Talcott and Oblander
[2008] FMCAfam 1135
•22 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALCOTT & OBLANDER | [2008] FMCAfam 1135 |
| FAMILY LAW – Children (parenting orders) – child aged under 2 years living with the mother – overnight contact – best interests of the child – parenting after separation course. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 65AA |
| Applicant: | MR TALCOTT |
| Respondent: | MS OBLANDER |
| File Number: | CRC 123 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 23 & 26 September 2008 |
| Date of Last Submission: | 26 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2008 |
REPRESENTATION
| Applicant’s Solicitor: | Ms Adams |
| Solicitors for the Applicant: | Burridge Harris & Flynn |
| Solicitor for the Respondent: | Mr Hammond |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
That the parties retain shared parental responsibility for the Child [X] born in 2006.
That the Child live with the mother.
That the Child spend time with the Father until she commences school as follows:
(a)
each Saturday and Sunday from 10:00am to 4:00pm until
31 March 2009;
(b)from and after 31 March 2009 until 31 March 2010, each alternate weekend from 4:00pm Friday until 4:00pm Saturday and each other weekend from 10:00am Saturday until 4:00pm Sunday;
(c)from and after 31 March 2010 until the first weekend in January 2011, each alternate weekend from 4:00pm Friday until 4:00pm Sunday and each other weekend from 10:00am until 4:00pm on Saturday; and
(d)from and after the first weekend in January 2011, until the Child commences school, each alternate weekend from 4:00pm Friday until 9:00am on Monday extending to 9:00am on Tuesday if the Monday should be a public holiday, and each other Saturday from 9:00am until 5:00pm.
Once the Child commences school, she is to spend time with the Father as follows:
(a)each alternate weekend during school term from 4:00pm Friday until 9:00am on Monday extending to 9:00am on Tuesday if the Monday is a Public holiday and one half of each school holiday period except the Christmas/January school holiday period, being the first half in years ending in an odd number and the second half in years ending in an even number;
(b)for alternate weeks in the Christmas/January school holiday period commencing with the first week in years ending in an odd number and the second week in years ending with an even number.
The Child will also spend time with the father as follows:
(a)from 10:00am until 4:00pm on Christmas Day 2008 and thereafter from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in years ending in an even number and from 2:00pm on Christmas Day until 10:00am on Boxing Day in years ending in an odd number;
(b)for four (4) hours on the child’s birthday 27 November in each year being from 4:00pm to 8:00pm if on a week day and from 10:00am to 2:00pm if the day falls on a weekend if she is not otherwise to be in his care; and
(c)on Father’s Day in each year from 10:00am until 4:00pm if she is not otherwise to be in his care.
The Child is to spend time with the Mother, if not otherwise in her care, as follows:
(a)for four (4) hours on the child’s birthday 27 November in each year from 12 noon to 4:00pm; and
(b)on Mother’s Day in each year from 10:00am until 4:00pm.
The Child is to spend time with the Mother from 2009 onwards from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years and from 2:00pm on Christmas Day until 10:00am on Boxing Day in even numbered years.
The Child shall communicate with the Father by telephone each Tuesday and Friday between the hours of 5:30pm and 6:00pm and for this purpose the Mother is to advise the Father of a telephone number which the Father is to telephone.
Changeovers of care between the parents are to take place at the front of [omitted].
The parties are to maintain a communications book which will accompany the Child at changeovers.
The Mother and the Father are to enrol in a parenting after separation course conducted by the family relationship centre at Maroochydore and undertake that course until completion.
Neither party is to use insulting or derogatory comments to or about the other or any member of the other’s family or partner in the presence or hearing of the Child or permit any third party to do so.
Neither party is to permit the Child to be or remain in the company of any person who:
(a)is using or is under the influence of any illegal drug; or
(b)uses or threatens violence of any kind ; or
(c)is using or is under the influence of an excessive amount of alcohol.
Neither party is to refer to any other person than the mother as the child’s mother or any other person than the father as the child’s father.
IT IS NOTED that publication of this judgment under the pseudonym Talcott & Oblander is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 123 of 2008
| MR TALCOTT |
Applicant
And
| MS OBLANDER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father of a little girl called [X], who was born in 2006. He seeks orders that would result in the Child continuing to live with her Mother but spending time with him, including overnight.
The issue is when does overnight contact between the Father and the Child start?
Background
The parents themselves are still quite young. The Father was born in 1987, so he has only recently turned 21. The Mother is not much older; she was born in 1986. She is about to turn 22.
The parties were together from February 2006 until November 2007. Their relationship was volatile, and was not helped by the fact that the Mother became pregnant only about 8 weeks into the relationship. The Mother’s relationship with her own parents is less than ideal, and has been marked by arguments and periods of estrangement. The Mother would stay with her parents from time to time, but these stays would usually end with the Mother leaving. She deposes in her affidavit filed on 27th June 2008 that her father, who apparently suffers from depression, on one recent occasion lost his temper and started kicking the door of her room.
The Mother has expressed concerns about the Father’s parents, who she claims use marijuana.
The Mother has been diagnosed with post natal depression and was prescribed anti-depressant medication. The Father deposes in his affidavit filed 12th September 2008 that he, too, was diagnosed with depression and prescribed anti-depressant medication.
The parties have both re-partnered.
The relationship between the parties is poor and their communication is often acrimonious. The Father deposes that he consented to an apprehended violence order taken out by the Mother. He claims that he did not see the Child for several months because the Mother would not allow him to. There were supervised contact visits from 23rd February 2008 after the parents attended a Family Law Conference by telephone on 1st February. The parties did not reach agreement at this conference.
The supervised contact visits took place from 23rd February to 31st May 2008 at the Interrelate Contact Centre at Coffs Harbour.
The Father commenced proceedings in this Court by filing an application and an affidavit in support on 1st May 2008. The Mother filed a Response on 27th June 2008.
On 27th July 2008 the parties entered into consent orders providing that:
a)the Child would live with the Mother;
b)the Child would spend time with the Father on three consecutive Saturdays from 10:00am until 2:00pm; then
c)the Child would spend time with the Father on three consecutive Saturdays from 10:00am until 3:30p.m.; and then
d)the Child would spend each Saturday with the Father from 10:00am until 4:30pm, commencing on 30th August 2008.
The Father was also to speak to the Child on the telephone between 5:00pm and 6:00pm each Wednesday.
Due to the parents’ limited ability to communicate with each other, there was to be a communications book into which the Father would be required to enter details about the Child’s eating, drinking and sleeping whilst in his care.
Issues
Essentially, this case is about the commencement of what used to be called overnight contact. There is no issue about the fact that the Child is to live mainly with the Mother and the Father is to spend time with her on a regular basis.
The Relevant Law
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975 (Cth), ss.60CA and 65AA). In determining what is in the best interests of the particular child, the Court must consider the matters set out in s.60CC of the Act.
The primary considerations are the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm arising from abuse, neglect or family violence (s.60CC(2)).
The Best Interests of the Child
The Child currently lives with her Mother and both parties seek an order that this should continue. At the time these proceedings commenced, the parents were living in the Coffs Harbour area. They have both moved, separately, to the Sunshine Coast in Queensland and are living with their new partners.
It is important, and a primary consideration under s.60CC(2), that this little girl should have a meaningful relationship with both of her parents. Whilst the parents do not get along well together, and it is apparent from their affidavits that they seldom got along well, they both concede that the other has a love for the child, although they are critical of each other’s parenting skills. Whilst the Father has deposed that the relationship was “not beneficial” for either of them, he concedes:
Our relationship did result in the birth of [X] who Ms Oblander and I both love.[1]
[1] Affidavit of Mr Talcott filed 12 September 2008 paragraph [18]
It is also a primary consideration that the Child should be protected from the physical or psychological harm described in s.60CC(2)(b).
The parties are critical of each other’s parenting skills, not to mention each other’s parents. They have raised issues of abuse of alcohol and use of illicit drugs. They describe incidents of violent behaviour whilst they were together. All of these matters, if they were to continue, would be harmful to the Child.
It is also well established that displays of acrimonious behaviour between a Child’s parents, especially in the presence or hearing of the Child, are detrimental to a Child’s well-being and can be psychologically harmful.
There are several additional considerations set out in s.60CC(3) of the Act. The first of these is whether there are any views expressed by the Child. This little girl is not yet two years old. Her second birthday will take place in 2008. She is too young for her views to be ascertained.
There is no evidence to suggest that the Child does not have a good relationship with the Mother.
The Mother has deposed that the Child’s behaviour has become aggressive after she returns from spending time with the Father. She deposes that the Child has used swear words after visiting her Father. The Mother states that on 16th August 2008, after the Child was returned, she was distressed:
On this day, [X] sat and said the swear words constantly. [X] also hung on to me and would not let go. When I tried to put her down she would start screaming and get upset. I said to [X] words to the following effect:
“What’s wrong?”
[X] said to me in reply:
“Daddy” and started screaming again.[2]
[2] Affidavit of Ms Oblander filed 8 September 2008 at [10]
The Mother further deposed that the Child wanted to be held by her and took a couple of days to settle down. The Child did not sleep well for the next couple of nights.[3]
[3] Affidavit of Ms Oblander 8.9.2008 at [11] and [12]
This evidence is disturbing, but has not been tested by cross-examination. Neither party gave oral evidence. It is, of course, well known that children can display unsettled behaviour after spending time with the parent with whom they do not spend most of their time, and it is important for both parents to be aware of this and act in a way that will help to ensure the Child’s smooth transition from the care of one parent to that of the other.
Against this, the Father’s new partner, Ms B, deposes that she has observed the Father with the Child on many occasions and they are forming “a good bond.”[4] She describes the Father as “a loving caring father and step-father”[5] with a “good and loving relationship”[6]
[4] Affidavit of Ms B sworn or affirmed 17 September 2008 paragraph [6]
[5] Affidavit of Ms B 17.9.2008 at [7]
[6] affidavit of Ms B at [16]
Looking at the Child’s relationships with other persons, such as grandparents and other relatives, there is evidence that the Child has two grandparents on each side. In each case, the relationship between the Child’s parents and the opposite of grandparents appears to be poor. The maternal grandmother, Ms O, has sworn an affidavit referring to the Father in critical terms, e.g. “Mr Talcott was very immature and selfish”[7]and containing a number of hearsay comments from the Mother. She describes the Mother’s new partner as “caring and playful with [X]” and “calm, patient and supportive towards Ms Oblander”.[8]
[7] Affidavit of Ms O filed 30 June 2008 paragraph [9]
[8] Affidavit of Ms O 30.6.2008 at [34]
The Father is now in a relationship with a woman[9] named Ms B. She deposes in her affidavit, filed on 17th September 2008, that the relationship commenced in February 2008 and that they commenced living together in April. She has a son from a previous marriage, now 27 months old, who lives with them. Ms B is a student who has completed three years of the degree of Bachelor of [omitted]. She deposes that she hopes to finish her degree in 2009 and commence [occupation omitted] in 2010.
[9] although she describes herself in her affidavit as the father’s “fiancé”
Ms B deposed that the Mother initially would not agree to her being present when the Father was spending time with the Child until the Mother met Ms B and her young son. Ms B now takes part in the Father’s time with his daughter.
The Mother, too, has formed a new relationship with one Mr N.
Mr N swore an affidavit on 1st September 2008 and it was filed on
8th September. He deposes that the relationship commenced in about March 2008 and that he and the Mother now live together. He is an apprentice [omitted] by occupation. He assists the Mother with the care of the child.
Mr N in his affidavit is critical of the Father’s care of the Child and describes her being unsettled and angry after having returned from visits with her Father. He criticises the Father for not returning the contact (or communication) book which has resulted in the Mother being obliged to obtain a new one. He deposes to being settled in his relationship with the Mother and wishes to remain in his relationship with the Mother and the Child.
The Father wishes to enjoy a close and continuing relationship with his daughter and is critical of the Mother for what he sees as her lack of cooperation. The Mother expresses a concern about the Father’s lack of parenting skills and his refusal to cooperate about matters such as the communication book.
The Court is required by s.60CC (3) (d) to consider the likely effect on the Child of any changes in her circumstances. There is no proposal for her to live permanently with her Father or for her to move any great distance away from him. The greatest changes in her circumstances have already happened, being:
a)the separation of her parents;
b)the move away from the Coffs Harbour area; and
c)the Mother entering into a live-in relationship with Mr N.
It would not appear to be in the Child’s best interests for her relationship wit her natural father to cease.
There is no practical difficulty or expense in the Child spending time with her father from a geographical point of view, as her parents now live on the Sunshine Coast about ten minutes’ drive from each other. The animosity between the parents appears to pose a far greater difficulty for the Child in maintaining a continuing and positive relationship with her father. The solicitors who appeared for the parties have, very properly, suggested strongly to the Court there is a clear need for the parents to attend a parenting after separation course, which appears to be an appropriate and necessary course of action.
The Court is required by s.60CC (3) (f) to consider the capacity of each of the Child’s parents and any other person to provide for the needs of the Child, including emotional and intellectual needs. Based on the parties’ affidavits, there is some cause for concern in this regard.
The parties’ affidavits, poorly drafted as they are, replete with hearsay and statements of opinion, referring to annexures that are not in fact annexed, spend much time in re-agitating the history of a failed relationship which would presumably have ended earlier than it did had the parties not had a child between them. The parties’ new partners appear from their affidavits to be on the sidelines taking the role of cheerleaders for their particular partner without giving any attention to the emotional needs of the Child as opposed to the wishes of the Father and Mother. Again, the submissions by Ms Adams for the Father and Mr Hammond for the Mother that the parties need to attend a parenting after separation course to assist both themselves and the Child are timely and appropriate.
This little girl is not yet two years of age and she has already undergone some major changes to her life with the breakdown of the relationship between her father and mother and each parent entering into a new live-in relationship relatively soon after the separation. The parents’ relationship whilst they were together appears to have been volatile and acrimonious, whilst the parents describe their new relationships in glowing terms. One can only hope that these new relationships will continue so that the Child can have some stability in her life.
The parents’ attitude to the Child and to the responsibilities of parenthood is an important factor for consideration by the Court[10]. The Father’s view is that he wishes to enjoy a continuing close relationship with his daughter, progressing to overnight contact once she attains the age of two years and he sees the Mother as frustrating this course. The Mother expresses a concern for the Child, based on her views of the Father’s limited parenting skills.
[10] Family Law Act 1975 (Cth) s 60CC(3)(i)
The Court must consider the issue of family violence and the effect of any family violence order[11] in determining what is in a child’s best interests. The Father deposed to having consented to an apprehended violence order taken out by the Mother, apparently at the Local Court at Coffs Harbour, although the copy of the apprehended violence order itself was one of those documents that was said to be annexed to an affidavit but never was.[12] As the order was made in New South Wales and the parties now live in Queensland, Mr Hammond for the Mother submitted to the Court that the order, if still in force, would be of no effect.
[11] s.60CC(3)(j) and (k)
[12] See affidavit of Mr Talcott filed 12.9.2008 at [64]
The Court is required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child[13] and any other relevant fact or circumstances.[14] I consider that an order providing for this child to live with her mother with a clear if conservative program (although not quite as conservative as the mother seeks) to allow her to spend time with her father, including a requirement for the parents to attend a parenting after separation course, would be least likely to lead to the institution of further proceedings in relation to the child.
[13] s.60CC(3)(l)
[14] s.60CC(3)m)
There are no other relevant facts or circumstances that have been brought to the Court’s attention.
Both parents need to realise that whilst their relationship together is over and they have found new partners, they remain as the mother and father of a little girl who is not yet two years old. That is a tie that cannot be undone and it imposes on them a responsibility to provide a stable, loving and nurturing relationship for her. It is for her sake that they must accept that responsibility, which includes dealing with each other politely and cooperatively, thereby setting their daughter a good example of how she should interact with other members of the community. Simple measures like using a communication book to provide useful information about the Child’s needs and activities or ensuring that the Child’s toys and items of clothing are returned clean and undamaged will go long towards establishing a situation where this little girl can feel comfortable and happy in spending time with each parent.
Whilst they remain their child’s parents, the rest of the parties’ relationship is over. They should let it go; they have formed new relationships which should, let us hope, provide them with the love and happiness they need.
Whilst their old relationship is now over, both the Father and Mother should look at the daughter they had together, watch her grow and develop, and draw comfort from the fact that no relationship that produced a beautiful little two year old girl like [X] could ever be called a failure.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 October 2008
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