SEDLAK & VAUGHN

[2019] FCCA 3413

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEDLAK & VAUGHN [2019] FCCA 3413

Catchwords:
FAMILY LAW – Interim parenting – short form reasons.

Legislation:

Family Law Act 1975 (Cth), ss.65DAA, 69ZL

Applicant: MR SEDLAK

Respondent: MS VAUGHN

File Number: PAC 1112 of 2019

Judgment of: Judge Obradovic

Hearing date: 22 November 2019

Date of Last Submission: 22 November 2019

Delivered at: Parramatta

Delivered on: 27 November 2019

REPRESENTATION

Appearing for the Applicant: Ms Smith

Solicitors for the Applicant: Sydney Family Law Specialists

Appearing for the Respondent: Ms Neuhaus

Solicitors for the Respondent: Mahony Family Lawyers

ORDERS

1. That order 3 of the Interim Orders made on 14 May 2019 is discharged.

2. That the child [X], born … 2016, spend time with the applicant father in a fortnightly rotation as follows:

   (a)Until 5 May 2020:

   (i)In     week 1: from 3pm to 6pm on Monday, and from 5pm on Thursday to 5pm on Sunday;

   (ii)In week 2: from 3pm to 6pm on Thursday.

   (b)From 6 May 2020:

   (i)In week 1: from 3pm to 6pm on Monday, and from 5pm on Thursday to 5pm on Sunday;

   (ii)In week 2: from 5pm on Thursday to 6pm on Friday.

   (c)At all other times as agreed to between the parents in writing.

3. The matter is listed for directions at 12 noon on 27 May 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1112 of 2019

MR SEDLAK

Applicant

And

MS VAUGHN

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons made pursuant to s.69ZL Family Law Act 1975 (Cth).

2. The interim parenting application heard before the Court concerned a three year old child of the parties, who pursuant to orders made by consent is living with the respondent and spending time with the applicant.

3. The applicant presses the Court for orders which will see the child spending increasing time with the applicant, such that by early May the proposal would see the child spending five nights per fortnight with the applicant. He also seeks an order for the child to spend further block periods with him of no more than four nights twice each year. The hearing was limited to the issues identified by the applicant and as noted in Orders made on 23 August 2019.

4. The respondent raises with the Court her concerns about the child’s capacity to cope with increased overnight time with the respondent, given her evidence that the child is already struggling to cope spending time away from her as the child’s primary carer. The respondent urges upon the Court not to increase the child’s time with the applicant further, but simply to leave things as they are pursuant to the orders made by consent on 14 May 2019.

5. The respondent also asserts that:

   a)The child returns to her care after spending time with the applicant unkempt, unbathed, with her hair unwashed and unbrushed teeth.

   b)The applicant has been reluctant to accept guidance from professionals in relation to the child’s care and developmental needs.

   c)The applicant failed to respond to the respondent when she raised her concerns.

6. In respect of the allegation that the applicant is somehow neglectful of the child, it is a difficult allegation to make and support in circumstances where the respondent is proposing that the child spend time with the respondent on two afternoons a week as well as each alternate weekend and then to suggest that this is a reason as to why the child should not be spending any more time overnight with the applicant. The applicant in any event denies that he does not meet the child’s basic needs for cleanliness and/or is otherwise neglectful. He says the child is well looked after when she is spending time with him.

7. The respondent’s assertion that the applicant is reluctant to accept guidance from professionals is not supported by the evidence. Exhibit ‘1’ indicates that both parents were open to taking guidance from Dr A in respect of the child’s oral health. 

8. The respondent’s assertion that the applicant failed to respond to her concerns is also contrary to the evidence. The respondent sent an email to the applicant on 8 November 2019 responding to her concerns which were sent via email to the respondent on 22 October 2019. The time the respondent took to answer the email is not unreasonable. Both emails were sent after the matter had been set down for interim hearing and after the parties had been to a further mediation.

9. It is clear that the parents have different parenting styles and that this is causing conflict between them. The applicant’s parenting style appears to be a more permissive and relaxed parenting style, while the respondent’s parenting style appears to be more rigid and inflexible. It appears to the Court that the respondent may not be open to accepting that the applicant is a capable parent. It also appears that some of the matters she raises as concerns in respect of the applicant’s parenting capacity might ultimately turn out to be trivial in nature.

10. This causes difficulties for the child who has to work out at such a young age that there are different rules which apply in her parent’s households. It is not likely that she has the capacity to understand why this may be, indeed the adults in her life might also not have the capacity to understand why they each insist that their style of parenting is better than the other parent’s. To that end, the parents have agreed to attend the Keeping Contact programme, which the Court understands, might assist them in understanding their differences to be better able to co-parent their child.

11. The parents agreed in May 2019 that they should have equal shared parental responsibility for the child, and neither seeks to disturb that order. What the making of an order for equal shared parental responsibility does though, is it triggers the operation of s.65DAA of the Family Law Act 1975. The Court then must consider making orders for equal time, or if not equal time then the Court must consider making orders for significant and substantial time.

12. Both parents’ households are appropriate for the child, and there is nothing to suggest that either of the parents is placing the child at risk of harm whilst the child is in his/her care; lest of all, unacceptable risk of harm. Each of the parents agrees that the child will benefit from having a meaningful relationship with both of her parents.

13. Whilst the child is still of a relatively young age, the legislation does not discriminate in terms of the application of s.65DAA based on age or indeed any other biological factor. There is no evidence in the proceedings as to any particular developmental needs of this child and what might be in her best interest. Therefore, the Court is simply left with the evidence of each of the parents and their opinions as to how the child is coping with spending time with the applicant whilst primarily living with the respondent.

14. There is no evidence of the child’s views or stated wishes. She is, furthermore, only three years old and any weight attached to those wishes would be minimal.

15. By all accounts, the child appears to have a meaningful relationship with both of her parents and she appears to feel loved and cherished by both of them.  The applicant’s proposal sees the child gradually spending more time with him, which would allow for her to become accustomed to time away from the respondent and it would provide her with the benefit of spending time with the paternal family, learning about the applicant’s culture and background and being involved in a more meaningful way in that culture through increased family interactions.

16. The parents have, where possible, now both been involved in making long term decisions for the child. There was a period of time when it appears the respondent made some unilateral decisions in respect of the child’s day care, however, this now does not appear to be an issue. Both parents support the child financially and provide for her needs. There does not appear to be any practical difficulty with the child spending time with the applicant, in line with either parent’s proposal.

17. Of concern to the Court is the respondent’s capacity to separate her own needs from those of the child. The respondent said to the Family Consultant that the child “feels” her emotions and sees when the respondent is upset. The Consultant advised the respondent that it was important to ensure that the child is not placed in a position of meeting the respondent’s needs and that it was important to shield the child from the parental dispute. 

18. A number of red flags appear in respect of what might be a less than a positive attitude by the respondent towards the importance to the child of having a truly meaningful relationship with the applicant. These red flags are raised due to the respondent unilaterally ceasing the child’s time with the applicant, not being able to reach a compromise in respect of the child attending her uncle’s wedding with the applicant, nor facilitating time between the paternal family and child over Christmas in 2018. These matters might well be the subject of some further evidence, and given the limited scope of this interim hearing, these are not matters which the Court makes any findings about. They are simply red flags, which might ultimately change colour or completely disappear.

19. Whilst the Court is of the view that the child’s best interests are served by her time with the applicant increasing to what is presently the case, the Court finds that equal time is not in the child’s best interest. The proposal by the applicant would see the child spending every weekend with the applicant and only one Sunday with the respondent on a fortnightly basis. This is not in the child’s best interest, particularly noting the statutory definition of significant and substantial time. 

20. As such, the Court finds that it is in the child’s best interest for her time with the applicant to increase slowly to four nights per fortnight in a routine which will see her spending time with both of her parents, and not being away from either of her parents for a prolonged period of time. At present, given her age and likely developmental needs, this is in her best interest.

21. The applicant also seeks an order to spend two additional block periods of 4 days with the child once she turns three years of age. There is no evidence as to why these block periods are appropriate, given that the child has not yet commenced school. The applicant does not set out how he proposes to spend such block periods with the child or what the purpose of the block periods is. Such time is not supported by the evidence.

22. For these reasons, orders as set out at the forefront of these reasons will be made.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 27 November 2019