Sherwin & Cantor
[2009] FMCAfam 519
•29 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHERWIN & CANTOR | [2009] FMCAfam 519 |
| FAMILY LAW – Parenting – parental responsibility – who the child is to live with and spend time with. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Firth & Firth (1988) FLC 91-971 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 HR & HJ (2003) FLC 93-162 M & K[2007] FMCAfam 26 Pasio & Pasio (1979) FLC 90-659 Sieling & Sieling (1979) FLC 90-627 |
| Applicant: | MR SHERWIN |
| Respondent: | MS CANTOR |
| File Number: | SYC 7247 of 2007 |
| Judgment of: | Kemp FM |
| Hearing dates: | 18 & 19 May 2009 |
| Date of Last Submission: | 19 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Karras Partners |
| Respondent: | Self-represented |
ORDERS
That the parties are to have equal shared parental responsibility for [X] born in 2006 (“the child”) in consultation with one another with regard to major long term issues;
That the mother is to have the sole responsibility for making the day to day decisions about matters that are not major long term issues concerning the child while he is in her care, and the father is to have the sole responsibility for making the day to day decision about matters that are not major long term issues concerning the child while he is in his care.
That until the child starts school, the child live with the parties as follows:
3.1 For 2 weeks from the date of these orders, the child live with father each week from 9am Sunday until 12pm Monday and from 9am until 5pm Wednesday.
3.2 For 2 weeks following the expiration of order 3.1, the child live with the father from 9am Sunday until 5pm Monday and from 9am Wednesday until 5pm Thursday.
3.3 For 2 weeks following the expiration of order 3.2, the child live with the father from 9am Sunday until 5pm Tuesday and from 9am until 5pm Wednesday.
3.4 Thereafter, 9am Sunday until 5pm Wednesday in week 1 and from 9am Saturday and 5pm Wednesday in week 2, on alternate weeks.
3.5 That the child live with the mother at times he does not live with the father pursuant to orders 3.1-3.4 above.
3.6 .
3.6.1That the child live with the father and mother each alternate Christmas from 10.00am 24 December until 10.00am 26 December with the child to live with the father from 10.00am 24 December 2009.
3.6.2That in the event the mother is in the Sydney Metropolitan Area on 24, 25 or 26 December in the year in which she is to have the child in her sole care on Christmas Day, then the child is to spend time with the father from 6.00pm 25 December or some other period of 24 hours which coincides with the Christmas period as specified.
3.7 That the child live with the father for three blocks of 7 consecutive night periods each year as agreed between the parties, and failing agreement as nominated by the father at least one month in advance in writing.
3.8 That the child live with the mother for three block periods of 7 consecutive nights each year as agreed between the parties, and failing agreement as nominated by the mother at least one month in advance in writing.
3.9 That during the periods described in Orders 3.7 and 3.8 hereof, the arrangements in Orders 3.4 and 3.5 hereof will be suspended.
That, unless otherwise agreed in writing between the parties, the changeover point for each residence period is to be the [R] Police Station, however in the event that the changeover is to occur on a day on which the child is attending preschool or school, then the changeover is to occur at the preschool or school instead.
That upon the child commencing school, the following is to occur:
i)The child is to live with each parent alternating between periods of seven consecutive nights with the changeover to occur at the conclusion of school each Friday afternoon.
ii)The parent with whom the child is not living with is to collect the child at the conclusion of school on Wednesday afternoon and return him to the resident parent at 7.30pm.
Subject to order 8 below, that both parties be restrained from enrolling the child in a pre-school, daycare centre or school without the written consent of the other parent.
That both parties provide a written direction to the child’s treating General Medical Practitioner’s chosen by that party to treat the child in his or her care, to forward copies of any notes or treatment advice/prescription to the other medical practitioner chosen by the other party to the effect that each medical practitioner is fully informed of the child’s treatment regime.
That in respect of the issue concerning the child’s attendance at pre-school/daycare, each party is to nominate three appropriate pre-school/daycare centres so that the other party can attend and investigate those nominations and the parties are then to attend Relationships Australia or a Family Relationships Centre or some other alternative Dispute Resolution provider to assist them reach agreement about the proposed pre-school/daycare centre.
BY CONSENT:
That the child live with the father each Father’s day from 9am to 5pm and with the mother each Mother’s day from 9am to 5pm.
That upon the child commencing school the following is to occur:
(a)That the child is to live with each of the parties for half of all school holiday periods as agreed between the parties, however failing agreement he is to live with the father for the first half of all holidays in odd numbered years and with the father for the second half of all school holidays in even numbered years.
That the non-resident parent is to be able to communicate by telephone with the child each day when he is not in his/her care.
Both parties are to keep the other informed in relation to all aspects of the child’s health, including advising the other party as soon as it is practicable in the event of any medical or other emergency concerning the child, and is to keep the other party fully informed in relation to any medication which has been prescribed for the child.
The parties are to each keep the other informed of the name, address and contact telephone number of any medical practitioner who treats the child or prescribes the medication or a course of treatment for the child, and shall authorise that practitioner to discuss the child’s medical condition, treatment and medications with the other party.
That upon the child attending pre-school/school each parent is to ensure the preschool/school is authorised to forward to each of the parties copies of the school reports and any other information ordinarily sent to parents.
Each of the parties shall keep the other informed of their current place of residence, telephone numbers (including mobile telephone numbers) and email addresses and notify the other forthwith upon any change of details.
That the child spend one night from 12 noon until 12 noon, in the care of the wife and on each of the following religious holidays:
(a)Jewish New Year
(b)Yom Kippur
(c)Passover
(d)Channuka
With the mother to provide the father with not less than one month prior notice in writing of the relevant date.
That each of the parties be restrained from transporting any child in a motor vehicle without using an age appropriate child restraint for each child.
That both parties are hereby restrained from filming the other or arranging for any other person to film the other, on residence changeovers.
THE COURT FURTHER ORDERS
No order as to costs, save leave is granted to the parties to restore the matter on 14 days written notice, to argue that some other order as to costs should be made. If such leave is not exercised within the stipulated time, it will lapse, and this order will stand as a final order.
All outstanding applications (save as to costs) otherwise be dismissed.
All exhibits tendered in these proceedings, be returned at the expiration of 1 calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect the subpoenaed material produced and return it to the owner in 14 days.
The matter be removed from the list of cases awaiting finalisation.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
THE COURT NOTES
In the event that the parties agree the child should attend a pre-school or daycare centre then the parties are to enrol the child in a pre-school or daycare centre with a pre-school curriculum which is non-denominational and within a 15km radius of [D] unless otherwise agreed between the parties.
The definition of major long term issues in accordance with section 4(1) of the Family Law Act 1975 is as follows:
(1)Major long term issues in relation to a child mean issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:-
1. the child’s education (both current and future); and
2. the child’s religious and cultural upbringing; and
3. the child’s health; and
4. the child’s name; and
5. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long term issue in relation to the child, however the decision will involve a major long term issue if, for example, the relationship with a new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
That both parties agree that they will not employ a full time carer for the child while he is their respective care.
IT IS NOTED that publication of this judgment under the pseudonym Sherwin & Cantor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7247 of 2007
| MR SHERWIN |
Applicant
And
| MS CANTOR |
Respondent
REASONS FOR JUDGMENT
Background
By Application filed 18 October 2007 and amended by Minutes of Orders sought at final hearing (being Exhibits A & A2), the applicant father seeks certain final parenting orders in respect of the child of the relationship [X], born in 2006 (“the child”) as follows:-
(1)That the parties are to have equal shared parental responsibility for the child in consultation with one another with regard to major long term issues;
(2)That the mother is to have the sole responsibility for making the day to day decisions about matters that are not major long term issues concerning the child while he is in her care, and the father is to have the sole responsibility for making the day to day decision about matters that are not major long term issues concerning the child while he is in his care.
(3)That until the child starts school the child live with the parties as follows:
3.1 For 2 weeks from the date of these orders, the child live with father each week from 9am Sunday until 12pm Monday and from 9am until 5pm Wednesday.
3.2 For 2 weeks following the expiration of order 3.1, the child live with the father from 9am Sunday until 5pm Monday and from 9am Wednesday until 5pm Thursday.
3.3 For 2 weeks following the expiration of order 3.2, the child live with the father from 9am Sunday until 5pm Tuesday and from 9am until 5pm Wednesday.
3.4 Thereafter, 9am Sunday until 5pm Wednesday in week 1 and from 9am Sunday and 5pm Thursday in week 2, on alternate weeks.
3.5 That the child live with the mother at times he does not live with the father pursuant to orders 3.1-3.4 above.
3.6 .
3.6.1That the child live with the father and mother each alternate Christmas from 10.00am 24 December until 10.00am 26 December with the child to live with the father from 10.00am 24 December 2009.
3.6.2That in the event the mother is in the Sydney Metropolitan Area on 24, 25 or 26 December in the year in which she is to have the child in her sole care on Christmas Day, then the child is to spend time with the father from 6.00pm 25 December or some other period of 24 hours which coincides with the Christmas period as specified.
3.7 That the child live with the father for three blocks of 7 consecutive night periods each year as agreed between the parties, and failing agreement as nominated by the father at least one month in advance in writing.
3.8 That the child live with the mother for three block periods of 7 consecutive nights each year as agreed between the parties, and failing agreement as nominated by the mother at least one month in advance in writing.
3.9 That during the periods described in Order 3.7 and 3.8 hereof, the arrangements in Order 3.4 and 3.5 hereof will be suspended.
3.10 Agreed by consent to in Exhibit 1.
(4)That unless otherwise specified the changeover point for each residence period is to be the [R] Police Station, however in the event that the changeover is to occur on a day on which the child is attending preschool or school, then the changeover is to occur at the preschool or school instead.
(5)That upon the child commencing school, the following is to occur:
1. The child is to live with each parent alternating between periods of seven consecutive nights with the changeover to occur at the conclusion of school each Friday afternoon.
2. The parent with whom the child is not living with is to collect the child at the conclusion of school on Wednesday afternoon and return him to the resident parent at 7.30pm.
3. Agreed by consent in Exhibit 1.
(6)Agreed by consent in Exhibit 1.
(7)Both parties are restrained from enrolling the child in any sporting or extra curricular activities without the consent of the other party.
(8)Agreed by consent in Exhibit 1.
(9)Agreed by consent in Exhibit 1.
(10)Agreed by consent in Exhibit 1.
(11)Agreed by consent in Exhibit 1.
(12)That both parties be restrained from enrolling the child in a preschool, daycare centre or school without the written consent of the other parent.
(13)That each of the parties be restrained from transporting any child in a motor vehicle without using an age appropriate child restraint for each child.
(14)That both parties are hereby restrained from filming the other or arranging for any other person to film the other, on residence changeovers.
(15)NOTATION (A) In the event that the parties agree the child should attend a preschool or daycare centre then the parties are to enrol the child in a preschool or daycare centre with a preschool curriculum which is non-denominational and within a 15km radius of [D] unless otherwise agreed between the parties.
(B) The definition of major long term issues in accordance with Section 4(1) of the Family Law Act 1975 is as follows:
(i)Major long term issues in relation to a child mean issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:-
1. the child’s education (both current and future); and
2. the child’s religious and cultural upbringing; and
3. the child’s health; and
4. the child’s name; and
5. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long term issue in relation to the child, however the decision will involve a major long term issue if, for example, the relationship with a new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The respondent mother in her Response filed 14 February 2008, as amended by her written submission document (Exhibit 1) and also amended orally during the hearing, seeks her own final parenting orders as follows:-
(1)That the mother have sole parental responsibility for the child and the child live with her.
(2)That the child spend time with the father, every Monday from 10am to 5pm, every Wednesday from 10am to 5pm and every second weekend from 10am Saturday morning until 5pm Sunday.
(3)That the child accompany the mother and her family on their annual family holiday over the Christmas and new year period for approximately 2 weeks, which usually takes place from 21 December.
(4)That in the event the child is unwell, when spending time with the father, the father is to take the child to the child’s treating general practitioner Dr G.
(5)That the father be restrained from using a video camera/still cameral to film the mother or anybody with her at all times (especially on changeovers).
(6)That the father pay the mother’s costs of and incidental to these proceedings.
The mother sought in Exhibit 1, in addition, orders that the father would pay half of all the child’s bills being medicals including health insurance, schooling, pre-school and daycare and an order that the child can attend the [Y] Pre-school. The Court informed the mother that the issue of child support was not before it and the Court would not entertain the order concerning [Y] Pre-school bearing in mind that the mother’s proposed minute was handed up in submissions and the Court had ruled on evidentiary matters on the basis that that proposal was not before the Court. The evidence referable to this proposal, was that the mother had not investigated pre-school options and had asserted that position when Ms Boyle of Counsel sought to introduce material referrable to the parties choices of a proposed pre-school during the hearing.
The parties provided a document titled “Agreed Orders”. That document became “Court Exhibit 1” and the Court will make the orders, by consent, in accordance with that document as follows:
(1)That the child live with the father each fathers day from 9am to 5pm and with the mother each mothers day from 9am to 5pm.
(2)That upon the child commencing school the following is to occur
(a)That the child is to live with each of the parties for half of all school holiday periods as agreed between the parties, however failing agreement he is to live with the father for the first half of all holidays in odd numbered years and with the father for the second half of all school holidays in even numbered years.
(3)That the non-resident parent is to be able to communicate by telephone with the child each day when he is not in his/her care.
(4)Both parties are to keep the other informed in relation to all aspects of the child’s health, including advising the other party as soon as it is practicable in the event of any medical or other emergency concerning the child, and is to keep the other party fully informed in relation to any medication which has been prescribed for the child.
(5)The parties are to each keep the other informed of the name, address and contact telephone number of any medical practitioner who treats the child or prescribes the medication or a course of treatment for the child, and shall authorise that practitioner to discuss the child’s medical condition, treatment and medications with the other party.
(6)That upon the child attending pre-school/school each parent is to ensure the preschool/school is authorised to forward to each of the parties copies of the school reports and any other information ordinarily sent to parents.
(7)Each of the parties shall keep the other informed of their current place of residence, telephone numbers (including mobile telephone numbers) and email addresses and notify the other forthwith upon any change of details.
(8)That the child spend one night from 12 noon until 12 noon, in the care of the wife and on each of the following religious holidays:
ii)Jewish New Year
iii)Yom Kippur
iv)Passover
v)Channuka
With the mother to provide the father with not less than one month prior notice in writing of the relevant date.
(9)NOTATION That both parties agree that they will not employ a full time carer for the child while he is their respective care.
On 21 February 2008, Federal Magistrate Baumann made the following orders, excluding procedural orders and notations:-
(1)That the child live with the mother;
(2)That the child live with the father as follows:
(a)Each Monday between 10.00am and 5.00pm.
(b)Each Wednesday between 10.00am and 5.00pm.
(c)Each second Saturday between 10.00am and 5.00pm commencing Saturday 1 March 2008.
(d)Each second Sunday between 10.00am and 5.00pm commencing 24 February 2008.
(e)As may be otherwise agreed.
(3)That changeover shall take place at the Caltex service station [address omitted].
(4)That the parents attend mediation at either Relationships Australia or Jewish Care (whichever service is first able to see the parties).
(5)That the parties each enrol in and complete a Parenting Course.
(6)That the parties each enrol in and complete an anger management course.
(7)That each party shall be and hereby is by injunction restrained from denigrating the other party or a member of his or her family or household to or in the presence of the child.
(8)That the parties maintain a communication book to move with the child between households, and the parties shall use the book to inform each other about the child’s health, medication, food, activities and such matters.
(9)That the parties will ordinarily take the child to Dr G and each is at liberty to speak to Dr G about the child.
(10)Not reproduced here.
(11)Not reproduced here.
(12)NOTATION
(a)The father would like to spend overnight time with [X] as soon as possible so he will seek to argue that after mediation if there is no progression.
(b)That the parties each consent to Orders 5 and 6 without admission.
On 18 June 2008, the Court ordered (by consent) that a family report be prepared, which was ultimately prepared by Dr Julieanne Greenfield.
The report of Dr Greenfield was released to the parties on 16 April 2009 and has become Court Exhibit 2 in the proceedings.
The current interim parenting orders were to the effect that the child would live with the father each Monday, Wednesday and one weekend day between 10am and 5pm. Changeovers were to occur on a street corner between the parties residences, which are relatively close by.
On the hearing, Ms Boyle of Counsel appeared for the father and the mother represented herself.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration; s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The father relied on:-
(a)His Affidavit affirmed 31 March 2009;
The mother relied on:-
(a)Her Affidavit affirmed on 14 February 2008;
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Court 1
Agreed Orders
Court
Court 2
Family Report of Dr Greenfield
16/4/09
Court
A
Document with points 3.3.1 and 3.3.2 proposed by the father
Applicant
A1
Father’s Minute of Order
Applicant
A2
Father’s revised Minute of Order
Applicant
B
Father’s 2 passports
Applicant
C
Child Support Assessment
9/3/09
Applicant
D
School Information Sheet for [K] Learning Centre
Applicant
E
Report of Dr R
19/8/03
Applicant
F
Report of Associate Professor S
22/11/06
Applicant
G
Box, inclusive of labling and 3 sheets of tablets
Applicant
H
Letter of 21 April 2009
21/4/09
Applicant
J
Letter of 29 April 2009
29/4/09
Applicant
1
Minute of Mother’s orders
Respondent
Proposals
The parties seek the various competing orders set out above.
Issues
The essential issues in dispute the subject of determination are:-
a)parental responsibility;
b)who the child is to live with;
c)time to be spent with the child and the practicability of such time.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born in 1971 and is currently 38 years of age.
b)The mother was born in 1972 and is currently 36 years of age.
c)The parties commenced cohabitation in January 2004, married in March 2004 and the child was born in 2006 and is currently aged 2 years and 7 months.
d)The parties separated in March 2007.
e)The father’s occupation is [in the Hospitality Industry].
f)The mother’s occupation is home duties.
g)The father lives at [address omitted], [D] in a separate apartment on the top floor of a home, while his mother occupies the ground floor.
h)The mother lives at [address omitted], [D] in a duplex. Her parents live on the top floor while she lives with the child on the bottom floor.
i)On 18 October 2007, the father commenced these proceedings.
j)The mother does not practice orthodox Judaism but described herself as culturally Jewish. She has adopted a partially kosher household.
k)The father does not practice orthodox Judaism and does not adopt a kosher household.
l)The mother suffers from depression and has a number of anxiety disorders which have been treated though advice from her doctor and medication.
There appear to be a number of disputed facts, as follows:
a)The parties respective involvement in the child’s care when he was an infant. Notwithstanding the mother’s assertions that the father had little involvement, Associate Professor S’s report states that the mother described the father as “relatively supportive”.
b)
The father asserted the mother breast fed for only a few weeks. Associate Professor S’s report indicates that the mother was breast feeding well in November 2006 when the child was
5 weeks old. The mother asserted that she continued breastfeedingfor some 6 months.
c)The father asserted that there had been substantial difficulties on changeovers which was disputed by the mother.
d)The father asserted the mother was consistently late on changeovers, which was denied by the mother.
e)The father asserted the mother travelled in the car without a car restraint for all of the children in the car, it being accepted that the mother did have one car restraint.
f)The father asserted that the mother had taken Valium. The mother denied that she had been prescribed Valium. When proof of the prescription was provided, she then denied that she had utilised Valium. Exhibit G clearly shows Valium prescribed to the mother with a number of tablets removed from the packet. The mother asserted that she did not use those tablets. The prescription shows that Dr S prescribed these tablets. There would appear to be no issue that that prescription was provided under medical advice and the Court was left perplexed as to why the mother would deny her use of a prescription drug at a time when she was suffering from post natal depression.
g)The mother asserted the father had travelled overseas every few months to spend time with prostitutes. This was denied by the father.
Expert evidence
The report of Dr Greenfield was based, as she described, on the material provided by the parties and the interviews conducted.
The family report writer provided the following, by way of background:
a)Although each of the parents is co-located with a grandparent or grandparents, none of the grandparents had taken a significant role in the child’s care.
b)Both parents are Jewish, although both said that they were ‘not religious’. Nonetheless, this provided scope for a dispute about choice of future schools and pre-schools and some aspects of religious observance.
c)Neither parent has full participation in the work force and both are available to devote a great deal of time to the child’s care.
d)Neither of the parents have re-partnered.
e)The father perceived the mother as ‘emotionally unstable’ and ‘emotionally detached’.
f)The father said that there was no co-operation in raising the child and the mother’s attitude to him was ‘hostile’. The parties used a communication book in which the father said he wrote questions, but claimed the mother never answered them. The communication book was not tendered.
g)The mother said that the father presented as ‘a very charming smooth talker’. However, she now perceived him to be ‘very, very selfish’, ‘uncompromising’, ‘unstable’ and ‘irresponsible’.
h)The mother said that there was ‘very little’ communication between the parents. They will speak to each other over the phone to discuss arrangements. The mother viewed the communication book as a mechanism for the father to ‘write all this rubbish in there to impress the lawyers and the court.’
The family report writer provided the following by way of evaluation:
a)The father described the mother as a “wreck with post-natal depression”. He said that he was involved in caring for the child for the first 6-8 weeks so that the mother could sleep. The report writer examined the medical records which indicated that the mother was prescribed a Valium type drug, but the mother denied ever taking Valium. Dr Greenfield observed that those records showed the mother had a long history of anxiety and depression with obsessive behaviour. The mother however says that she has learned to manage her depression with the support of medical advice and medication. The mother’s evidence was that she ceased taking medication while carrying the child, but resumed after birth.
b)The father asserted that he had been told after the child’s birth by the maternal grandmother, of the mother’s accepted history of depression. The mother denied this and said that she had told the father herself prior to the birth of the child.
c)The father asserted that the mother only breast fed the child for a few weeks after the birth, but the mother said that she did so for some 6 months.
d)The father asserted that the mother said that he would never see the child. Further, the father asserted that the mother had said “no pay no play”. The mother denied this. The accepted position appears to be that in the 2 years 7 months of the child’s life, the father has had only 6-7 overnight stays with the child.
e)The father does outdoor activities with the child including attending the zoo, aquarium, an organic restaurant and visiting the Harbour Bridge. The father is also involved in Gymbaroo, playgroup and swimming.
f)The father would wish the child to attend a public school rather than a religious school and expressed concerns about the child attending an orthodox Jewish school or pre-school. The father wanted the child to grow up as a “regular mainstream Australian kid”. The mother’s evidence was that she wished the child to have some Jewish education at pre-school or junior school but at high school to be educated, like her, in a mainstream Australian environment. This appeared to be at least a common point between the parties.
g)Both parties asserted that changeovers had been problematic with the police being called. The mother alleging the father filmed her on his mobile phone/camera and the father alleging the mother was involved in volatile outbursts including hitting him and scratching him. Both parties would prefer changeovers where they do not come into direct contact with one another.
h)While both parties asserted that the child had been injured when with the other parent, each appears comfortable with the child continuing to spend time in the company of the other parent.
i)The mother asserted that the father travelled overseas every few months to spend time with prostitutes. The passport evidence before the Court did not evidence such frequent trips. In fact, his evidence was that he travelled overseas on two trips with the mother in July 2004 and March 2005 and travelled with mutual friends to Thailand in August 2007 and Thailand and Cambodia in August 2008. The father’s evidence being that on those trips, he travelled, shopped, ate, went to discos/bars, the beach and participated in other holiday activities.
j)The mother asserted that the child was disturbed when the father returned from his trips. However, at least one of the father’s trips coincided for a week with the mother’s trip to Hawaii with the child and her family members which involved the child in long airline flights. The mother disputing that this would have had any effect on the child.
k)The mother asserted that the father only attended Gymbaroo and playgroup “to pick up single mothers”. Nevertheless, she acknowledged that the activities that the father engaged in were of benefit to the child.
l)When the family report writer asked the mother what the father could provide the child, she replied “nothing”. The mother suggesting that her own brother and father provided better father figures. It was put to the mother that she was dismissive of the father’s role in the life of the child. The mother disputed this, but the Court clearly finds that she is so dismissive.
m)Whilst the mother wishes the child to attend the preschool at the end of the street, this appears to be based on convenience and on the fact that the child’s cousins attend there. This preschool appears to be Jewish operated. The mother had advised the family consultant that she had not yet inspected it. The child is anticipated to start pre-school in October 2009.
n)Both parties perceive the child as happy, friendly, affectionate, caring and sensitive with a great sense of humour.
o)The child was observed to be healthy and to exude happiness.
p)Dr Greenfield observed the child’s room in the mother’s home as being somewhat sparse and not oriented towards his needs. The mother indicated that since that observation, she has purchased a king size single bed with a brightly coloured Elmo bedspread and has arranged for a built in wardrobe to be installed. Dr Greenfield acknowledged that her observations were in effect a “snapshot in time”.
q)Dr Greenfield observed the child’s room in the father’s household as being more oriented towards the child’s needs, as it was decorated with colourful murals and contained other children’s furniture and equipment.
r)Dr Greenfield observed the father to be empathic with the child and respectful of the child’s wants. The Doctor was impressed with the father’s interaction with the child in that his approach encouraged the child’s mastery of things, his confidence and emerging independence. The father had a vegetable garden, cat, goldfish and an aviary. The mother asserted that the aquarium and birds in the aviary were hers and she was also considering obtaining a pet.
s)Dr Greenfield stated that the mother’s social phobias have to some extent meant that she has been overly close and reliant on her family. The mother’s evidence was that she had paid some $263,938.00 to her parents to effectively live for free in the duplex at [address omitted]. The mother also in submissions asserted that the child had slept with her since birth and continued to sleep with her. This submission seemed at odds with the statement concerning the acquisition of the child’s bed and seemed more in line with the expert’s observation of the cot in the child’s bedroom.
t)The doctor commented that the mother presented as confident and outspoken. The Court observed that she was not phased in the conduct of the proceedings, notwithstanding that the father was represented by Counsel.
u)The mother’s family provided extended support for the child.
v)The difficulties observed by the mother concerning the child’s behaviour after spending time with the father were explained by Dr Greenfield as being common for young children to express when transitioning between different households. If the number of transitions were reduced, this difficulty, potentially may also be minimised.
w)Dr Greenfield also comments that it is important for the mother to maintain her optimal mental health position. Any reactivation of her depression may in turn impact on the child.
Dr Greenfield makes the following recommendations in her report:-
a)That the parents have shared parental responsibility for the child.
b)That there are protocols in the orders for the parents to make joint parenting decisions.
c)That the child lives in an equal shared care arrangement with each of the parents, with set days of block time with each parent.
d)That in the absence of agreement between the parents, the child spends Sunday morning to Wednesday morning with the father every second week and from Sunday morning until Thursday morning every other week; and
e)That he spends Wednesday morning until Sunday morning with the mother every second week, and Thursday morning to every Sunday morning every other week. (i.e. alternating three and four nights with each of the parents every week, with Wednesday being the variable day).
f)That the parents do not come into direct contact with one another at handover and that the maternal grandparents do the handovers for the mother whenever possible.
g)That when he goes to pre-school and school the child spends half of school holidays with each parent, excluding the long summer vacation in which he spends week-about with each parent.
h)That there is provision in the orders for special days with each parent.
The Court has quoted extensively from the family report writer’s report as set out above. The family report writer was orally examined and her evidence was entirely consistent with the terms of her written report. Her oral evidence was to the following effect:-
a)That an equality of time was in the best interests of the child as it maximised the opportunities for both the father and the mother to focus on their complementary strengths. The father focusing on outside activities including playgroup, Gymbaroo and swimming and the mother concentrating on inside activities including the focus on her extended family unit.
b)The father was very child focused and appeared to have a strong and loving relationship with the child.
c)That the child needed much more frequent time with the father including overnight time.
d)That whilst her report was a snapshot in time only, the mother did not appear in the organisation of her life to be as child focused as the father. Further, without any criticism of the mother, Dr Greenfield commented that with her long history of anxiety and depression, she would be utilising a lot of mental energy to maintain her own mental state and stability. This would have impacted on her parental capacity. The equality of time provided for in her recommendation was to provide a balance for the mother.
e)That the father’s original application seeking 8 nights a fortnight tipped the balance as against the mother and in the case of these parents, it was important to have an equality in their time with the child.
f)That in respect of the choice of a preschool/daycare and its focus on the Jewish religion or not, there was insufficient material for her to make a recommendation. She adopted the position that one of the counselling organisations (and the parties agreed on Relationships Australia) would be able to assist the parties. This was particularly the case given the cultural nature of the parties religious preferences.
g)That a staged approach over approximately 6 weeks should be adopted to phase in the child spending overnight time with the father to the level recommended by her.
The mother sought to attack some of the matters in the family report. In particular, she identified the following:
a)Dr Greenfield did not mention the father’s 11 year old daughter from another relationship. Dr Greenfield explained that she did not regard this as relevant given the limited time the father exercised with his daughter and the potential impact of that on the child in these proceedings.
b)Dr Greenfield’s comments concerning the maternal grandparents as not taking a significant role in the child’s care. This was explained by Dr Greenfield as being, to the effect that the grandparents did not usurp the parties primary parenting responsibilities. She acknowledged that the maternal grandparents did play a large role in the child’s life and more importantly were the “lynch pin” for the mother’s and the child’s well being.
c)Dr Greenfield’s comments concerning the set up of the child’s room in her household. The mother submitted that she had informed Dr Greenfield that she was acquiring further pieces of furniture for the child’s bedroom. Dr Greenfield acknowledged that her observations were a snapshot at a particular point in time.
d)The mother was critical of the amount of time that the family consultant had spent in interviewing her with the child compared to that spent with the father and the child. The consultant advised the Court that because the observations she made of the child with the father were so positive she wished to give the mother a further opportunity for her to demonstrate her skills with the child at her home. Unfortunately, this could not be arranged as the mother had sustained an injury. In any event, there is no criticism of the time that the mother spends with the child. The real issue is whether the time that the father spends should be increased from that under the current orders to the much more expanded time sought by him. The mother herself agrees to overnight weekend time and as a result of her revised proposal, mid-week time.
The Court is of the view that the criticisms identified by the mother, even if accepted (and the Court does not accept them) do not in any event, in any material way, invalidate the recommendations of the family report writer.
The Court accepts and gives significant weight to the expert’s recommendations. The Court has had regard to the general observations set out by the Full Court of the Family Court in Hall & Hall (1979) FLC 90-713 at p. 78,819 to 78,820.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
As the Full Court in Goode & Goode [2006] FamCA 1346 states, unless displaced by court order, the parties parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child/ren (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s. 4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
If the issue is not a “major long-term issue” then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).
Parental Responsibility
The Court finds that the presumption will apply in this case, as:
a)There is insufficient relevant evidence to negate the application of the presumption because of the factors referred to in s.61DA(2) of the Act; and
b)there is insufficient relevant evidence to rebut the presumption (as set out in paragraphs 38 to 81 below), as not being in the best interests of the child: s.61DA (4) of the Act
Accordingly, the Court orders that the parties have equal shared parental responsibility for the child, which was in accordance with the recommendation of the family consultant.
Time to spend
The making of an order for equal shared parental responsibility is, however not of itself determinative of the amount of time that a child is to spend with his parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.
If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his parents.
Substantial and significant time is defined in s.65DAA(3) of the Act as:
a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
(iii) the child’s daily routine; and
(iv) occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court cannot order that the parties and the children have a meaningful relationship. In M & K[2007] FMCAfam 26 [at para 44], Altobelli FM quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:
“… courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.
In this regard:
a)The primary consideration referred to in s.60CC(2)(a) is supportive of the position that as much time as possible with both parents is in the child’s best interests. The Court accepts that the child has a meaningful relationship with both parents.
b)The primary consideration referred to in s.60CC(2)(b) is inapplicable on the facts of this case. Whilst the child sustained some injuries as a result of both a swimming accident and a fall from a high chair, none of those would appear to relate to any risk of exposure to abuse, neglect or family violence. The incidences concerning abusive conduct and the father’s allegations that the mother hit and scratched him and reversed her car so that the car’s mirror hit him and the child at changeover and the mother’s allegations that the father pushed her and verbally abused her are likely to be resolved or at least minimized by the Court’s proposed orders concerning the changeover location and the injunctive orders concerning filming referred to below.
Additional considerations
The Court must have regard to the ‘additional considerations’ under s.60CC(3) of the Act, which are set out below:
(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;
Considering the age of the child, the Court simply notes and accepts the views of Dr Greenfield to the effect that given his age and maturation level, his opinions were not sought nor expected.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
Both parties have in Dr Greenfield’s words “invested” in the child. The father has taken the child to a number of outside activities and is very child focused. The mother provides social activities for the child within the circle of the family household. Dr Greenfield saw a balance between these two “investments” which supported an equality of parenting in both responsibility and time.
Both parties had available time given their work commitments and domestic duties to spend an equality of time with the child.
The mother asserted that the father spent lengthy periods of time overseas. An examination of the father’s passports being Exhibit B did not support this assertion. The father’s evidence being that if he was to have the shared care arrangement proposed he would not travel overseas in 2009 and would look to accommodating the child on any proposed travel arrangement. The father not having spent any holiday time with the child.
The Court finds that the child has a good relationship with both of his parents.
The Court finds that given the age of the child (2 years 7 months), the risks associated with disrupting his primary attachment with his mother were such that it is necessary in the best interests of the child to manage a transition into the father’s care in stages. This was promoted by Dr Greenfield but her evidence was that such stages could proceed reasonably quickly.
The father after having heard Dr Greenfield’s evidence concerning the need to transition the shared care arrangement modified the orders sought by him so that they reflected the Doctor’s recommendations. The Court accepts that this showed a strong degree of parental responsibility. The mother also amended her proposal to reflect a more frequent time regime for the father but far short of that recommended by Dr Greenfield.
(c) 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;
The father’s initial proposal was for sole parental responsibility. This was discussed by Dr Greenfield in her report. The father altered his position to equal shared parental responsibility which is as recommended by the consultant. The mother continued to assert that she should have sole parental responsibility based on her view that the father was selfish and did not have the child’s best interests in mind. The divergence of view as to the child’s pre-schooling is an example of where the parents may need some assistance in coming to future decisions. Dr Greenfield recommended and the parties accepted Relationships Australia as an appropriate organisation to facilitate productive discussions in that regard.
The father’s evidence was that the mother was consistently late on changeovers. The mother denied this.
The father further deposed to conversations with the mother to the effect that the mother sought payment before agreeing for the father to spend time with the child. The father deposes to the mother saying “no pay, no play” and on another occasion “if you want to see [X], you will have to give me $100.00 for nappies first.” Further, the father deposed that the mother refused to give him information concerning the child’s ultra sound saying “if you pay for the test, I will tell you the result”. The mother denied this conversation saying that the tests did not cost her any money. The husband further deposed to conversations with the mother, wherein he inquired into the child’s health and was not provided with any specific details.
The father asserted that the mother refused to allow the child to spend time with him on Christmas day in 2007 or on 30 December 2007 when he had organised a belated Christmas lunch with members of his family.
Both parties give different versions of the events of 2 November 2007. However, the mother on her own admission said that she had advised the father that the child could spend overnight time with him when she said that she had never intended this to occur. The mother arranging for her sister-in-law to film the father and the mother in what the father alleged was a staged performance with the mother alleging that the child was sick and had been taken outside in the rain while the father played tennis and that the father had hit her. The father asserted that the child was warm and in the company of his friend, Ms S [first name omitted], and denied any hitting of the mother.
The father has also alleged that the child had been provided on changeovers with inadequate clothing and dirty nappies.
The father further alleged that the mother had sworn in the presence of the child. The mother in her oral evidence did not dispute this.
The father deposes to conversations with the mother wherein she accused him of causing the child’s head injury. The mother’s evidence was that this injury had occurred when he had accidentally fallen from a high chair in her care. The allegations made against the father which were clearly not subsequently maintained by the mother impact negatively on her degree of parental responsibility. As did her failure to immediately notify the father of the child’s injury on the day it happened, given that the mother had taken the child to her general practitioner (notwithstanding she had given an “all clear”) that day and acknowledged that it was important for the father to know about the injury.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court accepts the recommendations of Dr Greenfield to the effect that there should be some staging of the overnight time with the father so as to build that time up to the time the subject of her recommendations. The Court accepts and gives significant weight to this recommendation.
(e) 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;
There are no matters relevant to the Court’s consideration with respect to the child under this factor.
(f) 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;
The expert describes the father as managing the child in an age appropriate manner. The evidence suggests that the father is able to provide for the child during the time that he spends with him.
The Court accepts that both parents have the relevant capacity to provide for the child.
(g) 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.
The father deposed that if on any occasion when the child had been in his care, he had observed the child to be distressed, he would have contacted the mother. The father does not dispute that the mother is otherwise a loving parent.
The father’s evidence was to the effect that the mother had only agreed to him spending overnight time with the child when the child had refused to go to her on changeover and she had not had time to argue with the child. The mother was prepared to leave the child with her extended family before offering that opportunity to the father. She said she had been prepared to leave the child with the father overnight only when it was “absolutely necessary” and not when it was otherwise “suitable” from her point of view.
Both parents have involved the police in their parental disputes and exposed the child to observing their interactions at those times. The mother alleged the father constantly called the Police and had the Police telephone number recorded in his mobile phone number speed dial.
The mother did not attend any arranged mediation appointments. She asserted the real reason the father sought to arrange these was simply to obtain the certificate to enable him to proceed to Court. She was entirely dismissive of him genuinely seeking to resolve parenting matters through the mediation process.
The mother did not accept that the father felt that he should go to Queensland shortly after the child was born to give support to “Ms D [first name omitted]” who it was conceded by the mother was a very significant person in the father’s life, someone “he was very lucky to have help raise him”.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It is accepted that both parents have demonstrated appropriate attitudes to the child. However, the mother’s denial of the father’s importance to the child and his role in the child’s life impacts on her exercise of the responsibility of a parent.
(j) any family violence involving the child or a member of the child's family;
Apprehended Violence proceedings commenced by the Police against the father were withdrawn and dismissed in the Local Court of New South Wales at Waverley on 29 February 2008.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
This factor does not apply to this child.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Ms Boyle submitted on behalf of the father that the orders proposed by him were least likely to lead to further proceedings and the Court accepts that submission.
(m) any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance the Court considers relevant.
Matters in ss.60CC(4) & (4A):
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
The father’s evidence was that the mother had not exchanged medical information concerning the child with him despite his requests.
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The mother’s evidence was that the father had paid $14.92 per month child support as a result of his arranging his financial affairs to minimise his taxable income. This was not put to the father in cross-examination.
The Court has before it the latest assessment being Exhibit C, which sees the father paying child support $346.25 per month for the period ending 13 February 2009 to 17 March 2010 and the father’s evidence has been that he has paid his obligations being initially some $12.00 per month increasing to $95.00 per month pursuant to the assessments issued.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5):
(a) how far apart the parents live from each other; and
Both parties live in the same suburb and there appears to be no issue in relation to this factor.
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
When asked about whether there were any positive aspects that the mother could see in the child spending time with the other partner, the mother’s negative response demonstrated limited insight into the role of the father.
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
The father’s evidence was that on 22 April 2009 the child had been admitted to the Sydney Children’s Hospital for several weeks to treat septic arthritis in his knee. The mother asserted that she had spent 80-85% of the time with the child to the father’s 15-20% of such time. The Court prefers the father’s evidence that he attended and provided care on an alternating day and night basis. The father could not recall being telephoned by the mother at around 7pm when it appeared, on the mother’s recollection, he was at a dinner. The father recalled a conversation in the evening when he was told there was little that could be done that night as tests for the child had been ordered. The father’s attendance at the hospital following that is entirely inconsistent with him showing no care as alleged in the “first” conversation with the mother.
(d) the impact that an arrangement of that kind would have on the child; and
The impact of a change, the subject of the proposed court orders, will be potentially minimised by the staging in build up of overnight time as recommended by Dr Greenfield. The Court also notes that the child is viewed as “adaptable” and this too should assist him. However, it is important the mother also acts to assist the child in the transition of care.
(e) such other matters as the Court considers relevant
There do not appear to be any other matters.
Conclusion
The Court accepts that the child has a close relationship with both his parents and is otherwise happy and adaptable. The Court also accepts that he receives benefits from each of his parents.
The Court has it before it a number of disputed factual matters, identified above, which do not largely go to any issue with respect to determining the best interests of the child. Ms Boyle submitted that she would not make a Browne & Dunn (1893) 6 R 67 submission as the mother was unrepresented and to do so would be to effect a degree of unfairness. Nevertheless, in circumstances where the parties direct evidence was clearly in conflict, the Court finds that the father’s evidence was to be preferred. He gave his evidence clearly and precisely and without the need to score points. The mother’s evidence was entirely the opposite in that she provided it in an inflammatory manner and sought to score points on exchange with Counsel and
Dr Greenfield. The mother accused the father of visiting prostitutes in Asia, of throwing her and the child out of the matrimonial home and that his activities with the child were motivated by his own self interest and that he was acting by showing a false favourable position to the family consultant and the Court. The mother did not concede any issue, even when it was appropriate that such a concession should be made. To give but two examples, she refused to accept that the airflights to and from Hawaii in a seven day period would have had an impact on the child. “None whatsoever”, was her answer. She also refused to concede that the father had raised issues concerning the mother driving children without the correct number of child restraints, notwithstanding correspondence shown to her and tendered which clearly supported the father’s version of his repeated expression of such concerns. In any event, the Court’s findings flow to a large extent from the admissions made by the mother. Those admissions were to the effect that she saw no benefit in the father’s relationship with the child and was dismissive of that relationship. The Court accepts the submissions of Ms Boyle that it is extremely important for this child to have equal time with the father so as to balance the mother’s view of the father and to balance the difficulties identified by the doctor involving the mother’s ongoing and accepted depression, notwithstanding its current successful treatment.
The father’s “outside activities” were accepted by the mother as beneficial for the child. Similarly, her “inside the family” activities are of benefit to the child.
The father was child focused and the Court accepts the recommendations of Dr Greenfield that the strength of this relationship will make orders for equal shared time, work. That, however, must occur with the support of the mother. The mother should be aware that ongoing litigation is not in the best interests of the child. The father submits that the mother’s change in position referable to increased time is a cause for some optimism in this regard. The proposed orders, contemplating, as they do, an equal shared time regime should enable a conclusion to the parties litigation for some time.
The orders providing for an equal shared time regime will reduce the number of change overs from that the subject of the mother’s proposal and the Court is of the view that minimising the changeovers would reduce the potential for parental conflict and would otherwise be in the child’s best interests.
The Court proposes however to alter the father’s time in the alternate week (being week 2 as outlined in order 3.4 above) to commence at 9am Saturday rather than 9am Sunday and to conclude at 5pm Wednesday. The Court does this as the mother submitted that for her to engage in social activities outside the home it would be beneficial for her to be able to do so on a Saturday. The father’s proposal saw the mother spending time with the child every Saturday including Saturday night, which the mother argued was unfair.
Other parenting matters
Choice of medical general practitioner
The father’s evidence was that the mother did not agree to him taking to the child to her medical General Practitioner (“GP”), Dr G and refused to let him speak to that doctor about the child. This was denied by the mother. The father says he then took the child to his own GP. The father also expressed concern about his view that the mother’s GP had failed to identify the child having a fractured skull. The Court is of the view that given the proposed share time arrangement and the parties difficulty in communicating, they should be at liberty to have their own GP treat the child when in his or her care. This should be on the basis that both parents instruct their respective GP’s to communicate with each other concerning the child’s medical history.
Change-overs
The Court accepts that there have been substantial difficulties between the parties at the time of changeovers. The father’s evidence of the events of 22 April 2009 being to the effect that the mother stated that she was calling the Police. That event had the mother swearing at the father in the child’s presence, the father telephoning the Police, the mother climbing into the father’s car, punching him and scratching him. A further event on 17 May saw the mother swearing again and the father calling the Police. These matters being disputed by the mother but the Court preferring the father’s version finds on the balance of probability that those events are likely to have occurred.
Changeovers at a Police Station are not ideal for the child long term, particularly after commencing schooling as it would impact on how the child views himself, his family and inter relationships with other children and their families.
Whilst Dr J recommended that the parents not come into direct contact with one another at handover, there was dispute as to how that could be effected through the use of the maternal and paternal grandparents.
Dr Greenfield asserted that the maternal grandparents who were otherwise working were physically more able to effect this than the paternal grandmother. The mother’s own evidence was to the effect that the paternal grandmother was reluctant to assist with the child’s care. There is insufficient evidence before the Court to make a determination relevant to this.
The Court prefers to adopt the father’s proposal of the [R] Police station bearing in mind its location near the waterfront and a park. The Court will provide a proviso as to an alternative location, if agreed in writing by the parties. The mother’s opposition to this was largely based on the number of times she would have to turn right against traffic on a busy road being, [omitted] Road. Adopting the father’s proposal for time, the number of changeovers would be greatly reduced. Further, the Court is of the view that at least until changeovers can occur at a pre-school or school, if they are to occur at or near the police station, there would be a likely reduction in the potential for difficult and abusive behaviour by either parent.
Injunction
The mother seeks an injunction restraining the father from filming her or anyone with her at any time. There is no evidence before the Court of the father filming the mother other than at the time of changeovers.
The father seeks an injunction restraining both parties from enrolling the child in any sporting or extracurricular activities without the consent of the other party. The evidence before the Court is that the father arranged for the child to attend Gymbaroo and swimming. There is no evidence of ongoing difficulties concerning these activities. The mother saw these activities as beneficial to the child and sought some involvement by her in those activities. The proposed sharing of time should enable this to occur.
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court in Sieling & Sieling (1979) FLC 90-627 (at page 78,264).
In the circumstances, the Court will make an order in the terms of that agreed by the father that both parties be restrained from filming the other or arranging for any other person to film the other on changeovers.
The Court will not injunct the parties from enrolling the child in any sporting or extracurricular activities without the consent of the other party.
The parties have each agreed to a restraint from transporting any child in a motor vehicle without using an age appropriate child restraint for each child and the Court will so order.
Pre-Schooling
A decision concerning pre-schooling is necessarily a parenting decision which involves the Court in considering the best interests of the child as paramount.
The Court does not prefer in any way a religious school over a non-religious school. The Courts have always adopted a neutral position with respect to issues of this nature (see Pasio & Pasio (1979) FLC 90-659 and Firth & Firth (1988) FLC 91-971, see also HR & HJ (2003) FLC 93-162 (Ryan FM) cited in argument).
The father tendered an information sheet concerning the [K] Early Learning Centre which espoused orthodox Jewish practices as a guiding philosophy for the pre-school. The pre-school appears to be part of a school environment which sees education in both primary and secondary spheres. The mother did not seek that the child continue religious studies beyond the pre-school years, her own evidence being that she took herself out of a Jewish school at the beginning of high school.
The mother accepted that the pre-school had expended some $450,000.00 for additional security and had armed security guards. The mother submitted that the children’s cousins attended and it did not, to her observation, affect them. The father saw this as an issue of concern for him as to the child’s safety.
The father submitted that the child may face problems concerning playmates from the pre-school if those playmates are, otherwise, orthodox Jews.
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC; Newlands & Newlands (2007) 37 Fam LR 103).
As the Court raised with the parties, the issue of the child’s attendance at preschool came very late in the conduct of the hearing. The Court had ruled on the admissibility of some evidence on the basis that that issue was not before it. The Court is of the view, in accordance with the recommendations of Dr Greenfield, that the parties should otherwise investigate the available preschool options and provide each other with 3 nominations so that each party has the opportunity to investigate the alternatives and then the parties are to seek to resolve that issue by the use of Relationships Australia (as they agreed to that organisation) or if that organisation is otherwise unavailable within the time period required (the child expecting to commence preschool in October 2009) then such other organisation as the parties can agree on.
The Court is of the view, given this issue, that it is appropriate for the parties to be restrained from enrolling the child in any preschool daycare centre or school, without the written consent of the other parent.
Notations
The Court will note the matters that the parties have agreed should be noted or which flow from a definition under the Act.
Costs
Section 117(1) of the Act provides that unless there are justifying circumstances, the usual order is that each party pay his or her own costs. In those circumstances the Court proposes that there be no order, as to costs, save leave is granted to the parties to restore the matter on 14 days written notice to argue that some other order should be made. If such leave is not exercised within that time, it will otherwise lapse.
The Court is satisfied, on balance, that the proposed orders are in the child’s best interests and accordingly, will so order.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Kemp FM
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