Swann and Burt

[2009] FamCA 479

FAMILY COURT OF AUSTRALIA

SWANN & BURT [2009] FamCA 479

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Mr Swann

RESPONDENT: Ms Burt

FILE NUMBER: PAC 6234 of 2007

DATE DELIVERED: 27 April 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 15 April 2009

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

Orders

1. That all existing orders in relation to the child …, born … August 2002 (‘the child’) are discharged as from 7 May 2009.

2. That the child live with the mother at all times other than the periods prescribed in order 3, during which she will live with the father.

3. That the child live with the father as follows:

   3.1from the conclusion of school on Thursday until the commencement of school on Tuesday in each alternate week during school term time, commencing on 7 May 2009

   3.2for two additional weekends per school term, from the conclusion of school on Friday until 6:00pm on Sunday on dates to be nominated by the father in writing so as to provide no less than 14 days notice to the mother

   3.3for a period equal to one half plus two days and nights of each of the short school holidays

   3.4for a period equal to one half plus five days and nights of each of the Christmas school holidays

   3.5from 8:00am until 6:00pm on each Fathers Day

   3.6from 2:30pm on Christmas Day until 6:00pm on Boxing Day each year.

4. That the child live with the mother during the following periods:

   4.1from 8:00am until 6:00pm on each Mothers Day

   4.2from 6:00pm on Christmas Eve until 2:30pm on Christmas Day in each year.

5. 5.1     That the parent in whose care the child is residing from time to time shall organise her transport to and from school

   5.2That the parent whose residence period is to commence shall arrange for the child to be collected and the other parent shall cause her to be collected at the conclusion of that period.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6234  of 2007

MR SWANN

Applicant

And

MS BURT

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. On 15 April 2009 I heard the final instalment of litigation between Mr Swann (“the father”) and Ms Burt (“the mother”) over their daughter, who was born in August 2002 and is now 6 years old.  Early in 2008 I was required to determine which school the child should attend.  It was necessary for me to make this decision as the child’s parents preferred to prevent her from commencing her formal education, rather than taking a position of compromise and cooperation with each other.  I delivered written reasons for judgment on 7 March 2008.  Those reasons should be read in conjunction with this judgment.

2. Pursuant to orders made by consent on 7 February 2005 the child spent approximately equal time with each of her parents.  On 7 March 2008 I made orders which provided that she live with her mother from Wednesday afternoon until 12:00noon on Sunday in each alternate week and from Wednesday afternoon until 6:00pm on Saturday in each other week.  The orders provided that the child live with her father at all other times during school terms.  The child thus continued to spend equal time with each parent. 

3. Pursuant to an offer made by the father during the course of that interim hearing, I ordered that he pay $80 per fortnight to the mother to assist her with travel expenses.  The orders of 7 March 2008 obliged her to transport the child to school each morning, which meant that she had to travel from her home at P to the father’s home at R on three mornings per week.

4. The father has not complied with the order that he contribute $80 per fortnight to the cost of the mother’s travel.  I accept that he suffered a knee injury which interrupted his work routine, shortly after the interim orders were made on 17 March 2008.  The fact remains, however, that the entire burden of this travel has fallen to the mother with no financial assistance from the father.

The Proposals of the Parties

1. The father proposed that there be no change to the current arrangements and that the existing interim orders become final.  The mother proposed that there be final orders in accordance with the recommendations of the Family Consultant, Dr H. 

2. On 23 December 2008 Dr H prepared a Family Report.  He recommended that the child live with her father from Thursday afternoon until Tuesday morning in each alternate week and spend the remaining school term time with her mother.  The result would be a reduction in time with her father from seven to five nights per fortnight. 

Approach To These Proceedings

1. The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act.  Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory conferral of joint parental responsibility.

2. If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence:  sections 61DA(2) and 61DA(3).  This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child:  section 61DA(4)

3. When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable.  If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable:  section 65DA(1) and 65DA(2)

4. The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5).  The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent.    In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement

5. If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined in accordance with the child’s best interests.  The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

6. As indicated in my earlier reasons, nothing suggests that the presumption of equal shared parental responsibility does not apply or has been rebutted.  It is abundantly clear, in my view, that the father and the mother should continue to have equal shared parental responsibility for the child.

7. I am then required to consider whether the child should spend equal time with each parent.  If I reach a conclusion that equal time is not in her best interests or reasonably practicable, then I am required to consider whether she should spend substantial and significant time with each of her parents.  I will carry out that exercise by reference to the considerations set out in section 60CC, which the court must take into account in determining what orders are in a child’s best interests.

The Primary Considerations:  Section 60CC(2)

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

section 60CC(2)(b):  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. These two considerations require little examination.  There is no question that the child currently enjoys a meaningful relationship with each of her parents.  I have no doubt that she will benefit greatly by a continuation of her current meaningful relationship with each parent.

2. Likewise, there was no suggestion in the evidence of any need to protect the child from abuse, neglect or violence.  Nothing even hinted that there is any such concern.

The Additional Considerations:  Section 60CC(3)

Section 60CC3(a):  any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

1. In the Family Report interviews the child took care not to express a preference to spend more time with one of her parents.  Dr H presented her with three possible scenarios and reported:

   “[the child] indicated that she would be ‘sad’ if required to spend more time with her mother; ‘angry and sad’ if her living arrangement remained as it is; and ‘really angry’ if required to spend more time with her father. 

   Dr H’s assessment was as follows:

   “[the child’s] responses to the three possible scenarios indicate that there is no ideal living arrangement for her.  They suggest, though, that she prefers spending time with her mother.  She is careful not to voice this explicitly in her attempt to avoid hurting her father to whom she is clearly strongly bonded.  [The child] accurately anticipates how distressed [the father] would be should her time with him be reduced.  The weight to be given to [the child’s] implied preference is very much limited by the child’s young age and lack of maturity.”

   I have no reason whatsoever to doubt the accuracy of Dr H’s opinion in this, or any other, regard.

   Section 60CC3(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);

2. Dr H assessed that the quality of the child’s relationship with each of her parents presents no basis for distinguishing between their competing positions. The evidence suggested nothing problematic in the child’s relationship with either of her parents or other significant adults.

   Section 60CC3(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;

3. As I remarked in my earlier reasons, the father and the mother clearly lack respect for and trust in each other.  Twelve months later, I have no basis to suppose that there has been any improvement in this dynamic.

4. As I remarked in my earlier reasons, the best that can be said is that the father and the mother have a history of compliance with court orders.  Unfortunately, the flexibility which would promote the child’s interests is lacking in the mindset of her parents.

   Section 60CC3(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;

5. In my earlier reasons I commented that any significant (my emphasis) reduction in the child’s time with one of her parents would possibly be adverse to her interests.  Regrettably, the father seems unable to comprehend that the quality of the child’s relationship with him and his beneficial input into her life is not determined by the amount of time that she spends with him.

6. Dr H observed: 

   “[the father] is wedded to the mantra of equal care, unable to contemplate the fairness to him and [the child] of any arrangement that results in his daughter spending less than equal time with him.  He is unable or unwilling to accept that his parental contribution to his daughter hinges more on the quality of their interaction and relationship rather than the actual time they spend in each other’s presence.  The extent, if any, to which child support issues fuel [the father’s] determination to preserve [the child’s] present living arrangement is difficult to determine.  His wish to change [the child’s] school to [R], while still retaining equal care, seems more about his convenience than [the child’s] interests.”

   From the child’s perspective, it is most regrettable that her father clings to this view.

   Section 60CC3(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;

7. The practical difficulties and expense created by the fact that the father and the mother live 52 kilometres apart remain unchanged.  Unsurprisingly, the father reported no problems for the child in the travel involved in the current arrangement.  On the other hand, the mother complained that the child becomes tired, suffers from car sickness and needs to use the toilet during the trip.  As Dr H noted, neither parent seems prepared to contemplate a move closer to the other home for the benefit of their daughter.

   Section 60CC3(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;

   Section 60CC3(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

8. I have referred already to the father’s focus on equal time to the exclusion of any other possible arrangement.  In submissions he clearly demonstrated his insistence on equal time and made remarks which indicated to me a degree of self-focus.  Inter alia, he said: 

   “I miss her a lot.” 

   “[The mother] sees her 13 days.” 

   “I can’t imagine having to wait two weeks to know what she is doing at school.”

   “ I don’t want to be a father who is put back to every second weekend.” 

   “I will fight for as long as it takes for her to have a mother and father in her life.”

9. During the Family Report interviews the father threatened to be “on every radio station in Sydney” if the outcome of these proceedings is not to his satisfaction. I provided both parties with a copy of section 121 of the Family Law Act and advised the father to think carefully about making good his threat.  He said that his statement was “just words” and gave an assurance that he would not do so.

10. I mention these matters because I have a real concern as to the father’s ability to place the child’s needs ahead of his own.  He seemed oblivious to the indication he provided, as to his mindset and priorities, as he pleaded that there be no change in the existing arrangements. 

11. The mother, too, seems to lack insight into the child’s true needs.  She was open in her criticism of the father to Dr H, although it must be said that he reciprocated in kind.  She claimed, in effect, that she is required to compensate with love for the child for the effects of her being with her father.  Dr H reported:

    “[the mother] reported that some weeks previously, [the father] had given her only three days notice that he and [his wife] were going to Fiji for two weeks and that [the child] would be staying with her during that time.  What seemed to upset [the mother] more was that [the father] did not take any time off work when he had [the child] during the school holidays.  She found [the father’s] failure to focus on [the child] when the child is in his care as ‘repulsive’.  His attitude forced her, she said, to overcompensate when [the child] was with her.  [The mother] stated ‘my love (for [the child]) is pure and utter love.  I’m her mother.  What else is there?’.  [The mother] was adamant that she was capable of pure and utter love, saying that she put everyone before herself.  She was, she said ‘in love with my daughter’.”

Consideration and Conclusion

1. Dr H was of the opinion that a continuation of the present amount of travel which the child undertakes would not have the effect of “emotionally scar[ring]” her.  The benefit to the child, as distinct from the father, nevertheless seems to me to be questionable.  It seems to me that the division of her time between her parents can be better organised for her benefit.

2. At present the child does not have the opportunity to spend a full weekend with either of her parents.  It seems to me that she would benefit from such an arrangement.  There would be many activities which she could then undertake with each of her parents and extended families.

3. I am not persuaded that the current arrangements are optimal, from the perspective of the child’s needs.  It seems to me that she would derive more benefit from an arrangement consistent with the recommendations of Dr H but with additional weekend and school holiday time with her father.

4. It should not be concluded that I am acceding to the father’s threats in reaching this conclusion.  I have a real concern that his apparent inability to cope with any outcome which does not equate to equal or approximately equal time will have a flow-on effect to the child.  It is for that reason only that I have decided the matter in this way.

5. I will order that the child spend two additional weekends per school term with her father, from the conclusion of school on Friday until 6:00pm on Sunday.  The parent who has the care of the child will be responsible for transporting her to and from school.  I will also order that the child spend two additional days in each of the short school holidays and five extra days during the Christmas vacation with her father.

6. Otherwise, the arrangements for school holidays and special occasions will continue as provided in the consent orders made on 7 February 2005.  Nothing was put to me as to why I should take any different course.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:               27 April 2009