SL and JS and Anor
[2007] FMCAfam 537
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SL & JS & ANOR | [2007] FMCAfam 537 |
| FAMILY LAW – Children – parenting order – time spent – equal shared parental responsibility. |
| Family Law Act, 1975 (Cth), ss.60B, 60CC(2)(3)(4) & (4A), 61DA, 65DAA(1) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Federal Magistrates Court Rules, 2001 (Cth), r.8.02(4)(a)-(f) |
| B & B [2007] FMCAfam 82 Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility”, paper delivered at 10th Australian Family Lawyers Conference, 8-10 June 2007 |
| Applicant: | SL |
| First Respondent: | JS |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | BRC 2254 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 5 June 2007 |
| Date of Last Submission: | 5 June 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B.W. Thiele |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the First Respondent: | Mr G.O. Wildie |
| Solicitors for the First Respondent: | Greenhalgh Pickard Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms P. Kirkman-Scroope |
| Solicitors for the Independent Children’s Lawyer: | Rimmer Lawyers |
ORDERS
(i)All previous parenting orders are discharged with effect from 9.00am on 30 July 2007.
(ii)That the Mother and Father have equal shared parental responsibility for the Child and all major long term issues concerning the Child.
(iii)That the Child spend equal time with each of the Mother and Father, and live with the Mother and Father on a week about basis, as follows:
1. from after school on Monday 30 July 2007 to before school the following Monday, with the Mother;
2. from after school on Monday 6 August 2007 to before school the following Monday, with the Father,
and each week thereafter alternating between the Mother and the Father, and provided that:
3. changeover occur at the Child’s school; and
4. when the Child is not at school, changeover occur at 10.00 am at the Contact Centre,
and subject to the Child spending time as follows:
5. with the Father from 9.00 am until 6.00 pm on Father’s Day;
6. with the Mother from 9.00 am until 6.00 pm on Mother’s Day;
7. with the Father from 9.00 am until 6.00 pm on the Father’s birthday;
8. with the Mother from 9.00 am until 6.00 pm on the Mother’s birthday;
9. on the Child’s birthday, with the parent who is not otherwise spending time with the Child from 6.00 pm to 9.00 pm;
10. with the Mother from 9.00 am to 9.00 pm on Christmas Eve, if the Child is not otherwise spending time with the Mother;
11. with the Father from 9.00 am to 9.00 pm on Christmas Day, if the Child is not otherwise spending time with the Father;
12. from 6.00 pm on New Years Eve to 6.00 pm on New Years Day:
a. with the Mother in 2007 and each second year thereafter, if the Child is not otherwise spending time with the Mother;
b. with the Father in 2008 and each second year thereafter, if the Child is not otherwise spending time with the Father.
13. by telephoning the Child at any reasonable time if the Child is not otherwise spending time with the telephoning parent, but not more than twice a day for a total of fifteen minutes on each occasion;
14. at all other time agreed between the parties;
15. that neither party spend time with the Child whilst they are under the influence of alcohol or illicit drugs,
and that in relation to 5-15 above the parent who is to spend time with the Child be responsible for arranging the pick up and return of the Child to the other parent.
(iv)both parties are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing within 48 hours of such change.
(v)that both parties are to authorise the Child’s school and medical and other health practitioners to communicate directly with each party on any matters concerning the Child.
(vi)that the Mother and the Father are to immediately inform the other parent of any medical emergency and serious injury involving the Child.
(vii)that neither party shall denigrate the other to or in the presence of the Child and neither party shall involve that Child in issues in dispute between the parties.
(viii)Under s.65L of the Family Law Act, that compliance with these orders be supervised by a Family Consultant appointed by the Manager Child Dispute Services, Brisbane Registry, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying out of, these orders, until 31 December 2007.
(ix)The Independent Children’s Lawyer be discharged.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2254 of 2007
| SL |
Applicant
And
| JS |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant Mother, SL (“Mother”), seeks parenting orders concerning the Child of her relationship with the Respondent Father, JS (“Father”).
ALS, born in April 2002, is the child of the relationship (“Child”).
The real dispute between these parties is about with which of the Father or Mother the Child will live and the amount of time to be spent with each parent. The Child presently lives with the Father in Belli Park, Queensland. The Mother resides in Maroochy River, Queensland, and has not (or has not in the recent past) spent much significant time with the Child.
Evidence
Documents relied on – Mother
The Mother relies upon the case outline filed on 25 May 2007 and read the following affidavits:
a) the Mother’s Affidavit sworn 24 May 2007 (“Mother’s Affidavit”); and
b) the affidavit of TB sworn 23 May 2007 (“Mother’s Friend’s Affidavit”).
Documents relied on – Father
The Father relies upon the case outline filed on 28 May 2007 and read the following affidavits:
a) the Father’s Affidavit sworn 11 August 2006 (“Father’s First Affidavit”); and
b) the Father’s Affidavit sworn 11 May 2007 (“Father’s Second Affidavit”).
Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) relies upon:
a) the case outline filed 25 May 2007; and
b) the updated Family Report prepared by Sean Peter Moriarty sworn 31 May 2007.
Family Report
A Family Report was prepared by Mr Moriarty (“Family Report Writer”), dated 31 May 2007 and was made available to the parties shortly prior to the hearing.
Background facts
Uncontroversial relevant background facts include the following:
a) Father and Mother met in January 2001 and commenced a relationship soon after in February 2001;
b) the Mother learns she is pregnant in August 2001 and the Mother and the Father commence living together in December 2001;
c) the Child was born in April 2002, and is now 5 years of age;
d) the parties separated for a period of approximately two weeks during May or June 2002;
e) the Mother and Father moved to a number of different homes between 2002 and April 2004;
f) the Mother went to France for six months commencing January 2005 to study;
g) the Child remained with the Father in a cottage on the Father’s parents property while the Mother was in France;
h) the Mother and the Father separated finally in January 2005;
i) the Child has lived with the Father since separation, and spent some time with the Mother; and
j) on 4 April 2007 this Court made orders providing for the Child to spend 4 days a fortnight living with the Mother.
Other relevant facts – residence and care of the child
Living arrangements
Post separation the Child has lived with the Father in a cottage at the back of the Father’s Parents property in Belli Park, Queensland. The cottage has a separate bedroom for the Child which has his own things in it.[1] The close proximity of the cottage to the Father’s Parents house allows the Child to have a close and strong relationship with the Father’s Parents.[2] The Father intends to remain in this accommodation for the foreseeable future.[3]
[1] Father’s Second Affidavit, para. 7.
[2] Father’s Second Affidavit, paras. 8 and 35.
[3] Father’s Second Affidavit, para. 9.
The Mother’s current accommodation is shared with two males in a six bedroom house in which the Mother has the sole use of the ground floor, comprising of three bedrooms, one bathroom and a lounge. The kitchen and laundry areas upstairs are shared with her housemates. The Mother intends to stay in this accommodation for some time.[4]
[4] Mother’s Affidavit, para. 21.
Education
The Child is presently attending pre-school.[5] Both the Mother and the Father are in proximity to this pre-school, the Mother lives approximately fifteen (15) kilometres away and the Father approximately thirty (30) kilometres. The Child would continue to attend the Nambour pre-school while with each of the parents.
[5] Mother’s Affidavit, para. 24; Father’s Second Affidavit, para. 49.
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[6] concerned interim parenting orders. That judgment was, until recently, “the only authoritative guidance on the effect of the changes” in the law relating to relocation wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) effective 1 July 2006.[7] More recently, the Full Court of the Family Court of Australia in Hungerford v Tank[8] said that the failure to follow the steps laid out in Goode was an error of law.
[6] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[7] Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility”, paper delivered at 10th Australian Family Lawyers Conference, 8-10 June 2007, p.10.
[8] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
Therefore, and albeit that it was said in the context of an interim parenting order, the Court adopts what was said by this Court in B & B[9] where the Court said:
[9] [2007] FMCAfam 82 (“B & B”).
The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration: Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].
The framework in which those best interests are to be determined are the factors adumbrated in s.60CC of the Act. The objects and principles contained in s. 60B of the Act provide the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case Goode & Goode [2006] FamCA 1346 at [10].
In Goode & Goode [2006] FamCA 1346 the Full Court was particularly concerned with the effect the amendments introduced by the Family Law (Shared Parental Responsibility) Act 2006 had on the approach that a court should take on, relevantly, an interim application. At [72] their Honours concluded that the amending Act evinced a legislative intent in favour of the substantial involvement of both parent’s in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.
In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(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.”[10]
[10] B & B at paras. 2-5 per Wilson FM.
Issues and Orders Sought
The essential issues in dispute and to be determined are as follows:
a) with whom the Child is to live; and
b) how the Child will spend time with each parent, and whether that time ought be equal, substantial and significant, or otherwise.
The disputed issues are reflected in the nature of the final orders originally sought:
a) For the Mother:
i)that the Child live with the Mother.
ii)that the Mother and Father have equal shared parental responsibility for the Child
iii)that the Father spend time with and communicate with the Child as agreed between the parents and in particular as follows:
1. from after school Friday until before school Monday each alternate weekend, commencing 8 June 2007;
2. from after school Wednesday until before school Thursday each alternate week, commencing 13 June 2007;
3. for one half of each school holiday, being the first half in even years and the second half in odd years;
4. from 9.00 am until 5.00 pm on Father’s Day;
5. on the Child’s birthday as follows:
a.from after school until 6.00 pm on a school day; and
b.from 9.00 am until 1.00 pm on a non-school day;.
6. from 12.00 pm Christmas Day until 3.00 pm Boxing Day; and
7. by telephoning the Child at any reasonable time.
8. At all other times as agreed between the parties.
iv)that the Child is to be returned to the Mother for the following occasions should they fall during times when the Child is in the Father’s care:
1. from 9.00 am until 5.00 pm on Mother’s Day;
2. on the Child’s birthday as follows:
a.from after school until 6.00 pm on a school day; and
b.from 9.00 am until 1.00 pm on a non-school day;
3. from 9.00 am Christmas Eve until 12.00 pm Christmas Day.
v)that the changeover occur at the Child’s school and when the Child is not at school, it is to take place at the Café, Yandina.
vi)both parties are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing within 48 hours of such change.
vii)that the Mother is to authorise the Child’s school and medical practitioners to communicate directly with the Father on any matters concerning the Child.
viii)that the Mother and the Father are to immediately inform the other parent of any medical emergency and serious injury involving the Child.
ix)that neither party shall denigrate the other to or in the presence of the Child and neither party shall involve that Child in issues in dispute between the parties.
x)that the Father refrain from drinking alcohol to excess or using illicit drugs whilst the Child is in his care.
b) For the Father:
i)that the Child live with the Mother and the Father.
ii)that the Mother and the Father have equal parental responsibility for the major long term issues of the Child.
iii)that the parent in whose care the Child is has responsibility for the day-to-day care of the Child.
iv)that the Mother and Father spend time with the Child as agreed between the parties, but failing agreement, as follows:
1. from after school on Monday to before school on Monday the following week, the Mother will spend time with the Child. The father will then spend time with the Child from after school on Monday to before school on Monday the following week. Thereafter alternating each week.
2. that in the event the Mother is not caring for the Child in the week encompassing Christmas Eve, Christmas Day and Boxing Day, the Mother will care for the Child from 10.00 am on Christmas Eve to 5.00 pm on Boxing Day in 2007. The Father will then care for the Child from 10.00 am on Christmas Eve to 5.00 pm on Boxing Day in 2008. Thereafter alternating each year.
3. that the Father will spend time with the Child for the first half of the gazetted school holidays in Queensland in 2007 and that the Mother will spend time with the Child for the second half of the gazetted school holidays in Queensland in 2007. Thereafter alternating each year.
4. should Father’s Day fall on a day when the Child is otherwise not spending time with the Father, then the Child will spend time with the Father on that day from 9.00 am to 5.00 pm.
5. should Mother’s Day fall on a day when the Child is otherwise not spending time with the Mother, then the Child will spend time with the Mother on that day from 9.00 am to 5.00 pm.
6. that if the Child’s birthday falls on a day when the Child is otherwise not spending time with the Father in 2007, then the Child will spend time with the Father on that day from 9.00 to 5.00 pm. Thereafter alternating each year.
v)both parents will facilitate the Child telephoning each of his parents at all reasonable times.
vi)that the Mother and Father:
1. keep the other parent informed at all times of their residential address and telephone number;
2. keep the other parent informed of any medical emergencies involving the Child; and
3. authorise the health care practitioner and school to provide each parent with information regarding the Child.
vii)not to denigrate the other in the presence or hearing of the Child or allow any other person to do so.
Some minor amendments were made by both parties to the initial final orders that each sought – but the essence of the dispute remained the same.
Presumption of equal shared parental responsibility – section 61DA(1)
When the Court makes a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[11] The presumption “is directed to the decision making responsibility of the parents.”[12]
[11] S.61DA, Family Law Act, 1975 (Cth) (“FL Act”).
[12] B & B at para. 16 per Wilson FM.
The application of the presumption invokes the time spent provisions of s.65DAA(1) of the FL Act.
Time Spent
Section 65DAA(1) of the FL Act provides that:
“Equal time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
In order to determine whether equal time with each parent is in the best interests of the Child it is necessary to consider the primary and additional considerations in s.60CC(2)and(3) of the FL Act.
Primary Considerations – section 60CC(2)
Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)(a)
The emphasis here must be on the benefit to the Child, and not the ongoing dispute between the parents:
“a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents”.[13]
[13] PS & OS [2007] FMCAfam 285 at para. 23, per Lucev FM.
Both parents want a meaningful relationship with the Child, and there is no dispute that the Child will benefit from having a meaningful relationship with both parents.
It appears that the Child has:
a) a loving, well established bond with the Father who has been the primary carer in recent years; and
b) a loving, and recently re-established relationship with the Mother.
The Court considers that the benefit to the Child of a meaningful relationship with both parents would be best enhanced by the Child spending substantial and significant time with each parent, and optimally equal time, subject to various considerations discussed further below.
The need to protect the Child – section 60CC(2)(b)
The Mother arrived in Australia from the former French Caribbean colony of Martinique in 1999. She spoke little or no English. She was aged 13. By age 16 she was pregnant and became the Child’s mother. Aged 17, she tried to drown the infant, aged 7 months.
Quite properly it is said that the Court ought to examine this incident in the context of the need to protect the Child. The Mother also did not report, or otherwise deal with, a number of instances of actual or possible abuse of the Child during the Child’s first three years, and that issue must also be considered.
The Court is of the view that the “drowning incident”, as it came to be described, and other abuse incidents referred to above, do not give present rise to a concern about the need to protect the Child.
This is because:
a) the drowning incident occurred more than 4 years ago and has not been repeated;
b) the Mother was only 17 at the time of the drowning incident;
c) the drowning and abuse incidents occurred:
i)before the Mother turned 20; and
ii)principally in circumstances where the evidence indicates that the Mother was in a relationship where the Father exercised a significant degree of control; and
d) the Family Report Writer says that the drowning incident is historical, and unlikely to recur, and further that it is atypical.
The Father’s conduct is also such, it is submitted, to be of concern in relation to the need to protect the Child.
The Father has:
a) a drug addiction, using marijuana daily;
b) an alcohol abuse problem, which periodically manifests itself;
c) perhaps, but not necessarily, because of (a) and (b), a volatile and emotional temperament; and
d) a propensity, perhaps, but again not necessarily, because of (a) and (b), as well as (c), to act improperly, and thus:
i)to drive dangerously under the influence of drugs and/or alcohol, or simply because he is upset about something; and
ii)to act violently, as for example, when he smashed up (or trashed, to use the vernacular) his room in his parent’s house.
Of concern in this context is the evidence of the Family Report Writer that the Father’s emotional volatility is not likely to diminish, and may come to impact upon the Child via the Father’s emotionally volatile decision making process. Further, the Father has not sought out professional assistance for the problems with his temperament, and has actively shunned any possible assistance of this type. He prefers to self-medicate, mostly with marijuana.
It is nevertheless the case that the evidence indicates that:
a) the Father has been the Child’s primary carer, at least in the last two years;
b) the Child has not been exposed to abuse or neglect, nor seemingly suffered any ill effects, whilst living with the Father; and
c) the Child has developed into a bright and delightful 5 year old under the care of the Father, with some assistance from the Father’s parents.
The Court further notes that the Father is also still quite young, and that some of the incidents in relation to which his decision making is criticised occurred when he was much younger. Furthermore, the Father has suffered from the tragic death of his brother.
Off-setting those considerations, at least to some degree, is the Father’s failure to seek professional assistance with respect to issues concerning his temperament (as recommended by a psychiatrist who saw him in 2006).
There is certainly no need to protect the Child from the Mother, or on the available evidence the parents of both Mother and Father. That leaves the Father. The Court has considered all of the evidence, and summarised the essence of it above. Anxiously, and not without a complete absence of doubt, the Court has come to the conclusion that the Child is not in need of protection from the Father. Whatever the Father’s personal demons and disposition he has managed to distance them from the care and protection of the Child, so that the Child has suffered no consequent ill effects. In an effort to ensure that that situation continues the Court will make an order prohibiting the parties being under the influence of drugs or alcohol when the Child spends time with them. That might require some behaviour modification on the Father’s part, and it will be up to him to seek such assistance, professional or otherwise, as is necessary to deal with any issues arising therefrom.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
The Child is currently five years of age. Consequently, on account of the Child’s age no significant weight will be attached to any view expressed by the Child.
The nature of the relationship of the Child with each of the parents – section 60CC(3)(b)(i)
As noted above, the Child has a loving relationship with both parents, a well established bond with the Father, and a recently re-established relationship with the Mother.
The nature of the relationship of the Child with other persons – section 60CC(3)(b)(ii)
The Child appears to have a proper and loving relationship with both sets of grandparents. Naturally, because the Child has lived for some time in close proximity to his paternal grandparents, and, to some extent because they have assisted in caring for him, his relationship with them is closer.
The Child’s relationships with other persons are not of such significance as to warrant detailed consideration, suffice to say that there is no evidence to indicate that the Child’s relationship with any other person is inappropriate.
The willingness and ability of each of the Parents to facilitate and encourage a close and continuing relationship between the Child and other Parent – section 60CC(3)(c)
The evidence is that the Mother will have no difficulty facilitating a close and continuing relationship between the Child and the Father.
The Father however may have a difficulty. The Father clearly has a controlling disposition. The Father did not have anything noticeably positive to say about the Mother. Indeed, the contrary was the case, the Father saying of the Mother that she was “not much of a parent.” It is evident from the Family Report that the Child has become aware of the dislike of the Father for the Mother. However, it does not appear to have resulted in any alienation of the Child from the Mother. Perhaps surprisingly, given that the Child presently lives with the Father and the Father’s criticisms of the Mother of which the Child appears cognisant, the Child in fact appears to be enjoying the greater amount of time spent recently with the Mother.
The Court is not persuaded that an order that the Child spend greater than equal time with the Mother will, of itself, overcome the issue of the Father’s failure to facilitate a close and continuing Mother-Child relationship, or that ongoing criticism by the Father will necessarily affect the Child, especially if the Child spends more time with the Mother than he does presently. It might be that the more appropriate course is to provide for the assistance of a family consultant, a non-denigration order, and such order as to time spent as is appropriate (assuming presently that such order will give the Mother more time spent than she presently has, but not, in any event, greater than equal time).
Likely effect of changes in Child’s circumstances, including separation from parents and others – section 60CC(3)(d)
The effect of a change in the Child’s circumstances if this Court were to make an order in the terms proposed by the Mother is dramatic.
The Child:
a) would live with the Mother not the Father;
b) live apart from the Father who has been the primary care giver in recent years;
c) live apart from the paternal grandparents who have assisted with the Child’s care; and
d) change residences.
There are however beneficial changes:
a) less time spent with a Father who has some difficulties with his temperament (albeit that there is no evidence of these impacting on the Child, save for the Christmas Day incident);
b) more time spent with a Mother who is emotionally stable, and who, on the evidence, is more likely to provide for the Child’s ongoing needs, particularly intellectually and emotionally;
c) more time spent with the maternal grandparents; and
d) greater exposure to the Mother’s family’s French Caribbean culture.
The Court is of the view that the Child is more likely to benefit from spending more time with the Mother than he does presently.
Practical difficulty and expense of Child spending time and communicating with parents and whether that will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis – section 60CC(e)
The parents live in reasonable proximity to each other, about half an hour to an hour by car. No issues of practical difficulty or expense arise on the evidence.
Capacity to provide for the needs of the Child, including emotional and intellectual needs – section 60CC(3)(f)
The Father has, to date, proved capable of providing for the needs of the Child, including the Child’s emotional and intellectual needs. The Court has found above that the Child does not appear to require protection from the Father. The issue here however is about capacity to provide for future needs – development not protection.
The evidence clearly indicates that the Mother is more emotionally stable, and better able to provide for at least the Child’s emotional and intellectual needs.
In Court as a witness the Mother was certainly calmer and appeared more worldly and mature than the Father who is six years her senior. She is better educated, having completed high school despite her pregnancy, and gone on to study at university both in Australia and France.
Overall, and going forward, it seems that the Father’s emotional immaturity (which he demonstrated throughout his oral evidence), lack of personal skills and insight may impact adversely on the Child. This will not, in the Court’s view, be a deliberate outcome knowingly wrought by the Father, but rather the unfortunate by-product of his emotional state. Much of the evidence on this issue is understandably predictive.
The Court notes, again, that the Child has developed, to this point, into a bright and delightful five year old.
This Court finds that, on balance, the Mother will be more capable of meeting the overall emotional and intellectual needs of the Child in the future.
Whether this finding means that the Mother ought spend more time with the Child, and in particular more time than the Father, is a matter which still has to be weighed.
The Court is therefore of the view that both parents can provide for the Child’s general needs, but that in the area of the Child’s emotional and intellectual needs the Mother is better able overall to deal with those particular needs.
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
These issues are discussed elsewhere in these reasons, save that it must be noted that the Father’s attitude to the Child’s French Caribbean cultural background is dismissive. More time spend with the Mother will be sufficient to deal with the Father’s attitude (if it continues).
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Child and the responsibilities of parenthood demonstrated by each parent – section 60CC(3)(i)
The Court considers that the Father has to date exercised the responsibilities of parenthood to a degree greater than the Mother, but that the Mother is capable of properly carrying out those responsibilities during any time that the Child might live with her. This has occurred largely because:
a) the Father has exercised significant control over the Mother, prior to separation;
b) the Mother has chosen to study, both in Australia and in France, which has removed her from the primary care giver role and many of the day to day responsibilities of parenthood.
The Father’s emotional immaturity has not thus far affected his attitude to the Child or the exercise of his parental responsibilities.
Overall, the Court considers that both parents have in the past generally demonstrated an appropriate attitude to the Child and the responsibilities of parenthood, and there is not any indication directly from the Mother or Father that they will not do so in the future. The evidence of the Family Report Writer and the psychiatrist casts some doubt on the prospect of the Father doing so in the future, but again that evidence is predictive, and the 2006 Christmas Day incident (where the Father did not leave the Child with the Mother because of the presence of the Mother’s parents, which the Father explained was based on his interpretation of the orders in place) apart, not based on actual events involving the Child and the Father.
Family Violence – section 60CC(3)(j) and (k)
This issue is discussed in paras 25-35 above.
Order less likely to lead to further proceedings – section 60CC(3)(1)
It is difficult to assess this consideration. The orders the Court will make are those it considers less likely to lead to further proceedings.
Extent of fulfilment of parenting responsibilities – section 60CC(4) and (4A)
In the context of parents who have separated the Court is required to consider the extent to which the parents have fulfilled their various responsibilities as parents since separation.
In this case many of the relevant issues are discussed above, but in short, it is the Court’s view that both parents have generally appropriately fulfilled their parental responsibilities post-separation, and in the case of the Mother to the extent that her more limited time spent with the Child, and absence overseas on study, has permitted.
Consideration
As indicated above the presumption of equal shared parental responsibility applies in this case. Nothing was put to the contrary, and the Court will order equal shared parental shared responsibility in this case.
Where a parenting order provides for equal shared parenting responsibility the Court must consider whether the Child spends equal time with each of the parents as that is presumed to be in the best interests of the Child: s.65DAA(1)(a), FL Act. That is qualified by a requirement that the Court consider whether the Child spending equal time with each of the parents is reasonably practicable: s.65DAA(1)(b).
In this case it is reasonably practicable for the Child to spend equal time with each parent.
The Court must however determine, having regard to all of the primary and other considerations under s.60CC(2),(3),(4)(4A) of the FL Act (and the underlying objects in s.60B) whether in this case it is in the best interests of the Child that the Child spend equal time with each parent, or whether some other arrangement is appropriate.
In circumstances where:
a) the Child is able to have a meaningful relationship with both parents;
b) there is in the Court’s view no need to protect the Child;
c) the Father, who has been the primary carer, is less than willing to facilitate the relationship with the Mother;
d) any significant change in the Child’s circumstances is likely to impact on the Child, particularly in his relationship with the Father and Father’s parents, who have to date been principally responsible for the Child’s care;
e) the Father has well provided for the Child’s needs in the past, but there is doubt as to his capacity to do so in the future in respect of the Child’s emotional and intellectual needs;
f) the Father may not place an appropriate degree of importance on the Child’s French Caribbean heritage and culture; and
g) both parents can and have properly exercised parental responsibility, but the Father has done so to a greater degree,
the Court has come to the view that it is appropriate for the Child to spend more time with the Mother. However, balancing all of the considerations, and the circumstances, the Court is not persuaded that this is a case where equal time for each parent is inappropriate.
The Child has been well cared for by the Father to date, and in that context the very significant change to time spent sought by the Mother, and latterly recommended by the Family Report Writer, is in the Court’s view inappropriate, notwithstanding the doubts, as yet unproven, about the Father’s future capacity to care for the Child, and his reluctance to facilitate an ongoing relationship between Child and Mother. To some extent the latter is likely to be overcome by the additional time the Child spends with the Mother.
Taking into account all of these matters, and the underlying presumption in favour of equal time, the Court has concluded that the Child should spend equal time with each parent and live with each parent week about.
The Court is not persuaded that the Child should spend a period of time exclusively with the Mother at the commencement of any orders (the so-called “safety valve” option). Provision for a Family Consultant should suffice. Further, the Father will be well aware, and no doubt advised, of the possible consequences of any future foolish behaviour by him.
Orders
The Court makes orders as set out in the Orders immediately prior to these Reasons for Judgment, and considers that those orders are in the best interests of the Child.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: J. Semler
Date: 26 July 2007
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