Salzer and Clinton
[2011] FMCAfam 758
•24 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALZER & CLINTON | [2011] FMCAfam 758 |
| FAMILY LAW – Parenting – re-establishment of meaningful relationship – difficult parental relationship – child’s wishes – child’s best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(3)(a), (b), (c) & (i), 61DA, 65DAA |
| Collu & Rinaldo [2010] FamCAFC 53 Goode v Goode (2007) 36 Fam LR 422 McCall v Clark (2009) 41 Fam LR 483 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR SALZER |
| Respondent: | MS CLINTON |
| File Number: | CAC 598 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 12 May 2011 |
| Date of Last Submission: | 26 May 2011 |
| Delivered at: | Canberra |
| Delivered on: | 24 June 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr R Friesen |
| Solicitors for the Applicant: | Watts McCray McGuiness Eley |
| Solicitor/Advocate for the Respondent: | Ms M Luke |
| Solicitors for the Respondent: | Strong Law Pty Ltd |
ORDERS
All previous orders made in relation to the child, [X] born [in] 2004 (“the child”) be vacated.
The Mother have sole parental responsibility for the child.
The child live with the Mother.
The child shall spend time with the Father as agreed by the parties, or failing agreement as follows:
(a)On each Saturday from 2:00pm until 4:00pm for the first six occasions.
(i)For the purpose of order 4.1 above the first occasion the Father spends time with the child shall be in the presence of the Mother.
(ii)
On the next occasion the Father shall spend time with the child with the Mother present for the first and last
30 minutes of that time.
(iii)
For the next occasion the Father shall spend time with the child with the Mother present for the first and last
10 minutes of that time.
(iv)Thereafter the Father shall spend time with the child without the Mother being present.
(v)If at any stage the Father is absent for two consecutive Saturdays with the child, the time arrangement is to return to the arrangement contained in order 4.1.2 above.
(b)On each Saturday from 1:00pm until 5:00pm for the next eight occasions with the Father to provide lunch for the child.
(c)Thereafter on each alternate Saturday from 11:00am until 5:00pm, provided that the Father has provided evidence of have completed a parenting skills course at Marymead ACT to the Mother.
(d)The Father is also to spend time with the child on special occasions as follows:
(i)On the child’s birthday from 3:30pm until 5:00pm.
(ii)On the Father’s birthday from 3:30pm until 5:00pm.
(iii)On Father’s Day from 1:00pm until 5:00pm.
(iv)For a period of up to four hours on Christmas Eve afternoon.
For the purpose of:
(a)Order 4.1 above, the time the Father is to spend with the child is to take place at a location as agreed and failing agreement at the [shopping centre omitted].
(b)Order 4.2 above, the time the Father is to spend with the child is to take place at a location as agreed and failing agreement at the Father’s maternal grandparents’ home.
(c)Order 4.3 above, the time the Father is to spend with the child is to take place at a location as agreed and failing agreement at the Father’s maternal grandparents’ home.
The Father is to ensure that no one smokes around or in the immediate vicinity of the child during the time he spends with the child.
The Father is to enrol in a parenting skills course at Marymead ACT in the next available course from the date of these Orders.
The Father is to provide evidence of having completed the parenting skills course referred to in Order 7 above prior to commencing time with the child pursuant to Order 4.3 above.
If the child becomes distressed when spending time with the Father the Father is to notify the Mother immediately by phone to arrange for the Mother to collect the child.
The Father is to facilitate the child contacting his Mother by phone if the child makes such a request.
In the event the child demonstrates symptoms of asthma including persistent coughing, wheezing, shortness of breath or difficulty speaking the Father is to cease all activities immediately and administer Ventolin and then:
(a)contact the Mother for medical advice or;
(b)call an ambulance in the case of an emergency and then inform the Mother as soon as practicable.
The Father and Mother are to continue their participation in the child inclusive process they are enrolled in with Relationships Australia ACT, meeting no less than monthly unless otherwise recommended by the mediator.
For the purpose of order 4 above the Father is to be present at all times.
The Mother is permitted to take the child away for a three week holiday during the Christmas school holiday period provided that she notify the Father in writing two weeks in advance.
IT IS NOTED that publication of this judgment under the pseudonym Salzer & Clinton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 598 of 2009
| MR SALZER |
Applicant
And
| MS CLINTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The following reasons were delivered orally on 24th June. They have been revised from the transcript.
This matter concerns (a) the parental relationship between seven year old [X] and his Father, Mr Salzer, and (b) the parental relationship between [X]’s parents. Pursuant to orders made on 12th May 2011, in the absence of agreement between the parties and to expedite the resolution of the very limited issues, the matter proceeded by way of written submissions.
The former might best be characterised as an issue that goes to the quality of the relationship between Father and son, and in terms of what section 60B of the Family Law Act (‘the Act’) describes as a “meaningful relationship”. The latter issue centres on a degree of distrust between the parents and the sometimes very significant lack of involvement by Mr Salzer in [X]’s life.[1]
[1] See s.60CC(3)(c) & (i) of the Family Law Act 1975.
The background of the dispute is simply outlined in the two reports from the experienced family report writer, Ms L. Those reports are dated respectively 15th September 2010 and 1st March 2011. For the purposes of these reasons and the proceedings more generally those two reports should be taken to be admitted into evidence pursuant to the principles set out by Warnick J, sitting as the Full Court, in SPS & PLS.[2]
[2] SPS & PLS (2008) FLC ¶93-363.
Background
For the purposes of these reasons, the Court may conveniently take as the relevant background that which is set out in Ms L’s first report in the introductory section entitled ‘background information.’ Thus, (at pp.1 & 2 of this Report)
· The parents, Mr Salzer and Ms Clinton, separated in 2004 prior to [X]’s birth.
· Mr Salzer was a presence in [X]’s life for the first seven months of his son’s life. Father and son did not again spend time together until May 2009, a gap of some four years.
· As a result of Child Inclusive mediation with Relationships Australia from May 2009 to April 2010 and of Court Intervention in May 2009, Mr Salzer and [X] now spend time together each Saturday from 2:30 – 4:30 pm with Ms Clinton present. Their time together mostly takes place in a park or, in wet weather, in a shopping complex.
· Mr Salzer and [X]’s time together has not always occurred on a consistent basis.
· Mr Salzer and Ms Clinton vary in their perception of the nature of [X]’s relationship with his father.
· Although there is good will on the part of both parents, their parenting relationship remains strained as a result of the mistrust they have in each other.
· Mr Salzer has experienced depression over the last few years for which he was prescribed anti-depressant medication. He informs that he has not required the medication for the past one and a half years.
· Mr Salzer resides with his mother and brother. Ms Clinton resides with her mother and brother.
· [X] has a medical condition that requires ongoing physiotherapy. He is asthmatic. Ms Clinton is concerned that Mr Salzer is dismissive of [X]’s medical requirements.
I also take it to be the case that the key issues identified by Ms L on page 2 of her first report remain the issues in dispute:
· The best means of progressing [X]’s relationship with his father in accordance with the child’s needs.
· Ms Clinton’s concerns regarding Mr Salzer’s capacity to appropriately care for [X].
· The difference in parenting styles and attitudes of the parents.
· The mistrust between the parents.
The Legal Architecture
The relevant principles to be applied in this case may be taken summarily from the statements of principle by Brown J in Mazorski & Albright.[3] Those principles are set out at [3] – [6] and [20] – [26] of her Honour’s judgment. Brown J’s summary statement of principle has been approved by an ever-growing number of Full Court decisions such as Moose & Moose, McCall & Clark and Collu & Rinaldo.[4]The detailed sections from Mazorski & Albright and the relevant parts of the subsequent judgments to which I have referred should be taken to be incorporated into these reasons.
[3] Mazorski & Albright (2008) 37 Fam LR 518.
[4] Moose & Moose (2008) FLC ¶93-375, McCall v Clark (2009) 41 Fam LR 483 and Collu & Rinaldo [2010] FamCAFC 53.
The summary statements of principle in Mazorski v Albright should be taken as sufficient reference to the relevant sections of Part VII of the Family Law Act, particularly those parts that deal with what does and does not constitute a meaningful relationship between parent and child.
Also by way of incorporation I note the following from Ms L’s first report (at pp.2-3):[5]
· [X] presents as a delightful, confident and charismatic six-year old.
· [X] informs that he mostly enjoys the time he spends with his father.
· [X] refers to his father as ‘[first name omitted]’ and as “more like a friend”.
· In relation to feeling safe with his father, [X] reports “yes, sometimes – sometimes, no”. He did not articulate his reasons.
· In regards to his mother being present during his time with his father, [X] said “yes, that’s really good”. He informs “I would feel sad if she wasn’t there – I’d miss her a lot – I need my Mum”.
· In relation to spending time with his father in the future, [X] reports “just Saturdays is fine”. On reflection he adds “I was also thinking of seeing [Mr Salzer] twice a week and get to spend more time with him”. [X] stresses “I wouldn’t like to live with him” and adds “stay with how things are at the moment”.
[5] A number of the following observations are relevant to s.60CC(3)(a) of the Act, taking due account of [X]’s age.
In the summary of her first Report, Ms L stated:[6]
· It is a positive sign that [X] enjoys the time he spends with his father, given a gap of some four years when his father was not a presence in his life. It is to the credit of both parents that they have achieved this outcome for [X].
· It would appear that [X] has not yet made the transition from perceiving Mr Salzer as a friend to perceiving him as a father figure.
[6] A number of the comments from both reports of the family consultant are relevant to s.60CC(b).
I note the following from Ms L’s second Report, dated 1st March 2011 (pars.4 & 5):
I understand Mr Salzer has not communicated with Ms Clinton since he left for Switzerland. Ms Clinton informs that she and [X], at the request of Mr Salzer, attended a Christmas Eve gathering at the home of Mr Salzer’s mother during which time, [X] communicated with his father for several moments by Skype. She further informs that Mr Salzer has not made further attempts to communicate with his son. Ms Clinton reports that Mr Salzer, against her wishes, gave [X] a laptop with Skype facilities before he departed for Switzerland. Ms Clinton remarks that she regards the laptop as inappropriate for a six year old child and has put it away for [X] until he is older. She states that she was hopeful Mr Salzer would telephone [X] and/or send him letters or postcards.
Ms Clinton reports that, prior to Mr Salzer’s departure for Switzerland, [X] was beginning to develop a stronger relationship with his father. She remarks that [X] continues to refer to his father as ‘[first name omitted]’, which she perceives as an indication of the quality of the child’s relationship with Mr Salzer. Ms Clinton states “[X] called him ‘Dad’ after a lovely play and said ‘good-bye Dad’”. She informs “[X] said ‘I want to call him Dad’”. Ms Clinton stresses “then Dad left” with reference to
Mr Salzer’s departure for Switzerland. She remarks “[X] loves Mr Salzer – he says ‘I love [first name omitted] – he’s my family’”. Ms Clinton states that the issue for [X] is that
Mr Salzer has never been a consistent presence in the child’s life and that, consequently, the child’s attitude to his father is “we hang out – he buys me things”. That is, from Ms Clinton’s perspective, [X]’s relationship with his father has not moved beyond that of a playmate – “it’s a light relationship”. She mentions “that’s his [[X]] expectation – he won’t get hurt”. She makes the point “Mr Salzer doesn’t put the effort into making it work” in terms of forming a trusting father/son attachment.
Ms Clinton comments that when Mr Salzer was recently asked to draw a picture of his family at school, Mr Salzer’s was excluded from the drawing…
Ms L concluded her second Report in the following terms (para.8):
Based on Ms Clinton’s information, it would appear that [X]’s relationship with his father remains in the early stages of developing an ongoing emotional attachment to him. It seems that there was progress prior to Mr Salzer’s departure to Switzerland. Given the gaps in the times Mr Salzer has been involved in [X]’s life over the past years, it might become particularly important that he has a more consistent presence in his child’s life over the coming years if their relationship is to have a solid basis established on trust. I urge Mr Salzer to take part in mediation with Ms Clinton to plan for the relationships [X] is to have with each of his parents.
Notwithstanding the significant periods which Mr Salzer has been absent from [X]’s life, which understandably have led to [X]’s Mother, Ms Clinton, questioning his commitment to the parental relationship with [X], Mr Salzer argued that there should be an increase in time that he spends with [X] and that is so essentially because he says that there already exists a bond between Father and son. Indeed, the Father submitted that there should be time ordered which constitutes significant and substantial time as prescribed in s.65DAA of the Act.
The Father also submitted that to a significant degree his relationship has, if not been undermined, at least it has not been promoted, by
Ms Clinton and her family.
For her part, Ms Clinton noted that the Father has never spent any time with the child without the Mother being present and certainly never regularly spent any more than a few hours at any one time with [X]. She noted too that the Orders of October 2010 required the Father to enrol in a parenting course at Marymead, but there is no evidence of the Father ever having attempted doing so.
Summarily stated, Ms Clinton submitted that Mr Salzer has failed to take the responsibilities of parenthood seriously by (a) not enrolling in either a parenting course or an attachment program, (b) deciding to travel overseas for five months and not contemplating what impact his absence would have upon the child, (c) not attending on Ms L on February 2011 and not making any alternative arrangements, and (d) not leaving his solicitor with any relevant instructions in his absence. In these circumstances Ms Clinton submitted that the Father has failed to take into account the feedback provided by Ms L in both of her reports to the Court. She also noted that the Father provided only
9 days notice that he would be overseas ‘for a couple of months’ but which, in fact, turned into five months. It has previously been noted that Mr Salzer had provided [X] with a computer and sought that he use it to ‘Skype’ between Father and son at Christmas 2010, and that, when Ms Clinton did not permit this to occur, she was criticised.
I also note from Ms L’s first short report (at p.3) that [X]’s preference is for things to stay as they are. In her second report (at para.5), written without any input from Mr Salzer because of his non-attendance, Ms L recorded Ms Clinton noting, with obvious angst and regret, that [X] continues to call his Father “[first name omitted]”, although after one ‘lovely play’, [X] did refer to his Father as “Dad”. That said, it was also noted that [X]’s relationship with his Father remained “light” and that it has not developed past that of a ‘play-mate’.
Conclusion
For my part, the biggest difficulty in ordering substantial and significant time to be spent between [X] and his Father is the somewhat cavalier attitude that Mr Salzer has sometimes taken to spending time with his son. Certainly the extended absence in Switzerland to undertake a skiing course clearly put his interests ahead of the best interests of [X]. To state the obvious, parenting is not a part-time occupation.
Against such background, in my view, the orders sought by
Ms Clinton, which provide for a gradual increase in the time that [X] spends with his Father, are more in keeping with the basic principles of the Act and the cases to which I have referred. The Mother’s orders, in my view, would facilitate the re-establishment and re-building of time and the quality of the relationship between Father and son in a way that is appropriate in the circumstances. Certainly, in the light of the facts of the case and the periods of extended absence of Mr Salzer from [X]’s life, such matters do not exhibit a willingness and ability that could be said to promote his relationship with [X] nor does it reflect well upon his attitude to [X] and the responsibilities of parenthood.
In the brief circumstances that I have outlined the Orders as sought by Ms Clinton are, in my view, in [X]’s best interest.[7] This must include an order for sole parental responsibility in favour of Ms Clinton. This is also to confirm that, in my view, the presumption in s.61DA of the Act, should not apply in the circumstances of this case. It is not in [X]’s best interests.
[7] Cf. s.60CA.
Unless and until there is further relevant evidence put before the Court, it is impossible for the Court to deal with any of the relevant considerations set out in s.60CC of the Act.[8] There is simply, and very unfortunately, no evidence to do so. Indeed, Mr Salzer’s failure to attend upon Ms L on the last appointed occasion in February of this year was, in my view, a very serious breach of his obligations as a parent. Unless and until there is clear demonstration of Mr Salzer accepting his responsibilities it is difficult to envisage any Orders as being appropriate other than those sought by Ms Clinton.
[8] See the Full Court’s ready acknowledgment of the often circumscribed nature of hearings, albeit usually in the context of interim hearings, in Goode v Goode (2007) 36 Fam LR 422 at [82].
I make orders as sought by Ms Clinton.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 29 July 2011
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