FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMWORTH & BEASLEY | [2010] FMCAfam 36 |
| FAMILY LAW – Parenting orders – child aged 9 years 6 months – child now a member of a blended family in father’s household – father seeking equally shared time resisted by the mother – relationship with half siblings in both the mother’s household to be considered – wishes of the child – historically poor ability of the parents to communicate constructively – consideration of “meaningful relationship” – consideration and relevance of research material relating to shared parental care where parental conflict is high – best interests of the child. |
| Family Law Act 1975 (Cth), Part VII |
| P v P [2006] FMCAfam 518 Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286 Mazorski & Albright (2007) 37 Fam LR 518; at 526 G & C [2006] FAM CA 994 McCall & Clark [2009] Fam CAFC 92 |
| Applicant: | MR SAMWORTH |
| Respondent: | MS BEASLEY |
| File Number: | NCC 3810 of 2007 |
| Judgment of: | Coakes FM |
| Hearing dates: | 16, 17 & 18 March & 18 May 2009 |
| Date of Last Submission: | 18 May 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 3 March 2010 |
REPRESENTATION
| Solicitor for the Applicant | Ms Hendy |
| Solicitors for the Applicant: | GWM Lawyers |
| Solicitor for the Respondent | Mr K Byrnes |
| Solicitors for the Respondent: | Byrnes & Cox Laywers |
ORDERS
That the Orders made in the Local Court at [P] on 1 September 2006 relating to children are discharged.
The parents have equal shared parental responsibility for the child [Z] born [in] 1999 (“[Z]”).
Each parent is to have sole responsibility for making decisions concerning [Z]’s day to day care, welfare and development whilst she is in his or her care respectively.
That the parents are to consult each other in relation to any long term issue in relation to [Z] and are to make a genuine effort to come to a joint decision about issues concerning her care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a)Her education, both current and future;
(b)Her religious and cultural upbringing;
(c)Her health;
(d)Her name;
(e)Changes to the living arrangements for her that make it significantly more difficult for her to spend time with a parent.
That the mother have sole parental responsibility for the children [X] born [in] 1993 (“[X]”) and [Y] born [in] 1994 (“[Y]”).
That [X] and [Y] live with the mother.
That [X] and [Y] spend time with the father as is arranged between the father and each of them.
That during school terms at the school attended by [Z], [Z] spend equal time with her respective parents and that she live with each of the parents for alternating periods each of one week during the school term commencing at the conclusion of school Monday afternoon and ending at the conclusion of school the following Monday.
That Order 8 above is suspended during school holidays during which time [Z] is to spend one half of…
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- Samworth and Beasley [2010] FMCAfam 36
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- [2010] FMCAfam 36
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CaseChat Overview and Summary
The legal issues before the court included whether the father was more likely to be abusive than the mother, the children's preferences and maturity, and the implications of the parents' relationship on the children. The court needed to weigh these factors under the best interests principle as outlined in the Family Law Act 1975.
The court found that both parents had a history of being abusive towards each other and that this could occur in the presence of the children. The evidence indicated that [Z] desired a 50-50 living arrangement to mitigate the distress of missing the other parent, though she understood the impracticality of such an arrangement due to her mother's opposition. The court recognised [Z]'s maturity and sense of fairness but concluded that her preference alone was not determinative. The court also highlighted the importance of avoiding situations where the parents would need to interact to minimise conflict. Ultimately, the court determined that equal shared parental responsibility was in the children's best interests, with specific arrangements for time-sharing and decision-making responsibilities.
The final orders included equal shared parental responsibility for [Z], with specific arrangements for alternating living periods during school terms and holidays. The mother was granted sole responsibility for [X] and [Y], with provisions for their time with the father. Detailed provisions were made to manage the transition between parents, communication, and dispute resolution mechanisms to ensure the children's welfare and stability.
Orders
Orders of the court
1.
That the Orders made in the Local Court at [P] on 1 September 2006 relating to children are discharged.
2.
The parents have equal shared parental responsibility for the child [Z] born [in] 1999 (“[Z]”).
3.
Each parent is to have sole responsibility for making decisions concerning [Z]’s day to day care, welfare and development whilst she is in his or her care respectively.
4.
That the parents are to consult each other in relation to any long term issue in relation to [Z] and are to make a genuine effort to come to a joint decision about issues concerning her care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a) Her education, both current and future;
(b) Her religious and cultural upbringing;
(c) Her health;
(d) Her name;
(e) Changes to the living arrangements for her that make it significantly more difficult for her to spend time with a parent.
5.
That the mother have sole parental responsibility for the children [X] born [in] 1993 (“[X]”) and [Y] born [in] 1994 (“[Y]”).
6.
That [X] and [Y] live with the mother.
7.
That [X] and [Y] spend time with the father as is arranged between the father and each of them.
8.
That during school terms at the school attended by [Z], [Z] spend equal time with her respective parents and that she live with each of the parents for alternating periods each of one week during the school term commencing at the conclusion of school Monday afternoon and ending at the conclusion of school the following Monday.
9.
That Order 8 above is suspended during school holidays during which time [Z] is to spend one half of each school holiday period with each parent as agreed in writing between the parents not later than one week prior to the commencement of each school holiday period, which commencement day is deemed to occur on the first day of the school holiday period immediately following the last day of the preceding school term, but in the absence of such agreement with the father for the first half of each school holiday period in those holiday periods which commence in an even numbered year, and the second half of such holiday periods with the mother, and with the mother for the first half of each such holiday period which commences in an odd numbered year and with the second half to be with the father.
10.
The periods during which [Z] is living with each parent as referred to above is suspended, in so far as it is necessary or are varied to ensure [Z]:
(a) Live with the father from 12.00noon on Christmas Day until 6.00pm on Boxing Day in the year 2011 and each subsequent odd numbered year;
(b) With the mother from 12.00noon on Christmas Day until 6.00pm on Boxing Day commencing in the year 2010 and each subsequent even numbered year thereafter.
(c) Live with the father on Father’s Day weekend from after school on the Friday until the conclusion of school the following Monday if not otherwise living with the father pursuant to these Orders.
(d) With the mother on Mother’s Day weekend, if [Z] is not otherwise living with the mother for such period and from the conclusion of school on the Friday until the conclusion of school the following Monday.
11.
That each parent is to advise the other as soon as possible in the event of any of the following occurring:
(a) [Z] being seriously injured or falling seriously ill.
(b) [Z] requiring urgent medical treatment from a doctor or ambulance crew;
(c) [Z] being admitted to Hospital.
12.
That each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number and mobile telephone number and within 24 hours of any such change occurring.
13.
Both parents are to encourage and permit [Z] to contact the parent with whom she is not then living and at any other time requested by [Z] with such communication to be either by telephone, email, text message or any other form of written communication.
14.
That each parent is restrained from enrolling [Z] in any school activity to occur outside normal school hours or any extra curricular activity to occur on a weekday or either a Saturday or Sunday without first discussing the proposed activity and possible enrolment with the other parent with a view to reaching an agreement, and not to occur unless so agreed, unless such activity is to occur only when [Z] is living with the parent who proposes such enrolment or activity.
15.
That both parents are to authorise in writing the Principal of the school attended by [Z] from time to time to supply to the other parent copies of school reports, notices relating to pupils at such school, school newsletters, invitations to any sporting or social function, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such school.
16.
Within seven (7) days of the date of these Orders the father is to purchase a Communication Book for use by the parents and to enable them to communicate with each other about the needs and wishes of [Z] and to exchange details of importance relating to matters of her daily care, welfare, education, medical treatment and sporting commitments, such book to travel with [Z] at changeover and in a sealed envelope.
17.
Each parent is restrained from denigrating the other parent in the presence or hearing of [Z] including making rude comments, making insulting comments, swearing at, shouting at and making any obscene gesture and each parent is further restrained from causing or permitting any other person to engage in such behaviour in the presence of [Z].
18.
The parent with whom [Z] has been living for the second half of the school holiday period immediately preceding the commencement of a new school term is to take [Z] to school on the first day of the new school term, in relation to the commencement of Order 8 referred to above and in each new school term, [Z] is to live for the first week with the parent with whom she did not spend the second half of the immediately preceding school holiday period.
19.
The parent with whom [Z] is to live for the first half of any school holiday period is to collect [Z] from her school at the end of the last day of school term.
20.
Implementation of changeovers during school holiday periods is to be effected at Interrelate [P] during the ordinary operating hours of such centre, but if such centre is not open, and implementation is to take place other than at [Z]’s school then such implementation is to occur either at [locations omitted], as the parties shall agree in writing but in default of agreement, [omitted].
21.
Within twenty eight (28) days of the date of these Orders each of the parents is to contact the Manager of Interrelate at [P] to arrange a single interview with the same Family Dispute Counsellor or Consultant but each on separate occasions, and not the mother’s counsellor, to discuss and prepare a written protocol for discussion and exchange of information about any matters relating to the children.
22.
That both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationship Centre or elsewhere or such other consultant as may be agreed between the parents to assist with:
(a) Resolving any dispute between the parents as to the terms or operation of these Orders;
(b) Reaching agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of [Z] or the parents, in the event that any dispute or disagreement arises concerning such changes.
23.
That neither parent is to make an application to the Court for variation of these Orders to take account of the matters specified in Order 21(b) without first having complied with Order 21 in relation to such matters.
24.
That each parent is restrained from changing the child’s place of residence to a place outside a radius of thirty (30) kilometres from the main post office in [P].
25.
That it is determined pursuant to s66M of the Family Law Act 1975 that it is proper for MR SAMWORTH, the step-parent of [X] born [in] 1993 and [Y] born [in] 1994 (“[X] and [Y]”) to have a duty of maintaining his step children [X] and [Y].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The evidence does not enable me to make a finding that the father is more liable than the mother to be abusive. Rather, I find on the evidence that each parent is liable to be, and has been abusive toward the other and that this could well occur in the presence of [Z] or indeed the other children. This can be avoided if the opportunity of the parents being together in the presence of [Z] is limited or eliminated whenever possible.(3) Additional considerations are: a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; The father deposed to [Z] telling him that she would like to live one week with him and one week with mum. I accept the father’s evidence in that respect. The mother was asked in cross examination whether [Z] had told her that she would like to spend an equal amount of time with her father. The mother avoided answering the question and said:“Not really, no. No, [Z] sort of – [Z] said she wants to spend more time with her Dad but [Z] has also said that she wants that time to be with her Dad”. It is clear from Dr Greenfield’s interview with [Z] that she would like to live week about with each of her parents. I found it interesting that [Z] volunteered to Dr Greenfield that her mother had explained to her why alternate weeks would not work[24]. Dr Greenfield commented that even though [Z] wanted to live half time with each parent, she was persuaded by her mothers reasoning but went on to volunteer that if change over took place at school then the parents would not have to speak with one another and therefore not have the opportunity to argue.[24] Paragraph 33 of the Family Report These statements by [Z] to Dr Greenfield were not the subject of any challenge as to there accuracy. I find the most likely explanation for [Z] being persuaded by her mothers reasoning is that she knows her mother does not support a week about arrangement and does not wish to tell her mother of her preference for fear of hurting her feelings. This is consistent with Dr Greenfields conclusion that [Z] worries about both her parents[25].[25] Paragraph 38 of the Family Report Whilst [Z] told Dr Greenfield she felt “50-50” would be good because at school she cries because she misses her dad, there is other evidence before me she cries sometimes when she is with her father and misses her mother. This is perhaps not surprising in all the circumstances. I find that I am not able to ignore [Z]’s wishes and the reasons for those wishes but ultimately, it is not determinative by itself. Equally, I am not able to ignore Dr Greenfield’s observation that [Z] displayed a strong sense of fairness when she elected to spend half the Christmas holidays with her father rather than attending [R] despite her father’s attempts to persuade her to attend[26]. It seems to me that I can conclude quite safely that fairness weighs heavily on [Z]’s mind in so far as her parents are concerned and she is sufficiently mature to recognise this adult concept.b) the nature of the relationship of the child with: [26] Paragraph 66 of the Family Report(i)each of the child's parents; and