Sweeney and Maguire - [2008] FMCAfam 792

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SWEENEY & MAGUIRE

[2008] FMCAfam 792

FAMILY LAW – Child aged six – arrangements for care pending final hearing – nature of interim hearing – application of presumption of equal shared parental responsibility – whether equal time arrangement in child’s best interests – considerations of reasonable practicality.

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 92-286

Applicant:

MR SWEENEY

Respondent:

MS MAGUIRE

File number:

ADC 1277 of 2008

Judgment of:

Brown FM

Hearing date:

15 July 2008

Date of last submission:

15 July 2008

Delivered at:

Adelaide

Delivered on:

15 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr M.A. Boehm

Solicitors for the Applicant:

Adelaide Family Law

Counsel for the Respondent:

Mr J.W. Bolton

Solicitors for the Respondent:

Boltons Lawyers

ORDERS

The matter is fixed for final hearing before Federal Magistrate Brown on 4 & 5 February 2008 at 10:00am NOTING 2 days allowed.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child [X] born in 2002 of the relationship attend upon a Regulation 7 practitioner nominated by the Dispute Resolution Co-ordinator, Federal Magistrates Court of Australia, on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by no later than 12 December 2008.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant/assessor considers important to the welfare or best interests of the said child.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 7 January 2009.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 7 January 2009.
The applicant pay the hearing fee or obtain a Remission Certificate in respect thereof by no later than 19 December 2008.
The child [X] born in 2002 live with the mother.
The said child spend time with the father as follows:
(a)During school term on alternate weekends commencing 25 July 2008 from after school on Friday until the commencement of school the following Monday;
(b)For the first half of the September/October school holidays from 9:00am on 27 September 2008 until midday on 4 October 2008.
(c)For the first half of the Christmas School holiday 2008/2009 provided the child spend equal periods of time with both her parents over the Christmas period at times to be agreed between the parties and failing agreement to be from midday on
24 December 2008 until midday on 25 December with the mother but otherwise the child continue to spend time with the father pursuant to these orders.
(d)At any other times as agreed between the parties.
In the event that father’s day falls on a weekend the child would not otherwise be with the father the father spend time with the child on that weekend in lieu of the preceding weekend thereof.
The father spend time with the child on the weekend of her birthday concluding on that weekend only at midday on 10 August 2008.
Both parties be at liberty to attend all of the children’s sporting and extra curricular activities and all school functions routinely attended by parents in respect of the child, obtain copies of the child’s school reports and school photographs and any other school related information in respect of the child.
The mother and the father advise the other party as soon as possible in the event of any medical emergency or serious injury suffered by the child.
The mother and father keep each other advised of their current residential addresses and contact telephone numbers to be used for emergency contact numbers and for any telephone communications between the children and the other parent.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The mother be permitted to continue the child’s enrolment at [W] Primary School.
The father collect and return the child at the beginning and end of each period specified in orders 8, 9 and 10 hereof at the child’s school or if the child is not attending school at the mother’s home or such other place as agreed between the parties.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 1277 of 2008

MR SWEENEY

Applicant

And

MS MAGUIRE

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered immediately following the interim hearing. As the matter is proceeding to a final hearing and a family report ordered, it is appropriate that the orders be transcribed.
This afternoon I have to deal with an application brought by
Mr Sweeney. The respondent to the application is Ms Maguire. The parties are the parents of a little girl, [X], who was born in 2002. So in about two or three weeks time [X] will be having her sixth birthday.
The proceedings today relate to interim arrangements for [X]'s care. What that means is that the orders that I make today will stay in place until there can be a longer and more thorough hearing.
Today, I have just read the affidavits which each of you have prepared for this case. I have not seen either of you in the witness box, answering questions that may be put to you about what has happened in the past, which you may find difficult to answer.
As a result, it is very difficult for me to form an accurate assessment of what sort of people you are and, perhaps more importantly, what sort of parents you are and what motivates you in these proceedings.
The hearing today has been brief. It started at 4 o'clock this afternoon and it is now about 5 o'clock. It is not a long time to make a significant decision about someone who is not here. That person, of course, is [X].
Each of you must appreciate that there is something artificial about me making such a decision after this fairly brief hearing, which does not involve any oral evidence from you, yourselves, about a little girl who is not here.
I am very conscious that this hearing may make your relationship with one another, already difficult, even more difficult. You are going to be the parents of [X], regardless of your personal feelings for one another, for a very long time indeed.
As a matter of law, [X] will stop being a child when she is 18 which is another 12 years away. The reality is, I would hope, that you will be parents to [X] for as long as you both live. As such, you will need to have at least a working relationship with one another, about [X], for this very lengthy period of time.
You are both young people. All sorts of things are going to happen to you in the next 30 or 40 years. You are going to have other children, quite possibly, and form other sorts of relationships, but you will be [X]'s parents for as long as you live.
[X] herself, in future, may have her own children - of course she will - and you will be grandparents to those children. So there are all those connections you will have for one another, both now and into the distant future.
I point these things out, not to tug on your heartstrings, though you may think that that is why I am doing it, but to point out the reality of the situation: that it is not a good thing for me to make decisions about your daughter, whom I have no reason to think anything other than that you love very much. Ideally these decisions should be made by your selves. There may be implications, for a very long time, falling from what I do today, not only for each of you but also for [X].
I do not think this is an easy case, by any means. However, the background to it can be quite easily set out, as there is no great controversy about it. You met when you were very young, I think. You had a relationship together for some months, and I suspect that neither of you were probably - and I mean no disrespect - at the best age to become parents because you were both so young.
Anyway, when Ms Maguire fell pregnant with [X], you were not in a relationship together. You had separated, as young people often do.

As a result, there seems to be absolutely no controversy that

Mr Sweeney did not know that Ms Maguire was pregnant. That of it self, is a very significant thing. It is a very significant thing indeed.
At that time, for all sorts of reasons, Ms Maguire did not tell

Mr Sweeney about something that was very, very significant indeed, to him now, as we stand in 2008. What her motivation at the time was, I do not know and maybe I am not entitled to know.
It was not until 2006 that the issue came to the fore. Ms Maguire broached the subject with Mr Sweeney. As a result, parentage testing was carried out and Mr Sweeney was revealed as [X]'s father.
No doubt powerful emotions were created by that situation. That it is not an uncommon thing. No doubt Mr Sweeney was excited to find out that he was a father and perhaps overawed by the circumstances which surrounded this realisation.
Accordingly, there is absolutely no doubt that, for the first four years or so of [X]'s life, she was reliant for her care and emotional support and physical support upon her mother, Ms Maguire. Then Mr Sweeney, in the latter part of 2006, became involved. It is Ms Maguire's position that she was anxious that Mr Sweeney become involved and so [X] would know who her father was.
It is, I think, a fundamental human right to know what your parentage is. Essentially to know who created you; what aspects and attributes you have from your mother and father; to know, fundamentally, where you came from.
It is my apprehension, and I may be mistaken about it, that you do not have, as a result of your history with one another, a particularly good basis upon which to co-parent your daughter, for all sorts of historical reasons.
I may be wrong about that, but at this juncture, it is difficult for me to form a view about that. To a certain extent, I suspect it is self-apparent that you do not have a good relationship as parents, with one another, because you are effectively asking me to make a decision about your daughter and you do not have a lengthy history of parenting [X] together.
As I have pointed out to you, there is some level of artificiality about me making a decision in these circumstances. However sometimes these decisions need to be made. My function is to make such parenting decisions, when there is such a level of dispute between parents, that someone simply has to step in and say, “It will be this way” about the child involved.
If there was not such a system, the strong perhaps might take advantage of the weak, and take things into their own hands, and that would not be a good thing. We live in a system that is ruled by legal rules and principles, and the law has to apply to this dispute, notwithstanding that it is probably not the best way for it to be resolved, particularly so far as [X] is concerned.
In an ideal world - and obviously we do not live in an ideal world - as I have already indicated, I suspect you do not have a perfect basis on which to parent your daughter - you would work out these issues on a day‑to‑day basis, focusing on what is likely to be in [X]'s best interests from time to time. Anyway, this is the brief background to the dispute.
At this stage, it is Mr Sweeney's point of view that I should apply the presumption that you have equal shared parental responsibility for your daughter, and it should follow from that that she should live with each of you on a weekabout basis.
It is Ms Maguire's point of view that such an outcome would not be in [X]'s best interests, and there should be a more cautious approach taken at this point, given the parties' history with one another, to [X]'s care. She proposes that [X] should spend time with her father on weekends and during school holidays.
The father has re‑partnered and his partner is Ms K. The father and

Ms K, have a child [Y] who was born in 2004, so [Y] is four and a quarter. It is the father's position that it is likely to be in [X]'s best interests to know her half-brother and spend as much time with him as possible.
Since the issue of paternity was resolved, the parties have not felt a need to come to court. I suspect that that is a promising sign because it is about 18 months or more since the issue of paternity was resolved. Mr Sweeney did not see fit to bring these proceedings until 2 April 2008. Before then, the parties have been trying to sort out arrangements for [X]'s care, and they have had some professional assistance with that and again that is a good thing.
The resumption of their relationship seems to have precipitated other emotions. I am not going to embarrass either of you by outlining what has been said in some of the affidavit material in this regard. In such circumstances, it is perhaps not surprising that Ms K and Ms Maguire do not have the easiest relationship with one another at this point. I am not surprised at that at all, although you may have a different view about whether that is so or who is driving the difficulty in the relationship.
It seems to be the case that, once the issue of paternity was resolved, [X] has frequently or fairly often seen her father. It is the mother's position that she has been supportive of this relationship. The father's view is that, to a certain extent the mother, has been taking advantage of his ability to be available to care for [X]. That is one issue that is difficult for me to resolve.
It is the father's position that the mother has been capricious regarding arrangements. The mother has a different view, saying that she has been as supportive, as she possibly can be, in regards to [X] having a relationship with her father. However she points out that these relationships do not appear overnight, particularly given that, until the latter part of 2006, Mr Sweeney was a stranger to [X].
The parties have been through a process of mediation at the Legal Services Commission and it seems to be the position that the parties did, ostensibly at least, agree to a weekabout arrangement for [X]. I have been provided with a document that is dated 21 July 2007, which sets that out.
It seems there was a period during which [X] was living, weekabout with her father, certainly in September of 2007. That arrangement has broken down. The mother deposes that she felt pressured into the agreement. The father says that the mother has withdrawn from the agreement for no good reason.
In his affidavit material, Mr Sweeney is critical of Ms Maguire and her parenting of [X]. He is critical of his perception that she moves frequently, that she is involved with other people, that she drives when she should not, that she smokes and that she is generally irresponsible, effectively parking [X] with him when it suits her.
The mother is also, for her part, critical of the father, saying that the father has not thought through his proposal for [X], particularly in terms of his working arrangements - he is a chef at the [omitted] Hotel. She is also critical of the involvement of Ms K and her parenting of [X].
In respect of all these sorts of criticisms, I am not in a position today to make specific findings of fact. But the nature of these proceedings, which are adversarial, is that people of course are critical in their affidavits about the other party.
Nobody comes into court and says the other party is a terrific parent or a terrific person. People are critical of one another because they want to achieve the outcome they want and that is how they do it. Mr Boehm and Mr Bolton are effectively hired guns, who go into battle on your behalf.
I am very conscious of the harm that people can do in making allegations. I am at pains to point out to you that I am not in a position to make definitive findings of fact about all manner of things. There are lots of aspects of the evidence that I do not know about.
Chiefly, of course: what is [X]'s relationship with each of her parents; what sort of a child she is; how she copes with change; how she copes with all manner of things; what is her relationship with each of her parents and with Ms K?
This is the sort of case where I think there should be some sort of independent psychological assessment of [X]. Obviously, I do not have that today. Still, notwithstanding these difficulties, I have to make a decision about [X]. I have to do it within a legal framework and I am going to explain, as best I can, what that legal framework is.
Whatever order I make today, I have to be satisfied that it is likely to be in [X]'s best interests. The aims and principles of the Family Law Act emphasise the desirability of both of a child's parents being involved in their child's life, both in terms of the time each parent spends with the child and the exercise of parental responsibility.
Because of that, the starting point for any parenting order for a child is the presumption to which I have already referred of equal shared parental responsibility. That is set out in section 61DA of the Family Law Act.
That presumption is rebutted if it is found, on reasonable grounds, that one of the child's parents has abused the child or neglected the child or exposed the child to family violence.
Thankfully, this is not a case where there are allegations of family violence, although it is, I think, Mr Sweeney's point of view that [X] has been subjected to some degree of neglect.
The presumption is also rebutted if I think it would simply not be in the child's best interests to apply it. In addition, at the interim stage, I have a discretion not to apply the presumption if I think it would not be reasonable for it to be applied, but I am not to do that in an arbitrary manner.
In determining what is likely to be in [X]'s best interests, I have to look to a long list of matters in the Family Law Act. If you are interested, they are in section 60CC. There are two types of matters I have to consider. Firstly, primary considerations and secondly a longer list of what are called additional considerations.
There are two primary considerations - firstly, the benefit a child is likely to gain from having a meaningful relationship with both his or her parents, and secondly the need to protect the child from the harm, represented by abuse, neglect and family violence.
In this case, it seems the former consideration should be given more weight because, as I say, neither of you strongly suggest that [X] has been subjected to family violence or abuse or neglect. The additional considerations are more lengthy, and I will come to them in a moment.
The presumption does not of itself determine what extent of time a child should spend with each of his or her parents. That is determined by section 65DAA.
If the presumption applies, I am required to consider the child concerned firstly, spending time with both his or her parents, subject to the child's best interests and considerations of practicality.
If that is ruled out, I am then required to consider the child spending substantial and significant periods of time with both his or her parents, again subject to considerations of best interests and practicality.
Issues of practicality are dealt with by section 65DAA. I have to look at how far apart the parties live, the parties' current and future capacity to be shared-care parents, the parties' ability to communicate with one another, and, most importantly, the likely impact of such an arrangement on the child concerned.

In essence, it is Mr Sweeney's point of view that I should consider and apply the presumption, and then I should accept his submission that it is both likely to be reasonably practicable and in [X]'s best interests for her to spend equal periods of time with both of her parents.
The mother quite simply says that such an outcome is not likely to be in [X]'s best interests, and, given all sorts of factors, it is not likely to be reasonably practicable.
I am sorry it has taken me some time to explain the law but the law is fairly complicated, and I am not done with it yet. In a case of Goode v Goode, the Full Court has said that what I am required to do is to make findings of fact, wherever I can, about the relevant section 60CC matters, then go to the presumption, determine whether it applies or not, and, even if it does not apply, still consider equal time and substantial and significant time arrangements, after having worked through whatever findings I can make to reach the outcome that I think is best calculated to be in the best interests of the child concerned.
In this case, it seems to me there are no significant issues of abuse, neglect or family violence. Accordingly, I accept that I have to give significant weight to the benefit of the child concerned having a meaningful relationship with both his or her parents.
By way of additional considerations, I do not know if [X] has any view about what is the best outcome from her point of view. However, she is not yet six years of age, and, given that, it seems unlikely that she will have any great insight into that issue.
I have to consider the nature of the relationship [X] has with each of her parents. I think in a case like this that is a significant factor. Undoubtedly, for the majority of [X]'s life she has been cared for by her mother and obviously the years of early childhood are significant in terms of a child developing attachments and bonds with a parent.
I have to consider the willingness and ability of each of [X]'s parents to encourage a close and continuing relationship between [X] and the other parent. By implication, the father is critical of the mother for not encouraging his relationship with [X].
However, the mother says that it was she who introduced [X] to her father and it is her position that she has been supportive of the relationship. I think it is difficult for me to form a concluded view, at this stage, about the matters which fall for consideration under that criterion.
I have to consider the likely effects of any changes in [X]'s circumstances, including the likely effect on [X] of being separated from either one of her parents. It is the case that the mother places significant emphasis on this heading.
It is her position that it would be premature and precipitate to impose a shared care arrangement in respect of [X], given the fact that for the first four years of her life she did not know her father at all. At this juncture I think there is some force to that submission.
I have to consider practical issues in respect of the child spending time with each of her parents and those practical issues pick up section 65DAA.
As I have already indicated, I do not think the parties have a strong base upon which to parent [X] consensually. In the past, it seems they have communicated quite well, but I am concerned that these proceedings have retarded the parties' ability to consensually parent [X]. I think it is self-apparent that the parties do not have a strong parenting relationship with one another, in that they ask me to make these important decisions about her.
At this point I do not know what sort of an impact moving from an arrangement where [X] has lived predominantly with her mother to experimental periods of spending time weekabout with the father to an arrangement where she lives weekabout will have on [X]. I think that of itself militates in favour of a cautious approach being taken.
I have to consider the capacity of each of [X]'s parents to provide for [X]'s needs and their attitude to the responsibilities of being a parent. Both parties are critical of the other's parenting capacity. I cannot resolve those matters at this stage.
I have therefore reached the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied. I reach that conclusion because of the unusual circumstances of this case. I think it is one which behoves the court to take a cautious approach.
Notwithstanding that, I still have to bear in mind the principles of the Act, particularly [X]'s entitlement to have a meaningful relationship with both of her parents, and the other considerations set out in section 60CC(3).
It seems to me that Mr Sweeney has done well to develop his relationship with [X], in somewhat difficult circumstances. I accept that he and [X] certainly have the possibility of having a very meaningful relationship with one another.
At this stage, the other of the additional considerations to which I have turned my mind - particularly section 60CC(3)(d), and the nature of the likely relationship between the child and the mother - militate against a shared parenting regime at this interim stage, until there has been a more thorough and exhaustive inquiry. I am concerned at the likely impact on [X] of a shared parenting regime.
I think [X] can maintain a meaningful relationship with her father and also continue to develop a relationship with her father, if she spends time with him on weekends and during school holidays, which the mother proposes.
I appreciate that is not what Mr Sweeney wants, but, given the interim nature of these proceedings and the discretion I have at the interim stage and given the fact that he became a part of [X]'s life in the latter part of 2006, I think such an outcome at this stage is likely to be in [X]'s best interests.
I am going to fix the matter for hearing as soon as I can. It will not be as soon as Mr Sweeney would like but it is the earliest date I have. I am also going to order that a family report be prepared.
I am conscious that financial implications form some of the background to this case. Ms Maguire is legally aided; Mr Sweeney is not. It is a significant financial investment for him to bring these proceedings. I accept he is not a person who is in a strong financial position, but I also have to bear in mind that this is an inquiry into [X]'s best interests.
On that basis I am going to order that there be a court‑based report, pursuant to section 62G. I am going to fix the matter for final hearing, as I say, and make some interim orders which will stay in place for the next six or seven months or so. I am going to make orders that deal with the Christmas period, Father's Day and [X]'s birthday.
For all these reasons, the orders of the Court will be as set out in at the commencement of these reasons for judgment.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 15 July 2008