SEARS & ABBOTT
[2011] FMCAfam 813
•9 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEARS & ABBOTT | [2011] FMCAfam 813 |
| FAMILY LAW – Parenting orders – specific issues. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60DA, 61DA, 65DAA, 69ZN |
| AMS and AIF (1999) 24 FamLR 756 Goode v Goode (2007) 36 FamLR 422 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall and Clark [2009] FamCAFC 92; (2009) FLC 93-405 G & C [2006] FamCA 994 |
| Applicant: | MS SEARS |
| Respondent: | MR ABBOTT |
| File Number: | NCC 1771 of 2008 |
| Judgment of: | Foster FM |
| Hearing dates: | 21 & 22 July 2011 |
| Date of Last Submission: | 22 July 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 9 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carl Boyd |
| Solicitors for the Applicant: | O’Hearn & Bilinsky |
| Counsel for the Respondent: | Mr Michael Weightman |
| Solicitors for the Respondent: | Katie Smith Solicitor |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the child [X] born [in] 2005.
The child, [X], live with the mother.
The child, [X] spend time with the father as follows:
(a)During school terms from after school Friday until before school Monday on alternate weekends and from after school Mondays to before school Tuesdays on the Monday immediately following the weekend the child spends with the mother
(i)The alternate weekend regime shall operate on the basis that the parent having the care of the child in the latter half of the preceding holidays shall commence the weekends on the 2nd weekend of the following school term.
(b)During the non-Christmas school holidays for the 1st half of the holidays starting in odd numbered years, and the 2nd half of the holidays in the even numbered years, with the school holidays deemed to commence at 3.00 pm (cessation of school) on the last day of term and to conclude at 9.00 am (commencement of school) on the 1st day of the school term on which the child is to attend school.
(c)During the Christmas school holidays.
(i)
In 2011 from 3.00 pm on 23 December until 3.00 pm on Thursday December, from 3.00 pm on 6 January 2012 until 3.00 pm on 13 January, 2012, and from 3.00 pm on
20 January until 3.00 pm on 27 January 2012.
(ii)In 2012 from 3.00 pm on the last day of term until 3.00 pm 7 days later, and from 3.00 pm on the 14th day of the holidays until 3.00 pm on the 28th day of the holidays.
(iii)
In 2013 and all Christmas holidays thereafter, for the
1st half of the holidays starting in odd-numbered years, and the 2nd half of the holidays starting in even numbered years.
In addition to the above orders, the following orders for the care of the child shall apply:
(a)The parent not having the care of the child on 25 December shall have the child in his care from 9.00 am on 26 December until 11.00 am on 27 December.
(b)The child shall spend the Father's Day weekend with the father, and the Mother's Day weekend with the mother.
(c)
The child shall spend from 9.00 am on Easter Saturday until
5.00 pm on Easter Sunday in each year with the mother, should the child not otherwise be with the mother on those days provided always that if the said period falls on a time that the child is otherwise to be with the father then the father shall at his election have the child on either the preceding or subsequent weekend and in this regard he shall give the mother not less than one months notice in writing as to his election.
The operations of orders 2 and 3 above are suspended so far as is necessary to give effect to orders 4.1, 4.2 and 4.3.
Changeovers for the child between the households shall be affected by the parent having the care of the child immediately prior to the changeover arranging the delivery of the child to his school or, outside school hours, to the home of the other.
Neither party physically chastise the child, nor permit any other person to do so.
Neither party had denigrated the other, nor permit any other person to do so, in the presence or hearing of the child.
Each party shall notify the other forthwith in the event of any change of telephone numbers or residential address.
Each party notify the other forthwith in the event of any medical emergency or hospitalisation concerning the child.
Each party shall ensure that the child attends his existing medical general practitioner (Dr. S) for routine medical treatment.
Each party shall ensure that their personal details are recorded on the child's school enrolment, and if a parent changes their details they shall notify the other parent.
Each party shall be at liberty to contact the school or medical practitioner attended by the child for the purpose of obtaining information concerning the child's activities and progress as that parent may reasonably request.
Each party shall notify the other in advance of any important school, social, cultural or sporting event involving or concerning the child, and each parent shall be at liberty to attend such event.
Each party ensure that the child engages with the school counsellor, and is engaged in further psychological intervention as may be recommended by such school counsellor (provided that no future psychological intervention is provided by Ms S or Mr W and Associates).
The parties shall be at liberty to provide to the child's school counsellor and or psychologist consulting with the child a copy of the Family Report of Ms. T released in these proceedings on 2 March 2011.
There be such variations to the above orders as the parties may agree in writing or by text message.
THE COURT NOTES THAT:
The parties acknowledge that the child is presently attending [S] School, and neither party has any present intention of seeking to alter that enrolment.
IT IS NOTED that publication of this judgment under the pseudonym Sears & Abbott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1771 of 2008
| MS SEARS |
Applicant
And
| MR ABBOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the child [X] born [in] 2005. The child [X] is now 5 1/2 years of age.
The applicant mother seeks orders as set out in her amended initiating application filed on 13 December 2010 as further amended in her outline of case document.
The respondent Father seeks orders set out in his amended response filed on 20 January 2011 as amended in his case outline document tendered at the commencement of the trial.
The parties reached a substantial agreement in the following terms:
That the parties have equal shared parental responsibility for [X] born [in] 2005.
That [X] live with the mother.
That [X] spend time with the father as follows.
The alternate weekend regime shall operate on the basis that the parent having the care of the child in the latter half of the preceding holidays shall commence the weekends on the 2nd weekend of the following school term.
During the non-Christmas school holidays for the 1st half of the holidays starting in odd numbered years, and the 2nd half of the holidays in the even numbered years, with the school holidays deemed to commence at 3.00 pm (cessation of school) on the last day of term and to conclude at 9.00 am (commencement of school) on the 1st day of the school term on which the child is to attend school.
During the Christmas school holidays.
In 2011 from 3.00 pm on 23 December until 3.00 pm on Thursday December, from 3.00 pm on 6 January 2012 until 3.00 pm on
13 January, 2012, and from 3.00 pm on 20 January until 3.00 pm on
27 January 2012.
In 2012 from 3.00 pm on the last day of term until 3.00 pm 7 days later, and from 3.00 pm on the 14th day of the holidays until 3.00 pm on the 28th day of the holidays.
In 2013 and all Christmas holidays thereafter, for the 1st half holidays starting in odd-numbered years, and the 2nd half of the holidays starting in even numbered years.
That in addition to the above orders, the following orders for the care of the child shall apply.
That the child shall spend the Father's Day weekend with the father, and the Mother's Day weekend with the mother.
That the operations of orders 2 and 3 above are suspended so far as is necessary to give effect to orders 4.1, 4.2.
That changeovers for the child between the households shall be affected by the parent having the care of the child immediately prior to the changeover arranging the delivery of the child to his school or, outside school hours, to the home of the other.
That neither party physically chastise the child, nor permit any other person to do so.
That neither party denigrate the other, nor permit any other person to do so, in the presence or hearing of the child.
That each party shall notify the other forthwith in the event of any change of telephone numbers or residential address.
That each party notify the other forthwith in the event of any medical emergency or hospitalisation concerning the child.
That each party shall ensure that the child attends his existing medical general practitioner (Dr. S) for routine medical treatment.
That each party shall ensure that their personal details are recorded on the child's school enrolment, and if a parent changes their details they shall notify the other parent.
That each party shall be at liberty to contact the school or medical practitioner attended by the child for the purpose of obtaining information concerning the child's activities and progress as that parent may reasonably request.
That each party shall notify the other in advance of any important school, social, cultural or sporting event involving or concerning the child, and each parent shall be at liberty to attend such event.
That each party ensure that the child engages with the school counsellor, and is engaged in further psychological intervention as may be recommended by such school counsellor (provided that no future psychological intervention is provided by Ms S or Mr W and Associates).
That the parties shall be at liberty to provide to the child's school counsellor and or psychologist consulting with the child a copy of the Family Report of Ms. T released in these proceedings on 2nd March 2011.
That there be such variations to the above orders as the parties may agree in writing or by text message.
Notation.
The parties acknowledge that the child is presently attending [S] School, and neither party has any present intention of seeking to alter that enrolment.
Background
The short background facts of this matter are as follows:
The father was born [in] 1976 and is presently 34 years of age. The mother was born [in] 1985 and is presently 26 years of age.
The parties’ relationship commenced in 2004. The child [X] was born [in] 2005 and the parties commenced to cohabit shortly thereafter. The parties married [in] 2006. On 1 July 2007 the parties separated. The father asserts that separation occurred at some earlier point in time. On 19 August 2008 the parties were divorced.
The mother commenced to reside in a de facto relationship with her present partner Mr S in September 2008. In mid-2009 the father commenced a relationship with his present partner Ms C and her children [A] aged 11, [B] aged 8 and [C] aged 5.
In April 2010 the mother, observed bruising on the child after the child returned from time with the father. The maternal grandmother reported the incident to the Department of Family and Community Services. In July 2010 the mother alleges that she again saw signs of assault on the child following the child’s time with the father.
The mother in July 2010 took the child to see Ms S, psychologist. Ms S made a mandatory report to the Department and at that time the child ceased spending time with the father.
On 11 August 2010 the mother commenced proceedings seeking orders as to sole parental responsibility, that the child live with her and that child spend supervised time with the father. On 5 October 2010 the mother filed a Notice of Abuse.
On 19 October 2010 the father filed a response seeking orders that the child reside with him and spend time with the mother.
On 2 November 2010 interim orders were made by consent that provided for the parties to have joint parental responsibility for the child, for the child to live with the father each weekend from 5.00 pm Friday until 9.00 am Monday commencing on 5 November 2010 and thereafter commencing on 4 February 2011 for the 1st 3 weekends of each calendar month and otherwise one half of school holiday periods. The child was to live with the mother at all other times.
On 13 December 2010 the mother filed an amended application seeking orders that the father's time with the child be varied to alternate weekends and half school holidays subject to the child continuing with ongoing counselling.
On 20 January 2011 the father filed an amended response seeking orders that the child reside with the mother and that the father have time with the child 3 weekends out of 4 and half school holiday periods.
In late January 2011 the child [X] commenced schooling at [S] School.
On 2 March 2011 the Family Report by Ms. T was released.
Discrete Issues
The discrete issues between the parties are as follows.
Firstly in relation to weekends during school term, as to whether as sought by the mother the father's time with the child shall be from after-school Friday until before school Monday on alternate weekends and then from after-school on Mondays until before school on Tuesdays on the Monday immediately following the weekend that the child spends with the mother. The father's proposal is that his alternate weekends be from after-school Friday until before school Wednesday, with no time to be spent between him and the child in the off week.
Secondly whether there should be a specific order that affords each parent time with the child over the Christmas festive period each year, being a period that also incorporates the child's birthday on [date omitted] each year. Otherwise the parties being in agreement that school holidays will be shared as set out above.
Thirdly, whether there should be a specific order providing for the child to have time with the mother over the Easter religious break from 9.00 am on Easter Saturday until 5.00 pm on Easter Sunday in each year notwithstanding the terms of any other orders.
The Family Report
Neither party gave evidence in the proceedings. Both parties relied on their affidavit evidence.
Before the court as Exhibit B was the Family Report by Ms. T released on 2 March 2011. That report detailed the history between the parties as set out above. Many of the issues detailed in the report were resolved by the parties by agreement leaving the discrete issues for determination as referred to above.
The report makes the following observations:
i)“45. The father reports [X] gets on well with the stepmother and stepsiblings and is aware that on occasions there may be some “ganging up" on [X] by the 3 stepsiblings. The father claims he and the stepmother have dealt with this appropriately. The father denies [A] disciplines [X] and reports he will take close notice to ensure this is not happening during play…..
ii)61. [X] reports to have a close relationship with the stepfather and reports to like the stepmother. [X] reports he sometimes “Kinda don't want to go" to spend time in the father's household as the “the kids hurt me." [X] identified [A] as the “the meanest one." [X] claims the boys “kick me" and when asked if he tells the father he said he did. When asked what happens then [X] said “they get sent to their rooms…..”
iii)65 [X] also made complaint that at night he's kept awake as he can hear the stepchildren in the rooms upstairs…..
iv)70. [X] was able to state his clear views regarding future parenting arrangements in that he clearly stated 5 times that he did not want to “go to dads" or that he wanted “to stay with mum." These views however need to be given little weight in regard to [X]'s young age, his new experience of living in a household with other children to manage relationships with, his exposure to the mother's feelings about the father and her concerns for [X] in the father's care and his assessed close and familiar relationship with the father…..
v)72. It would appear that [X] enjoys a close and affectionate relationship with both parties and no concerns are raised in regard to either stepparent’s care of [X]…..
vi)74. It would appear that [X] is experiencing some difficulty learning to manage relationships with his stepsiblings in the father's household. [X] is an only child in the mother's household and prior to the father cohabiting with the stepmother; [X] was an only child in the father's household. Living with older children [X] will be required to share, compete for an adult attention and manage conflicts with the other children. These are all new skills for him. Over time and particularly as [X] has now started formal schooling he will gain such skills in a relatively short period of time…..
vii)75. [X] is assessed as suffering some degree of anxiety in managing living across the 2 households due to the parental conflict. He is aware that the mother does not want him to go to the fathers, that she worries about him and she misses him. Children will often attempt to reject one parent and align with the other in order to alleviate the psychological stress they feel. It would appear from [X]'s comments that he is attempting to reject the father and that his age with a sound relationship with the father he is unable to continue to be rejecting of the father once in the father's company. This behaviour would place [X] on the lower end of the alignment continuum…..”
The family consultant’s recommendations were that [X] lived with the mother and spend time with the father. If the mother is able to be rostered off one weekend a month in her occupation as a [omitted] then [X] should spend each alternate weekend from Friday to Monday and half school holidays and time on special occasions with the father.
The family consultant gave oral evidence and was cross examined by counsel for both parties. In brief her cross-examination revealed sensitivity towards [X]'s age and the historical conflict between the mother and father. The family consultant considered the proposals of both parties in relation to weekend time and overall she considered that the mother's proposal for weekend times with the father from Friday to Monday with an overnight period in the off week would be more appropriate for [X] having regard to his age, his sensitivity to the conflict between the parents and the settling in period needed for him within the father's household. The family consultant also expressed the view that it would be age appropriate for [X] to spend some time with each parent over the Christmas festive period, particularly having regard to the fact that [X]'s birthday is on [date omitted] each year.
The Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Whilst that is the paramount consideration is not the only consideration. In a AMS and AIF (1999) 24 Fam LR 756 His Honour Justice Kirby said:
i)“a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court making the decision, to ignore the legitimate interests and desires of the parents. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides."
Section 60B of the Act outlines the objects and principles underlying Part VII of the act. The objects of Part VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in the children's lives, that the children are protected from psychological or physical harm, that they receive adequate and proper parenting, and that the parents fulfil the duties and meet their parental responsibilities.
In determining what is in a child's best interests of the court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. Section 60DA (2) and (4) provide that this presumption may not apply or maybe rebutted in cases of child abuse and or family violence or when the evidence establishes that it is not in the child's best interests for it to apply. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that it is not in the child's best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents, subject of course again to the considerations of the child's best interests or reasonable practicality.
The Full Court in Goode & Goode (2007) 36 FamLR 422 mandated that this legislative approach must be followed in all parenting cases.
I have had regard to the objects and principles of Part VII of the Act set out in section 60B, the principles for conducting child related proceedings set out in section 69ZN and to the paramountcy of the child's best interest provided for in section 60CA.
I turned to look at the best interests considerations set out in section 60CC.
The primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
In Mazorski v Albright[2007] FamCA 520; (2007) 37 Fam LR 518 Brown J. considered ordinary definitions of the term “meaningful” and observed:
[26] “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.(My emphasis) Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark[2009] FamCAFC 92; (2009) FLC 93-405 the Full Court of the Family Court, at 83,476, accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The Full Court observed at 83,476:
“……Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
In this matter it is clear that the child has a strong and meaningful relationship with both parents and the proposed orders will in an appropriate way nurture and promote that circumstance continuing. The child is of a young age and his present circumstances the preference is for him to have in lieu of the significant block period sought by the father each alternate week shorter periods involving a weekend and then in the following week an overnight from after school to school the next morning.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
Despite some historical issues, this has now been dealt with by the parties in terms of the consent orders agreed to. The child will have ongoing counselling as appropriate. The issues of the child’s developmental needs in terms of his relationship with the mother and the developing relationship with the father have been discussed above, with the court fashioning orders as appropriate.
The relevant additional considerations
Any views expressed by the child
The child [X] is of tender years, still only 5 and a half. As referred to above the Family Consultant observed: “[X] was able to state his clear views regarding future parenting arrangements in that he clearly stated 5 times that he did not want to “go to dads" or that he wanted “to stay with mum." These views however need to be given little weight in regard to [X]'s young age, his new experience of living in a household with other children to manage relationships with, his exposure to the mother's feelings about the father and her concerns for [X] in the father's care and his assessed close and familiar relationship with the father.” and later “[X] is assessed as suffering some degree of anxiety in managing living across the 2 households due to the parental conflict. He is aware that the mother does not want him to go to the fathers, that she worries about him and she misses him. Children will often attempt to reject one parent and align with the other in order to alleviate the psychological stress they feel. It would appear from [X]'s comments that he is attempting to reject the father and that his age with a sound relationship with the father he is unable to continue to be rejecting of the father once in the father's company. This behaviour would place [X] on the lower end of the alignment continuum”.
The court gives the reported wishes of the child little weight in the circumstances.
The nature of the child’s relationships
The child enjoys a good relationship with both parents, their extended family and both step parents. His relationships with his step siblings in the father’s household are at present problematic but developing. The Family Consultant saw it as important to ease the child into the father’s household to allow the proper and timely development of these relationships.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Once again historically there have been issues in this regard. The Family Consultant has made observations as the Mothers vigilance in regard to the child in the father’s household. Again this is a product of the child’s age and the necessary settling period in terms of the child’s attachments and his ability to separate from reflecting in his own behaviour the Mothers hesitation in regard to his relationship with the father and more importantly the ongoing conflict between the parents. Notwithstanding this background the court takes comfort from the strength the child’s relationships across the spectrum.
The likely effect of any changes in the child's circumstances
The child has spent the majority of weekends in the father’s household since the father’s time resumed. Otherwise he has been in the primary care of the mother since birth. The orders to be made take into account the child’s age and reflect the sentiment of the Family Consultant as to what at present is appropriate.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This factor is of no consequence in this matter.
The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This factor is of little import save to note that the mother clearly remains vigilant in relation to the child in the fathers household. That and the issue of continuing conflict between the parents reflects on the child’s own behaviour, as observed by the Family Consultant, placing him in the lower end of the alignment continuum. Both parents need to understand that the child is alert to their conflict and will if it continues suffer psychological harm in the context of either his relationship with the mother or with the father. Both parties risk their relationship with the child if conflict continues.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant
Save for issues as to the child’s age and maturity as referred to above this factor is of little consequence.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parties historically have been conflict but to their credit at the outset of these proceedings the parties reached agreement as to all major issues in relation to the child. The court is satisfied that both parents will in the future demonstrate appropriate attitudes to the child and their responsibilities of parenthood.
Any family violence involving the child or a member of the child’s family
Whilst several incidents raised concerns in the mothers mind as to the fathers behaviour in relation to the child. Explanations have been given and the mother has no ongoing concerns.
The court has also had regard to the provisions of section 60CC (4) and (4A) in so far as they have limited relevance to the discrete issues for determination.
Conclusion
The parties have themselves led the Court down the “statutory pathway”, agreeing as to equal shared responsibility, rejecting equal time and agreeing to the child having substantial and significant time with the father. Thus the discrete issues fall to be determined on the best interest considerations set out in s.60CC.
Having regard to the matters set out above the court prefers the mothers proposal as to weekend time as being more age appropriate particularly in regard to the special circumstances presently existing and identified above in regard to the child [X].
The court prefers the father’s proposal as to the Christmas festive period as being more child focused particularly in view of the child’s age and the interposition of his birthday on Christmas Day.
The mother deposes as her Catholic affiliations and in that event the court will make the order as sought by her in regard to the Easter weekend save for the condition that if it falls on a weekend that the child would otherwise be with the father being in school term or holiday periods the father shall at his election have the preceding or subsequent weekend in substitution therefore.
For these reasons I have made the orders set out at the beginning of this judgment.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 9 August 2011
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