandparents, as agreed between the parties, or failing agreement at the conclusion of school on a Friday or on a Friday at 9 o’clock if there was no school. He also proposes half the school holidays in relation to the child.

3. The father then, during the interviews for the addendum to the family report, proposed an equal time arrangement.  He also made a further proposal in an affidavit that he filed on 17 April 2020, which was that X live with the father nine (9) nights per fortnight and spend five (5) nights per fortnight with the mother.

4. That was in line with the second family report that was the addendum ordered after the grandparents discontinued their proceedings.

Background

Parenting Arrangements

1. The parenting arrangements in this matter have not been made all that clear, but on the evidence, given there is a contest that is quite significant, the mother’s case is that she was a primary carer during the relationship, although she accepts that the paternal grandparents provided significant care for the child whilst she worked. 

2. The father’s case is that he was involved with the child’s care, to a large extent, and his parents were also actively involved in the child’s care.

3. I am not able to make any findings in relation to those questions on an interim basis.

4. Certainly, post-separation, the mother has had very little time with the child until I made orders in October of 2019. It seems she has only had about one weekend with the child, and that separation occurred in April/May of 2018. I made orders on 3 October 2019, and those orders provided for an increase in time until the mother was to spend alternate weekends with the child.

5. On 18 February 2020 a full family report was released which recommended that X continue to live with the paternal grandparents for the immediate time, while X’s time with the mother was to increase in increments, with the ultimate goal being that she was to move into her mother’s primary care in July of 2020 during the school holidays. 

6. Of course, that was not able to be put in place, because the grandparents discontinued their proceedings and that necessitated, as I have indicated, an addendum report, and the adjournment of the trial.

The Education History. 

1. X is currently enrolled in the B School. The father and his parents, it seems, selected this school.

2. The father’s evidence in relation to this is that he selected the school and that it would be in the child’s best interests to continue at that school. 

3. The mother’s evidence is that she was not involved with the decision, and the father and the grandparents elected to choose the child’s school, without consultation with her. I note the mother wishes to change the child’s school after the June/July holidays and her reasons for wishing to do that are set out in her affidavit.[1]

   [1] Affidavit of Ms Sabuda filed 17 April 2020. 5[74].

4. The mother says in her affidavit, that she is an hour away from the school, and her concern is about the amount of time it would take to get to the child’s school if there was a sickness or an emergency. 

5. She did not consider keeping X at the B School as a practical or long term arrangement in the event that X comes into her primary care, and she intends to explore a possible change of school.

Domestic Violence

1. With respect to domestic violence, there were allegations of domestic violence made by the mother in this case. A temporary order was made by Magistrate C, without admissions by the father, on 12 July 2018. The mother was the aggrieved and the father was the respondent.  A verdict and judgment were recorded in the matter and they are annexed to the affidavit of the grandfather, where basically, the application was dismissed..

Violence/Abuse

1. With respect to the issues of any risk of violence or abuse towards the child, fortunately this is a matter where there are no allegations of risk or violence. 

Legal Principles

1. In relation to the legal principles that I have to consider, they are set out in the Family Law Act1975 (Cth) (herein ‘the Act’), and I have to be satisfied in relation to some primary considerations and additional considerations. I have to have regard to the best interests of the child as my paramount consideration.

Primary Considerations

1. The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence.[2] 

   [2] Family Law Act 1975 (Cth) ss 60CC(2)(a), (b).

2. I am not able to make any findings in relation to the risks alleged in relation to family violence. They are matters that would require a full hearing with cross-examination for me to make any findings.

3. I am satisfied that it is important for X to have a meaningful relationship with both her mother and her father, and this is conceded by both of the parents. 

Additional Considerations

1. In the additional considerations, I have to look at X’s views.  She is only six years old, so her views are not a significant factor in coming to the decision I have in this matter, but I am certainly conscious of them and they are contained in paragraphs [92] – [96] of the family report:

   “92. When we first settled in my room, X seemed comfortable chatting about how nice it was to see the mother.  Then quite unexpectedly, but quickly she quickly moved into talking to me about the time her mother locked her in her bedroom when they lived together. When I explored how she knew this, she said she could remember. Subsequently, she began talking about how much she wanted to live with the mother and see the father, grandparents at the weekend. She said she wanted to be with her mother in the school week and really wanted to spend more time with her. 

   93. X described the time with her mother positively and said they drew together, read books and watched movies together.  She said it had been good seeing her again and she missed her.

   94. X said she was enjoying spending overnights with her mother and did not wake up there. She said if she did, her mother would cuddle her. She told me she only woke up at the grandparents’ home. 

   95. X spoke about her grandparents, both parents and Ms D positively. She spoke of being excited for her new baby brother. She spoke of animals that she looked after in the father’s and grandparents households. 

   96. X spoke of enjoying school and her friendship groups.”

1. The interactions with X and her mother were, it seems, very positive. They are set out in paragraphs [97] to [100] of the family report. 

Relationship with Significant Persons

1. With respect to the child’s relationship with significant persons, this is a complex question in this matter, because the two parents who are now seeking orders that the child live with them, have not been primarily caring for X for some time.

2. The observations of the expert made of the child with her parents, were positive, and the observations of the mother and the child, as I said, have been recorded in the family report.

3. The observations of the father included the father, his partner and the paternal grandparents. No observations were made of the father and the child alone. I make no criticism of this, because the family group was, in fact, the group that the child had been used to in the living arrangements that were in place at the time of the first family report.

1. Indeed, the family report writer in that report, was asked to consider whether the child should continue to live with the grandparents, supported by the father, or live with the mother. Of course, that situation has now dramatically changed. The withdrawal of the grandparents, as potential primary carers, means that this group dynamic will change dramatically regardless of where I put the child.  The grandparents are proposing that the father should assume primary care of the child.

2. I consider the single most significant relationship the child has had since May of 2018, is with the grandparents, who assumed the primary care of the child.  However, they are no longer a party to these proceedings and I therefore cannot make any orders in relation to the child spending time with them.

The Parenting and the Discharge of Parenting Responsibilities

1. In relation to the parenting and the discharge of parenting responsibilities, I will consider a number of the section 60CC factors together. Section 60CC(3)(c), the extent to which each of the child’s parents has taken or failed to take an opportunity to participate in making decisions about the long term issues in relation to the child, spending time with the child, and communicating with the child. Again, it is difficult for me to make findings at this stage, but I can certainly observe that the father’s case is the mother was not interested in participating in any way in the care of her daughter.

2. The mother’s case is the father and the grandparents blocked her time with the child. I note the mother’s efforts in relation to getting a parenting plan and inquiries in relation to what school her child was attending. It seems that there were some letters written by Legal Aid to ask for the return of the child that are annexed to the mother’s affidavit and the parenting plan proposed by the grandparents for very limited time for the mother with the child.

3. I am not able to make any findings but it does not appear from the evidence that the mother was disinterested, but rather, attempting to spend time with the child, and this was not being, at this stage, facilitated by the father or the grandparents.

4. The evidence of that is that the child spent only one weekend with the mother, until I made orders.  Since those orders have been made, the child has been spending increasing amounts of time with the mother, and the effect of that has been positive, if I can accept the observations made by the family report writer.

5. I have to look at the extent to which each of the parents have fulfilled their parenting obligations to maintain the child, and I note that the grandparents were supporting the child during the time she lived with them. 

6. The mother’s evidence is that she had made some contributions to the child’s expenses. There is no evidence from the father in relation to that issue.  I am satisfied that both of them can maintain the child, because both of them are in full time employment. 

7. I have to look at the capacity of the parents to provide for the emotional and intellectual needs of the child. I have no doubt that both parents will be able to provide for the child’s emotional and intellectual needs. I have some concerns about the attitude that the father has to the mother in relation to being able to support the relationship of the child and the mother.

8. Ms A in the first report prepared, at paragraph [57] says:

   “57. Mr Waldock struggled to consider anything positive about the mother or her parenting, describing her with “sociopath” qualities. When reflecting on her parenting in the relationship he described her as absent and disconnected. He spoke through incidents he had disapproved of, when she used sleep training methods with X and kept her in the bedroom and an incident when she pulled X’s hair (when X was 2 years old)”.[3]

   [3] Family Report of Ms A dated 18 February 2020 at paragraph [57].

1. The grandparents’ opinion of the mother is certainly not a positive one either. Mr and Mrs Waldock, in the first family report, did not think that X was excited to spend time with her mother, providing an example of when she came back from a visit, stating she was happy to be at home. They said X never spoke about the mother or even identified her as a favourite person. They described a therapeutic activity she had undertaken, encouraging her to think of people and things meaningful to her on a desert island, stating that X never mentioned her mother.

2. At paragraph [74] of the family report Mr and Mrs Waldock described a similar account to the father, of feeling they had tried to work with the mother to negotiate parenting arrangements and they had been met with hostility. They felt that if X was moved to the mother’s primary care, she would not facilitate their time and they highlighted the need for sole parental responsibility in relation to the child.  These are the matters that I certainly took note of in coming to the decision I have.

Effect of any Change in the Child’s Circumstances

1. I have to look at the effect of any change in this child’s circumstances. Certainly the grandparents are no longer a possible primary carers to allow a graduated transition of primary care to either the mother or the father from the grandparents.

2. Neither the mother nor the father have had, primarily, the care for this child since April/May of 2018. The family report writer sets out the protective factors that she says are available in the mother’s household at paragraph [121]:

   “121. … I have assessed a number of protective factors, which could support X with this transition. These include the mother’s insight and awareness into X’s emotional needs, her descriptions of parental responses and care, and X’s positive information regarding the mother and the quality of the child-mother observations/relationship. Furthermore, the mother detailed plans to support X’s emotional, family and environmental stability through her flexible employment hours, plans to gradually build time with X and Mr E, recently renewing her lease on X’s familiar environment and plans to keep her at school for at least, the coming year.”

1. With respect to the father’s home, the advantages there would be that he would have the support from his parents, however he and his partner are untested as primary carers and they have a very new baby boy that they are also responsible for.

2. The concern I have got in terms of moving the child into the father’s household, is the attitude the father has towards the mother, which is not a positive one at all. I accept that it will be a dramatic change for this little girl, whether she moves into the father’s household or the mother’s household.

Parental Responsibility

1. I have to look at the parental responsibility, and while no one asked me for an order in relation to parental responsibility, I consider it is appropriate, on an interim basis, to make an order for equal shared parental responsibility.

2. As a consequence of that, I need to look at whether I should make an order for equal time, one of the proposals that the father discussed with the family report writer.

3. The family report writer very clearly indicated that the child would not benefit from an equal time arrangement, because these parents do not have the sort of relationship that is necessary to support a child in an equal time relationship. 

4. I have to look at substantial and significant time–where one parent seeks four (4) days, and the other seeks a five (5) day arrangement with the other parent.

5. That is substantial and significant time, and therefore falls within the Act.[4] I am satisfied that I should make an order that was recommended by the expert, which is that the child have five (5) days with one parent and nine (9) with the other. I consider that it is in the best interests of the child, at this stage, to live with the mother. 

   [4] Family Law Act 1975 (Cth) s 65DAA.

6. The reason I say that is there were protective factors set out in the family report that would assist the child in transitioning into the mother’s care.

7. Those factors were not as obvious in the father’s household. Certainly, also, the father’s attitude towards the mother was as concern, in circumstances where the child’s relationship with the mother is a developing one. I also accept that both parents were untested. Both work full time, so there was no real differentiating factor in relation to those issues. I note, that the mother said that she is able to have flexible work hours and seems sensitive to making the change as child focussed as possible.

8. The family report, at paragraph [34] of the second report, says:

   “34. My assessment remains the same for X in her mother’s household with a particular strength of the mother’s, offering information that seems child focussed and emotionally responsive.”

9. She talks about the disadvantage of this proposal being an adjustment to separation from the father and the grandparent’s care. Indeed, I am conscious of that and that is why I am ordering five (5) days in the father’s care, because I anticipate that he will have the support of the grandparents during those five (5) days, to assist the child in the transition. 

10. I will make the following orders in relation to this matter. They are, to a certain extent, the orders that were provided by the mother in her annexure attachment. 

11. I will make an order that all previous parenting plans and parenting orders be discharged, that the mother and the father have equal shared parental responsibility for the child. I will order that unless otherwise agreed between the parties, the child shall live with the mother, commencing after school on Friday, 24 April 2020, and spend time with the father, for five (5) nights a fortnight, commencing after school on Friday, 1 May 2020until before school on Wednesday, 6May 2020, and each alternate week thereafter.

12. During school holidays, I make the orders in the mother’s draft at 2(e) and (f), and I will make the mother’s draft order 3, which is for the purposes of school holidays, when the time shall commence.  The mother’s proposed orders set out the time in 3(a), (b) and (c). The special occasions set out in the mother’s draft at paragraph 4 and 5, I will make, because the father does not provide any specific orders and they are fairly simple basic orders in relation to Christmas, Mother’s Day and Easter.

13. Changeovers are to occur at school or at the homes of the parents. That is as per the mother’s draft 8.  Order 9 requires the parents to ensure the clothing is clean and provided with the child at changeovers. I will make the order for telephone contact set out in the mother’s orders, because it is not dissimilar to what the father was seeking.  That will be orders 10, 11, 12 and 13 of the draft. I am not making the orders for passports or travel.

14. I will make the orders for the provision of information in orders 21 through to 35, because they are, again, practical, sensible orders for the providing of information in relation to the child. I will make an order for a non-denigration, as per order 36 of the mother’s draft.  In relation to the education, I accept the mother’s evidence that it will be difficult for her if the child needs urgent assistance to continue to have her enrolled at the school.

15. I am satisfied, for term 3 2020, if she considers it is in the child’s best interest that it be appropriate to move her to a school closer to where she lives. I will therefore make an order that the mother be at liberty to enrol the child in the school nominated by her, from the commencement of term 3 2020, with the mother to provide the father notice of the school she intends to enrol the child in, forthwith.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Associate: 

Date: 11 June 2020