Vine and QUACKENBOSS
[2010] FMCAfam 1168
•21 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINE & QUACKENBOSS | [2010] FMCAfam 1168 |
| FAMILY LAW – Children – Parenting orders – child aged 6 years – consent orders relating to major issues – necessity to decide ancillary matters – school holiday time – extra-curricular activities. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS VINE |
| Respondent: | MR QUACKENBOSS |
| File Number: | SYC 236 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 October 2010 |
| Date of Last Submission: | 19 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Jennifer Weate & Associates |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | Rafton Family Lawyers St Clair |
| Counsel for the Independent Children’s Lawyer: | Mr Auld |
| Solicitors for the Independent Children’s Lawyer: | Tiyce & Partners Lawyers |
ORDERS BY CONSENT
That all previous orders be discharged.
That the child [X] Vine born [in] 2004 (“[X]”) live with the Mother.
That the Mother have sole parental responsibility for the care, welfare and development of [X].
That [X] shall spend time with the Father as follows:
4.1 During school terms, each alternate weekend from the end of school on Friday until the commencement of school the following Monday, commencing Friday 29 October 2010;
4.2 During school terms, in the off week, from the end of school on Wednesday until the commencement of school on Thursday, commencing 20 October 2010;
4.3 For one week in each of the shorter school holidays, being the first week of such holidays;
4.4 During the Christmas school holidays;
4.5
On Boxing Day each year from 9:00am until 5:00pm on
27 December in each year;
4.6 On Fathers’ Day, should [X] be living with the Mother, from 9:00am to 6:00pm;
4.7 On [X]’s birthday, should [X] be living with the Mother, from after school until 7:00pm if her birthday occurs on a school day, and from 1:00pm until 4:00pm if her birthday occurs on a non-school day; and
4.8 Such other times as may otherwise be agreed between the parties from time to time.
That for the purposes of changeover in accordance with order 4.1 and 4.2 above, the Father will collect [X] from school at the commencement of his time with her and will deliver [X] to school at the conclusion of his time with her.
That for the purposes of changeover in accordance with orders 4.3, 4.4 and 4.5, the Mother will deliver [X] to the Father’s residence at the commencement of time that he has with [X] and the Father shall deliver [X] back to the Mother’s residence at the conclusion of his time with [X].
That in the event that [X] is spending time with the Father on Mothers’ Day then [X] shall spend time with the Mother from 9:00am to 6:00pm, with the Mother to collect and deliver [X] from and to the Father’s residence.
That in the event that [X] is spending time with the Father on [X]’s birthday, then the Mother will spend time with [X] from after school until 7:00pm if her birthday occurs on a school day, and from 1:00pm until 4:00pm if her birthday occurs on a non-school day.
That the parties shall keep each other informed of their residential addresses and home and mobile contact phone numbers and provide the other party with at least one (1) month’s notice in advance of any proposed change of those contact details.
That the parties shall call [X] between 5:00pm and 6:00pm each evening when [X] is not otherwise with them by telephoning the other party’s mobile telephone, the parties will do all things necessary to facilitate such telephone call.
That the parties shall advise each other as soon as is reasonably practicable of any matters affecting [X]’s state of health or any medical issues which may arise with [X] whilst in their care, and/or any medical appointments arranged for [X]’s attendance in the event of any serious illness or injury suffered by [X]. The parties shall provide full particulars of any medical practitioner, health service provider or institutions attended by [X] and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning [X].
That the parties shall give all necessary authorities to any relevant care providers in respect of [X], including but not limited to doctors, dentists and other health care providers, and teachers and other education care providers, to enable the provision of any information sought about [X] to either parent at his or her request.
That both parties be permitted to attend [X]’s afternoon activities if they wish to do so.
That both parties shall not expose or allow any other person to expose [X] to drug and alcohol use, violence and/or any other illegal activity.
That the parties are restrained from denigrating the other party or allowing any other person to denigrate the other party within earshot of [X].
That the parties are restrained from behaving in an aggressive and/or abusive manner to the other party.
That the parties shall co-operate with each other as and when necessary in order to appoint an appropriately qualified mediator with an organisation approved by the Court, such as Unifam, Relationships Australia or Catholic Care, to medicate any future discussion between them about the parenting arrangements for [X].
That the parties do all things and sign all documents necessary to change [X]’s name from [X] VINE to [X] VINE-QUACKENBOSS.
NOTATION
That the ICL will ask Dr R to provide a letter of support to the mother in relation to her Department of Housing application.
AND IT IS FURTHER ORDERED
That the child [X] shall spend time with the Father during the Christmas Holidays in each year for one half of such period, to be taken in blocks of one week, being the first, third and fifth weeks of the Christmas Holiday period, commencing on the Saturday immediately after the last day of the school term.
That notwithstanding orders to the contrary the Mother shall spend time with [X] from 9:00am on Christmas Eve 24 December to 9:00am on Boxing Day of each year.
That until she attains the age of eight (8) years, [X]’s extra-curricular activities shall be limited to either dancing or gymnastics, with [X] to be enrolled at a school nominated by the Mother.
That both parties shall use their best endeavours to ensure that [X] attends all commitments relating to her extra-curricular activities including but not limited to dancing lessons subject to Order (21) above, rehearsals, performances, examinations and competitions.
That if one parent is unable to take [X] to any of the events set out in Order (22) above and in particular to dancing lessons on Saturday subject to Order (21) above, then they are to notify the other party within sufficient time to enable the other party to be given the opportunity to take her to such activities.
That the parties shall use their best endeavours to take [X] to such birthday parties a shave been arranged and in this respect each party will provide a copy of the details within enough time to allow the parent with whom [X] is spending time to take her to such party.
IT IS NOTED that publication of this judgment under the pseudonym Vine & Quackenboss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 236 of 2010
| MS VINE |
Applicant
And
| MR QUACKENBOSS |
Respondent
REASONS FOR JUDGMENT
Application
The matter before the Court concerns the parties’ daughter, a little girl who is six years old. [X] was born [in] 2004. [X] and her sister live with the Mother and the maternal grandparents.
The parties have agreed to a number of important orders relating to [X] and a memorandum of Consent Orders has been submitted. Unfortunately, they have not agreed to everything and there are a number of ancillary matters yet to be decided. Try as they might, the parties have not been able to agree about these matters, even with the assistance of their lawyers and the Independent Children’s Lawyer.
The Court also has the benefit of a report, entitled “Medico-Legal Report”, by Dr R, an experienced psychiatrist. Unfortunately, the good doctor appears to be under the misapprehension that he has prepared the report for the Family Court of Australia rather than the Federal Magistrates Court, but the report is otherwise very helpful. Dr R was not required for cross-examination and the parties have accepted his report for the helpful document that it is, even though their counsel have both pointed to parts of the report which they submit assist their particular client’s case.
It is important that the matters to which the parties have consented should appear as consent orders, because the parties should be given the credit for agreeing to orders that they see will be in the best interests of their daughter, even though their personal wishes may be otherwise. The parties are aware that 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, s.60CA).
Orders to which the parties have consented
The parties have agreed to consent orders on the following major issues, which I will summarise:
a)That all previous orders be discharged;
b)That [X] should continue to live with the Mother;
c)That the Mother have sole parental responsibility for [X];
d)That [X] should spend time with the Father:
i)On alternate weekends;
ii)On Wednesday night of the off week;
iii)For the first week of the shorter school holidays;
iv)At times yet to be decided during the Christmas school holidays;
v)On Boxing Day and the day after Boxing Day each year;
vi)On Fathers’ Day;
vii)On her birthday; and
viii)At other times to be agreed.
e)Changeover for weekend and off week Wednesdays will be at the child’s school.
f)School holiday changeover will involve the Mother delivering the child to the Father’s residence and the father delivering her back to the Mother’s residence;
g)If [X] is with her father on Mothers’ Day, then she will go to her mother from 9:00am to 6:00pm;
h)If [X] is spending time with her father on her birthday, then she will spend time with her mother as well;
i)The parties are to keep each other informed about their respective addresses and telephone numbers;
j)The parties may call telephone [X] each evening when she is with the other party;
k)The parties will advise each other about [X]’s health;
l)The parties will authorise medical and education care providers to inform the other party about relevant matters;
m)The parties may each attend [X]’s out of school activities;
n)They will not expose the child to drug or alcohol use, or violence or other illegal activity;
o)The parties are restrained from denigrating each other within earshot of the child;
p)The parties are restrained from behaving aggressively or abusively to each other;
q)The parties will cooperate in appointing a mediator to mediate any future discussion about parenting arrangements; and
r)The parties agree to a change to [X]’s name so that she has a hyphenated surname, incorporating both parties’ surname.
The consent orders are set out, although it has been necessary to re-number Orders 14 to 19, as the proposed Order 13 has not been consented to by the Independent Children’s Lawyer. Thus, orders 14 to 19 will appear as Orders 13 to 18. It has been necessary to modify the proposed Order 14, as it refers to the activities described in the disputed Order 13, so that it makes sense as a discrete order. The word “the” before “activities” has been deleted and the words “[X]’s afternoon” have been added. As a result, the new Order 13, formerly Order 14, now reads:
That both parties be permitted to attend [X]’s afternoon[1] activities if they wish to do so.
[1] Emphasis added
Issues to be decided
The matters still to be decided by the Court, whilst relatively minor compared to the major decisions taken by the parties, are nevertheless important to the parties, because they concern day to day issues which the parties need to know when dealing with each other and with their child. They are not trivial matters; they are immediately relevant and they concern the child’s best interests.
The three counsel appearing for the Applicant, the Respondent and the Independent Children’s Lawyer, submitted four documents to the Court by way of minutes of proposed orders. Those documents are:
a)The Minute of proposed consent orders, containing the 18 orders to which all parties agreed, and one order and one notation to which not all of the parties agreed;
b)A document headed “Proposal of the ICL” containing two proposed orders, to which the father consented but the mother did not;
c)A document headed “Minute of Additional Orders sought by the Applicant Mother” containing four orders, to three of which the Independent Children’s Lawyer consented but the Father did not; and
d)A document headed “Father’s Minute of Order” containing two orders. The Mother did not consent to the first order sought and neither the ICL nor the Mother consented to the second.
The minute of proposed consent orders contained a proposed order 13 that said:
That [X]’s afternoon activities be limited to no more than two afternoons per week.
The ICL does not consent to this order, and in the course of submissions it transpired that the Father did not consent, either.
There is also a notation that says:
That the parties will use their best endeavours to take [X] to such birthday parties as have been arranged and in this respect each party will provide a copy of the details within enough time to allow the parent with whom [X] is spending time to take her to such party.
The ICL does not consent to this being a notation and submits that it should be an order. The Mother consents to its being an order.
The document from the ICL, headed “Proposal of the ICL”, contains two proposed orders:
· That [X] shall spend time with the Father during the Christmas Holidays in each year, for one half of such period, to be taken in blocks of one week, to commence from week 1 in each period.
· That until the age of eight (8) years, [X]’s extra-curricular activities shall be limited to dancing or gymnastics, with [X] to be enrolled at a school nominated by the Mother.
The Father’s counsel, Mr Cook, told the Court that his client consented to both of those proposed orders. However, Ms Carr of counsel, who appeared for the Mother, said that her client did not consent to either order being made.
The document headed “Minutes of Additional Orders sought by the Applicant Mother” contains the following proposed orders:
4.4During the Christmas school holidays, in weeks three and five, from 3.00pm Friday until 3.00pm the following Friday in each of those weeks.
Neither the ICL nor the Father consents to that proposed order.
The Mother also seeks the following orders, to which the ICL consents but the Father does not:
20.That both parties shall use their best endeavours to ensure that [X] attends all commitments relating to her extra-curricular activities including but not limited to dancing lessons, rehearsals, performances, examinations and competitions.
21.That if one parent is unable to take [X] to any of the events set out in order 20 above and in particular to dancing lessons on Saturday, then they are to notify the other party within sufficient time to enable the other party to be given the opportunity to take her to such activities.
22.That notwithstanding orders to the contrary, the mother shall spend time with [X] from 9:00am on 24 December to 9:00 am on 26 December of each year.
The Father’s document, headed “Father’s Minute of Order”, seeks these orders:
1. That the child spend time with the father during Christmas school holidays for a further week in week 5 of the school Christmas holiday break.[2]
2. That when the child is spending time with the father the father will have day to day responsibility for the child and decide what activities the child shall attend.
[2] The father consents to the order sought by the ICL, that [X] spend half of each Christmas Holiday period with him in blocks of one week at a time
The Mother does not consent to the first proposed order, and neither the Mother nor the ICL consents to the second proposed order.
Submissions
I have heard submissions as to what should be the appropriate orders.
Counsel for the Independent Children’s Lawyer, Mr Auld, relied on
Dr R’s report in support of the Orders which the Independent Children’s Lawyer considers appropriate. He noted that Dr R did not believe that the Father had a stable enough personality to be able to deal with emotional issues concerning the child, or to care for her “other than contact arrangements”.[3]
[3] Medico-Legal Report dated 12th October 2010 at page 21
However, the Independent Children’s Lawyer supports the concept of week about time between the child and the Father during the Christmas school holidays, and does not believe that Dr R’s report contradicts this view.
Counsel for the Mother, Ms Carr, submitted that for a child of [X]’s age, only just six, it did not really matter whether she engaged in gymnastics or dancing on afternoons after school. What the Mother is concerned about is that a young child should not be too heavily burdened by attending activities on school nights more than twice a week.
As for dancing, the Father is opposed to taking the child to dancing on Saturdays, but the Mother submits that the Saturdays are a necessary part of the activity for the children involved.
The Mother opposes the Father having more than two single weeks of time with [X] during the Christmas school holidays because she has concerns about the Father’s capacity to look after the child for more than that time. Ms Carr referred the Court to Dr R’s Report, where he said of the father:
However, I would have concerns about him being the primary carer of [X] or even of equal share. He’s used drugs excessively and had a dependency until he had the psychosis. He has not worked since his brief psychotic illness.[4]
[4] Ibid at page 18
For the Father, Mr Cook submitted that [X], as a six-year-old, would be overstretched by doing both gymnastics or dancing after school at the same time. The activities are not seasonal, they go on all year and doing both would be too much for a little girl aged six to cope with. [X] has an aptitude for both gymnastics and dancing. The Mother wants the child to continue with the dancing and the Father is happy for her to drop the gymnastics at this stage.
However, the Father is reluctant to commit to taking the child to dancing on a Saturday morning. He does not have a Driver’s Licence and has to rely on his mother, who is aged 70, to do the driving. To attend the dancing class involves a long drive of 40 minutes each way. Dancing class starts at 9:00am on Saturdays. The Father will not say that he will not take the child, but the regular commitment on a Saturday morning means that he cannot take the child away for a weekend. His attitude is that he would take her if he is in Sydney that weekend. Like the Mother, the Father is concerned about the number of nights during the week that [X] is involved in extra-curricular activities.
Turning to the number of weeks that the child spends with the Father during the Christmas holidays, Mr Cook submitted that the Father had agreed to the Mother having the child every Christmas Day whilst he has agreed to every Boxing Day.
Week about time with the child during the Christmas holidays would solve the problem of the concerns about the Father’s ability to cope with the care of the child for any length of time. He only has to look after the child for a week at a time, which Dr R does not think unreasonable.
In his submission, Mr Cook mentioned the Father’s concern about the proposed order relating to the child’s attendance at birthday parties, pointing out that at [X]’s age invitations to other children’s birthday parties come “thick and fast”. He said that the Father would use his best endeavours to take the child to the various birthday parties to which she is invited, but there may be conflicting activities. The Father did not agree with the submission by the Independent Children’s Lawyer that the order should be made firmer by deleting the words “best endeavours” and inserting the word “shall” instead.
The Relevant Law
When deciding whether to make a particular parenting order relating to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The primary considerations in determining what is in the child’s best interests are the benefit to her in having a meaningful relationship with both of her parents and the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)). Those matters appear to have been considered by the parties in framing the consent orders.
Other matters for the Court to consider are set out in s.60CC (3) of the Act.
Normally, the Court would consider whether the presumption in s.61DA of the Act, namely that equal shared parental responsibility is in the best interests of the child (see Goode & Goode[5]). In this case, however, the parties have already agreed that the Mother should have sole parental responsibility for [X]’s care, welfare and development (see Order 3).
[5] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Conclusions
The matters to be decided need to be considered in the context of the parties’ background. Both parents have a history of having used marijuana on a regular basis. The Father has had a psychotic episode in 2006 which appears to have been drug-induced. This resulted in his hospitalisation and his subsequent withdrawal from the workforce.
It is relevant that the Father spent two years in prison after having been convicted of a serious motoring offence which caused the death of a pedestrian. The Father has not held a driver’s licence since then and is reluctant to drive again. His reluctance is understandable in the circumstances.
I have given consideration to the matters of drug use and mental illness. In my view, the consent orders are appropriate, taking those matters into account.
It is relevant that the child is still only six years old. I agree with the submissions that her after-school time should not be entirely taken up with other activities. At this age, it is advisable for the parties to decide whether dancing or gymnastics should be her after-school activity. She appears to be good at both, and it may be that whichever one she drops at this stage can be taken up again in two years’ time, when she turns eight. They are both time-consuming activities, requiring two afternoons a week, plus the Saturday morning in the case of dancing.
Whatever activity [X] is to follow, she ought to be able to do it properly, which means that it will be necessary for her to attend dancing classes on Saturday mornings. This may not be convenient for the Father, but the primary consideration must be the child’s best interests. There are some limitations on the Father’s ability to transport the child, as he does not have a driver’s licence. Bearing in mind the Father’s history, I do not consider that it is reasonable to require the Father to obtain a driver’s licence. This means that he has to rely on his mother to drive the child to and from dancing. If she is ill, or otherwise unable to attend to the driving one Saturday, the Father should inform the Mother, so that she may decide whether she will take [X] to dancing.
The Father is also concerned about birthday parties, which can be a major social activity for a six-year old. However, I consider that to be necessary burden for the parents to undertake. Whilst they may come “thick and fast” at that age, as Mr Cook submitted, their number and frequency will diminish over the years, as the children become older and are more selective in the number of invitations that are issued.
It is appropriate to make an order that the parents should use their best endeavours to take their daughter to these birthday parties, so that she can socialise with her peers. I am not prepared to accept the suggestion advances by Mr Auld of counsel that the word “shall” should be used instead of the phrase “use their best endeavours”, as I consider that to be too onerous on the parties. Sometimes, with the best will in the world, it may be too difficult to arrange.
The big issue to be decided, however, is whether the Father should spend two weeks with the child during the Christmas/January school holidays, as the Mother submits, or three, which is his view. The proposal is for the Father to have three weeks, in individual blocks of one week. This does not seem to be too onerous, as the Father would only have the child for one week at a time. I understand that Dr R does not counsel against such a proposal.
I propose to order that [X] does spend a total of three weeks with her Father for half of the Christmas/January school holiday period, to be taken in blocks of one week at a time, being the first, third and fifth weeks of the holidays. This will mean that she will spend holiday time with her father on a week about basis, which should assist her in building up a strong relationship with him. It is in the child’s best interests to have a meaningful relationship with both of her parents, and this week about proposal should assist in meeting that aim (s.60CC(2)(a)).
In my view, spending time with her father for periods of a week at a time should not expose [X] to any risk of physical or psychological harm from abuse, neglect or family violence (s.60CC(2)(b)).
The wishes of the child, so far as they are relevant, have been obtained from Dr R’s report at pages 14 and 15. Encouragingly, [X] reported positively about both parents:
I asked her about her wishes. She said that she wanted to go swimming. She said she likes staying with bother her mother and father. ‘I am happy’. I asked her if anything bad had happened to her. She denied she’d ever been hurt or touched in a bad way except she had fallen over and scratched her knee. She said her father makes her laugh. Then suddenly as if she remembered that she was meant to say something, she added unnaturally, ‘I wish they lived together. I want to spend more time with dad and mum. I want to have the same time together. I don’t get enough time with daddy. Daddy wants to take me to the snow that’s why I don’t get enough time with daddy’.[6]
[6] Medico-Legal Report 12 October 2010 at 14-15
Whilst Dr R’s comment would suggest that he was suspecting that the child may have been coached, he did not give oral evidence so the Court cannot do more than take his comments at face value.
I am satisfied that the child has a good relationship with both parents and wishes to spend time with each of them. These orders are designed to do just that.
It is to be hoped that these orders will be least likely to lead to the institution of further proceedings in relation to the child.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 26 October 2010
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