Simpson and Naylor

[2009] FamCA 1176

FAMILY COURT OF AUSTRALIA

SIMPSON & NAYLOR [2009] FamCA 1176

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT: Ms Simpson

RESPONDENT: Mr Naylor

FILE NUMBER: PAC 4235 of 2009

DATE DELIVERED: 17 September 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 17 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Coleman & Greig

COUNSEL FOR THE RESPONDENT: Mr Connor

SOLICITOR FOR THE RESPONDENT: Argyle Lawyers Pty Ltd

Orders

1. That the parents are to have equal shared parental responsibility for the subject children H born … December 2004 and J born … May 2008.

PENDING FURTHER ORDER:

1. That the children are to live with the father from 5pm Friday to 5pm on Sunday each week.

2. That the children are to live with the mother at all other times.

3. That the party to whom the children are to pass pursuant to these orders shall deliver the children to the other party at the commencement of the time that the children are to live with that parent.

4. That these orders shall commence on Friday 18 September 2009.

5. That the children are to spend overnight tonight with the mother and they are to be taken by her to preschool in the morning.

6. That neither party shall consume alcohol to excess whilst in the presence of the children.

7. That both parties be essentially present when the children are in their care.

8. That the matter is stood over to the Judicial Registrar Duty List at 9.30am on 7 December 2009.

9. That the matter be placed in the Child Responsive Program and the parties shall attend appointments as required by the Family Consultant to whom the matter may be allocated and if required make the children available to that Consultant.

10. That the matter be relisted before me by arrangement with my Associate on a date no less than 7 days after the release of the report by the Family Consultant.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4235 of 2009

MS SIMPSON

Applicant

And

MR NAYLOR

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This matter involves the immediate living arrangements for the parties’ two children, those children presently living separately.  The children the subject of the application are H, born in December 2004, and J, born in May 2008.  H, at present, is with his father, and J with the mother.

2. A brief history of this matter is as follows:

   ·    The father was born in 1964;

   ·    the mother was born in 1971;

   ·    the parties commenced cohabitation in early 2003;

   ·    in December 2004, H was born;

   ·    the parties then worked at various times and, from about the beginning of January 2005, H commenced spending time at the L Early Learning Centre;

   ·    in May 2008, J was born; and

   ·    the parties, after an unhappy period, separated but remained living under the one roof in or about May 2009.

3. In July 2009, the mother took the children and went to Melbourne.  At that time there started a series of letters between lawyers who, I add, are in neither case the lawyers presently representing the parties.  Those letters, in my view, lack felicity in their expression.  The letter written first by the mother’s then solicitor speaks of his client not being prepared to allow further contact with the children until such time as orders are made, and then goes on to say what the mother is prepared to allow.

4. There are responses on behalf of the father from McLarens Solicitors, written in what appear to me to be a somewhat more conciliatory fashion but, in any event, the opening shots in the correspondence war are such that the parties clearly were put in a position of conflict.

5. The mother returned to the home in July and found that the father had apparently changed the locks.  As I understand it, he says, the mother says she was not coming back and he did it for security, but I have no direct evidence on that, other than what I gleaned from his affidavit.

6. Two of the major episodes I must examine involve medical practitioners.  The father expresses real concerns as to the children’s state of health.  There is no doubt that the children were seen on or about 1 September by a specialist paediatrician.  There is annexed to the mother’s material produced today, which I will refer to shortly, a report from her, and there is also in the material before me a handwritten document in which she sets out in point form what she considers is necessary.  The father, however, as I understand it, said that following Fathers’ Day, it was necessary for him to retain the children so that their health and welfare could be attended to.

7. He took the children to Dr O on 6 September and again on 13 September, he says as a follow-up.  The episode on 13 September is one that is horrifying.  It does neither of the parties nor their supporters any credit whatsoever.  The fact that it was done in a doctor’s surgery, where a doctor was endeavouring, at the request of at least one party, to assist a child of the marriage in health care, makes it even more reprehensible.  The mother went to the appointment, which she was aware of, and took supporters.  Why I do not know.  On discovering those supporters, the father called for his own supporters.  Why I do not know.

8. However it came about, the parties ended up in conflict in the street.  Police became involved.  Thereafter, the father refused to return the children.  The mother subsequently regained J.  Since that time, they have not been able to work out between themselves any arrangement whereby they might communicate with the children whilst in the care of the other.

9. The other matter that causes me grave concern is that the boys have been separated for a period of time, seeing each other, as I understand it, for the first time today at this court.

The parties’ applications and materials

1. The proceedings were commenced by the mother filing her application on 9 September 2009.  She filed her own affidavit, sworn 9 September.  Subsequently, she filed a further affidavit sworn 16 September.  She filed an affidavit by her mother, the maternal grandmother, sworn 14 September; and an affidavit of Ms E, which effectively annexes only a reference, also sworn 16 September 2009.

2. The father was given permission to file in court this morning a response; an affidavit of the father, sworn today; an affidavit of his sister, S, sworn today;  an affidavit of his sister, C, sworn today;  and, an affidavit of Ms G, sworn today.

3. Much of the affidavit material of the parties’ “supporters”, if I might put it that way, goes to the situation that occurred in the doctor’s surgery.

The law to be applied

1. It is against that background, briefly stated, and having read that material, and having heard further material led in-chief from the father by his counsel, and, thereafter, cross-examination, that I come to consider the law to be applied in this situation.

2. The first of the matters that the Family Law Act 1975 (Cth) (“the Act”) requires me to take into account are the objects and principles of the Act to be found at section 60B. The objects are; ensuring children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

3. The principles are that children have the right to know and be cared for by both parents and the right to spend time on a regular basis and communicate with both parents.

4. Section 60CA tells me that, in making a parenting order, I must regard the interests of the child as the paramount consideration.  Section 60CC tells me the matters that I must take into account in doing so.  The primary considerations are the benefit of the child having a meaningful relationship with the child’s parents, and the need to protect the child from harm.  Whilst not in exactly the same terms, it poses the same balancing exercise as the objects contained in section 60B.

5. There are additional considerations: any views expressed by the child.  The father seems to assert that H has said to him, on occasions, that he wants to stay with him.  It seems to me that I can place little weight on that view.  It seems to me on the father’s affidavit material that there have been inappropriate questions asked by the father.  For example, asking a child in that situation, “Who do you want to stay with?” to my mind is entirely inappropriate.  J is too young to express any view.

6. The nature of the relationship of the child with each of the child’s parents:  Both of the parents assert, as I understand it, that they have been significantly involved in the children’s care to this point.  The mother seems to assert that she was the primary caregiver.  The father seems to assert that he was particularly involved, and that he had an active and ongoing part in the children’s care.

7. The next sub-section is 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.  Under that sub-section, both parents fare very badly.  It seems to me the mother had no difficulty in taking the children away with her, and I can only assume that her solicitor’s letter was written on instructions whereby she purported to lay down the law of what she would permit and when.  The father, since, particularly, H has been in his care, has been absolutely resistant to any suggestion that the child should have any relationship with the mother.  If that were the determining factor in this situation, one could very well lead to the conclusion that both these parents are, under that section, disqualified.

8. The likely effect of any change in the child’s circumstances.  Whatever I do, there will be a change.  However, the first change that I am going to make is to ensure that the children are reunited and remain together.  That change, in my view, must be to the children’s benefit.  I then propose to put in place a regime which will allow the children to spend time with each parent and move between the parents in a manner that should eliminate any real prospect for mischief by either of them as against the other.

9. The practical difficulty of a child spending time with the parents, to my mind, is not great.  Provided I specify how the children are to move between the parents, then I am of the view that that does not present a great difficulty in formulating a regime for the benefit of these children.

10. The capacity of each of the child’s parents, and I would couple that with the attitude to the child and the responsibilities of parenthood, would indicate, to my mind, that the mother in the past has had somewhat more of the care of the child than the father.  That is not an empirical or mathematical calculation.  On reading the material and hearing the cross-examination of the father, it seems the parties both worked, they both made arrangements for child care, but the reading that I have of the material is that the child spent time with each of the parents and with the parents together, but slightly favouring the mother.

11. The maturity and sex and lifestyle of the children:  The only thing I take into account here is the relative youth of both children and, particularly, J.

12. No family violence appears to be asserted by either party.

13. Sub-section (4) of section 60CC deals with the extent to which each parent has failed or fulfilled responsibilities of a parent by particularly encouraging the participation of the other party.  I have said all that I wish to in that regard.

14. Those are the matters, then, that I must take into account as determining what is in a child’s best interests.

15. I then turn to section 61DA, which imposes a presumption of equal shared parental responsibility when making parenting orders.  That presumption may be rebutted - see sub-section (4) - and the note to sub-section (1) makes it clear that the presumption does not apply if family violence is an issue.  When making an interim order, section 61DA(3) says the presumption applies unless not appropriate.  To my mind, whilst acknowledging that these are interim orders, I am not satisfied that this is a case where I should find the presumption is not applicable.

16. Accordingly, I must start with the view that the parties are to have equal shared parental responsibility.  I am not sure that either of the parties appreciates what that means for them.  I will tell them.  It means that neither party has priority or power over the other.  Decisions are not to be made by one and then merely communicated or imposed on the other, as has been done by both of them to date.  Subject to the orders I make, any matter requiring a decision that affects the welfare of these children is to be made by both jointly, collaboratively, and with each of you having an equal standing in relation to those decisions.

17. These are not mere empty words. The principle of equal shared parental responsibility has been inserted into the Act by Parliament. The words themselves create and impose a requirement upon each of you. I suspect that both of you will find this highly uncomfortable and, at times, you may well wish that the order for equal shared parental responsibility had not been made. However, it has, or will be shortly, and you are bound to comply with it.

18. Having indicated I would make an order for equal shared parental responsibility, I then turn to section 65DAA which says:

    If a parenting order provides for equal shared parental responsibility, the court must consider whether the child spending equal time with each parent would be in the best interests of the child and then consider if that is reasonably practical.

    Sub-section (2) says:

    If there is to be an order for equal shared parental responsibility, and there is not an order for equal time, the court must consider the child spending substantial and significant time with each of the parents. 

    In this case, there are; a child rising 5 and a child 16 months.

19. One of those children attends at day care for two mornings, effectively, a week. The other child is, of course, at this stage, so young that that could not be done. I am not told what is to happen with the older child in relation to what I may call formal schooling. He is five in December and I would expect that that might mean that he would start school next year, but there is no evidence before me in respect of that. Mr Connor puts to me that I should arrange, or put in place an arrangement, of equal time, two periods of four days, one to each parent, followed by two periods of three days, that is, one of each parent. That, of course, would be the equal time that is envisaged by the Act as something that I must consider.

20. Having read the material that I have, and heard the evidence that has been presented before me, I have come to the conclusion that the mother was slightly more actively involved in the past than was the father.  In my view, it would be appropriate for the father to spend time with the children for some three nights, and the mother for four nights.  How this is best arranged, to my mind, has to be looked at with some care because there are some days when H will be attending a pre-school commitment and will not be available to either parent for a period from commencement until about 2.15.

21. The mother’s evidence is that she works one day a week.  She assures me that the day upon which she works is entirely within her power to nominate and arrange.  The father tells me that when the children are with him, he would not work.  Both parents are prepared to be bound by an order that they not be under the influence of alcohol at any time when the children are with them.

22. The conclusion I have come to is that the father should have the children with him from 5 pm on Friday until 5 pm on Sunday, and that the children should live with the mother at all other times.  That means, of course, that the two days that the child attends pre-school fall within the time of the mother’s care of the children.  What I intend to do, and this is perhaps unusual, but I will make orders that the children live with each parent, so there is not to be a “live-with” parent and a “time-with” parent, but two “live-with” parents.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:     

Date:              26 November 2009