Vine and Wands
[2012] FMCAfam 1407
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINE & WANDS | [2012] FMCAfam 1407 |
| FAMILY LAW – Children – parenting – interim orders – application to vary earlier consent orders – best interests of the child – child aged three years living with the mother. |
| Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 67Q, 68L Crimes (Domestic and Personal Violence) Act 2007 (NSW), s.16 |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS VINE |
| Respondent: | MR WANDS |
| File Number: | SYC 638 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2012 |
| Date of Last Submission: | 12 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Bainbridge |
| Solicitors for the Applicant: | Bainbridge Legal |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor |
| Independent Children’s Lawyer: | Mr O'Dowd |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
All previous parenting Orders in relation to the child [X] born [in] 2009 are discharged SAVE AND EXCEPT for the Order made on 10 October 2012 appointing the Independent Children’s Lawyer.
The child [X] is to live with the Applicant Mother, who is to have sole parental responsibility for the child.
The child [X] is to spend time with the Respondent Father:
(a)Each alternate weekend from the conclusion of day care on Thursday commencing on Thursday 20 December 2012 until no later than 10:00am on the following Monday;
(b)In any one calendar year starting in 2013 the time spent by the father with the child [X] is to be increased on two (2) periods to be from the conclusion of day care on Thursday until the commencement of day care on the following Thursday PROVIDED THAT the Father gives the Mother twenty-one (21) days notice in writing of his intention to exercise this extended time with the child and that such extended time shall not occur within three (3) months of the previous extended time nor occur at Christmas or over Mother’s Day;
(c)In the event that [X] would not otherwise be spending time with the Father on Father’s Day then on the weekend including Father’s Day from the conclusion of day care on the Thursday prior to Father’s Day until no later than 10:00am on the Monday immediately after Father’s Day in which case the next occasion that the Father spends time with [X] will commence at the conclusion of day care on the second Thursday after Father’s Day; and
(d)At all other times as the parties shall agree in writing.
In the event that [X] would not otherwise be in the care of the Mother on Mother’s Day then the child’s time with the Father in accordance with Order (3)(a) is suspended from the Thursday prior to Mother’s Day until the Monday immediately after Mother’s Day in which case the next occasion that the father spends time with [X] will commence at the conclusion of day care on the Thursday immediately after Mother’s Day.
In the event that the Father does not by 12 noon on the Tuesday prior to the Thursday when he is to spend time with the child in accordance with Orders (3)(a) and (3)(b) provide the Mother with a copy of return airline tickets for himself and [X] for the period when he is due to spend time with the child in accordance with the Orders then that time with the child is deemed to be vacated and the Mother is under no obligation to provide any compensatory time with the child.
The Mother and father are restrained by injunction from:
(a)Denigrating or criticising each other or any member of each other’s family in the presence or hearing of the child [X];
(b)Changing [X]’s primary residence from within the Sydney Metropolitan area without the written consent of the other parent or further Order of the Court;
(c)Using any contacts they have [omitted] to ascertain personal or work-based information about the other parent; or
(d)Communicating with each other via text messages other than for the purpose of ensuring compliance with these Orders.
At first instance all changeovers in accordance with these Orders are to take place at the child [X]’s day care centre with the Father to arrive and collect the child no earlier than 5:00pm and return the child to his day care centre no later than 10:00am and in the event that the day care is not open during a changeover period then the alternate location for changeover is the McDonald’s Family Restaurant at [address omitted] New South Wales.
The Father is restrained by injunction from attending any day care centre that [X] attends other than for the purpose of changeover in accordance with these Orders.
In the event that [X] suffers any illness or injury while in the care of either parent then that parent must as soon as practicable inform the other parent and keep the other parent informed of the child’s medical condition.
The Mother must do all acts and things necessary to ensure that the Father’s contact details are provided to any day care centre where the child [X] is enrolled and the Mother must forthwith provide the child’s day care centre with a copy of these Orders.
Within fourteen (14) days from the date of these Orders the Mother and Father are to do all acts and things and sign all documents necessary to enrol in a Parenting after Separation course with a minimum duration of six (6) weeks attendance and upon both enrolment and completion inform the Independent Children’s Lawyer and other parent of the enrolment and completion details.
The parents must maintain a document known as a Parenting Book to enable exchange of information about [X]’s care, welfare and development while the child is in their care, such Parenting Book is to follow the child and be exchanged at changeover.
The parents are to attend upon a Family Consultant at such times and place as they may be required by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of s.62G of the Family Law Act 1975 on all matters relevant to the care, welfare and development of the child [X] born 18 December 2009.
IT IS NOTED that publication of this judgment under the pseudonym Vine & Wands is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 638 of 2011
| MS VINE |
Applicant
And
| MR WANDS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a little boy called [X] for interim orders varying the parenting Orders that were made by consent in this Court on 8th June 2011. [X] was born [in] 2009 so he is just about to celebrate his third birthday.
The Father in his Response seeks very different orders.
The Independent Children’s Lawyer has provided a Minute of Proposed Orders intended to benefit the child in the interim period until the matter can be finalised.
Orders Sought
The Mother, by her Amended Application, seeks interim orders that:
a)the child should live with her and spend time with the Father on the first weekend of every even-numbered month;
b)the time should be contingent upon the Father giving the Mother not less than 72 hours prior notice;
c)changeover should be at the McDonalds Restaurant at [M], New South Wales; and
d)the parties should be restrained from molesting, harassing or abusing each other.
The Father has filed a Response, seeking:
a)sole custody of the child; and
b)that the Mother attend anger management, conflict resolution and parenting after separation courses.
The Independent Children’s Lawyer’s Minute of Proposed Orders is quite lengthy. It proposes that:
a)all earlier parenting orders should be discharged;
b)the child should live with the Mother and should spend time with the Father:
i)on alternate weekends from the conclusion of day care on Thursday to no later than 10:00am on the following Monday;
ii)two blocks of seven days (six nights) in 2013;
iii)10:00am to 5:00pm on Father’s Day; and
iv)Other times as agreed.
c)The Father giving the Mother notice of his intention to spend time with the child not later than 12 noon on the Tuesday prior to the Thursday when his time with the child should commence and, if not, the Father’s time would be deemed to be vacated;
d)Mutual non-denigration orders;
e)Changeovers should take place at the child’s day care centre or, if it is not open, than at [M] Police Station;
f)The parties should attend a parenting after separation course;
g)The parties should maintain a Parenting Book containing information about the child that would travel with the child;
h)A family Report should be ordered; and
i)The proceedings should be listed for final hearing with an estimated length of three days
Background
The parties commenced their relationship in July 2008 and began living together in March 2009. There is a difference in their ages, as the Father is now 32 years of age, having been born [in] 1980 and the Mother is exactly 23 years old. Her date of birth is [omitted] 1989.
The Mother was at the time, and still is, [occupation omitted]. The Father was a [occupation omitted] but [ceased that occupation] in November 2010. He then worked as a [omitted], although he has since commenced work with [omitted].
The parties’ son, [X], was born [in] 2009.
The parties separated on or about 15th November 2010 after incidents that occurred on 13th and 14th November 2010. A Provisional Apprehended Domestic Violence Order was made on 21st November 2010. The Father was charged with three counts of common assault and two counts of sexual intercourse without consent on 29th November 2010. These charges did not proceed.
The Father commenced proceedings for parenting orders on 4th February 2011.
On 2nd March 2011 the parties entered into Interim Consent Orders providing that the child [X] should live with the Mother and spend time with the Father.
The parties entered into final consent Orders on 8th June 2011. Those orders provided that the child should live with the Mother and spend time with the Father in a two weekly cycle:
a)in the first week from 7:00am on Friday until 9:00am on Sunday; and
b)in the second week from 7:00am on Thursday until 9:00am on Saturday.
The child was also to spend two periods of four days each with the father.
That arrangement was to continue until the child attained the age of two years, which he did on [date omitted] 2011. Once that occurred, the child was to spend four periods of seven nights with the Father, until the child started school.
On 14th September 2011 the Local Court of New South Wales at the Downing Centre, Sydney, made an Apprehended Domestic Violence Order against the Father under the provisions of s.16 of the Crimes (Domestic and Personal Violence) Act 2007. The Order was in force for 12 months.
On 9th October 2012 the Mother filed an urgent Application for a Recovery Order under the provisions of s.67Q of the Family Law Act. The Application was returnable the following day.
On 10th October 2012 the Father was ordered to return the child to the care of the Mother within 24 hours. The parties were directed to attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act, and an order was made under s.68L of the Act that the interests of the child [X] should be separately by a lawyer.
The Father filed an affidavit on 10th October 2012 in which he claimed that he did not take return the child to the mother in Sydney because of his serious concerns about the child being at risk of abuse in the Mother’s care. He detailed in his affidavit accounts of observing bruises on the child’s body, which he attributed to the Mother.
On 31st October 2012 the Father filed a Response and a short further affidavit.
The Mother filed a further affidavit on 20th November 2012.
Each party has formed another relationship.[1]
[1] Affidavit of Mr Wands 10.10.2012 at paragraph [20]
Submissions and Evidence
The parties relied on their affidavits. The Mother’s Lawyer, Mr Bainbridge, tendered some material that had been produced on subpoena from the child’s day care centre.
The Independent Children’s Lawyer submitted that the Orders made by consent on 8th June 2011, at a time when the child was very young, should not be reinstated. He noted that the Father had moved to Brisbane and had subsequently made a unilateral decision to take the child to retain the child in Brisbane and not return him to his mother because of his concerns about the child’s welfare.
Mr O’Dowd stated that since the Father’s move back to Brisbane the Mother had been flying to Brisbane and back with the child each week (which was not agreed) and said that this practice should stop. He submitted that [X]’s time with his father should be block time.
The Independent Children’s Lawyer noted that the relationship between the parties was extremely poor. There should be a reduction in communication between the parties, which is acrimonious.
On the question of parental responsibility, Mr O’Dowd submitted that it was not appropriate to apply the presumption in s.61DA(1), relying on s.61DA(3) of the Act.
It was further submitted that changeovers were a cause for concern, and the Independent Children’s Lawyer took the view that, as far as possible, changeovers should take place at the child’s day care centre, to reduce the amount of fact to face contact between the parents. He noted that, whilst the child was currently attending two separate day care centres, in 2013 he would be spending all his time at the one centre.
Where changeover could not take place at the day care centre, he proposed that it should take place inside the [M] Police Station.
Essentially, it was submitted that the child should spend a block of four days each fortnight with his father. The child should spend Christmas 2012 with his mother.
Mr Bainbridge, for the Mother, submitted that the Consent Orders made in June 2011 had been a failure and were a mistake, in retrospect. There was no evidence to support the Father’s position that the child should live with him. He referred to the Mother’s concern that the child had returned from spending time with his father using swear words.
It was the Mother’s position that the frequency of the child’s time with the Father should be reduced. It was not the case that the child had been going to Brisbane every week, contrary of the opinion of the Independent Children’s Lawyer. Weekly visits to Brisbane would be untenable, and fortnightly visits would not be much better.
The Mother has concerns about losing the subsidy she receives for day care, which would effectively double what she is currently paying. She wishes to keep the Father away from the child’s day care centre. She would prefer the changeover location to be the McDonald’s Restaurant at [M].
It was submitted on behalf of the Mother that the presumption of equal shared parental responsibility did not apply because of the previous family violence.
The Father told the Court that he agreed with the Independent Children’s Lawyer, which was a different position from that set out in his Response. He said that he had not missed a weekend seeing the child until he relocated to Brisbane.
He reiterated his concerns about his son showing bruising and blisters. He said that he was trying to bring this to the attention of the proper authorities.
The Father said that the airline flights for the child and an accompanying parent were not a drain on his finances. As an employee of an airline he was able to travel quite cheaply and he also received a travel allowance of $1,000.00 as a work benefit.
The Father seeks an order that the parties should have equal shared parental responsibility for the child, as he believed that the Mother was trying to distance him from his son.
The Relevant Law
Section 60CA of the Family Law Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The matters in subsection 60CC(2) are the primary considerations and concern:
a)the benefit to the child of having a meaningful relationship with both parents; and
b)the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Greater weight must be given to the consideration about the need to protect the child from harm set out in paragraph (2)(b) (see subsection 60CC(2A)).
Family violence is also referred to in the additional considerations set out in s.60CC(3). Paragraph (3)(j) refers to “any family violence involving the child or a member of the child’s family”. Paragraph (3)(k) refers to family violence orders.
The term “family violence” is defined by section 4AB of the Act:
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
The term “family violence order” is defined by s.4 of the Act:
family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
An Apprehended Domestic Violence order made by the Local Court of New South Wales under the provisions of s.16 of the Crimes (Domestic and Personal Violence) Act 2007 is a family violence order under s.4 of the Family Law Act.
Subsection 61DA(1) of the Family Law Act requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, under subsection 61DA(2) of the Act, the presumption does not apply in cases where there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or another child, or has engaged in family violence.
Subsection 61DA(3) provides that:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
It is noteworthy that s.61DB of the Act provides that if there is an interim parenting order in relation to a chi8ld, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.
Conclusions
All of the matters in sections 60CA, 60CC, 61Da and 61 DB have been considered.
It should be made clear at the outset that, although allegations of family violence figured quite prominently in the affidavits leading up to the making of the Consent Orders on 8th June 2011, there are no current allegations of family violence. There are, however, on the Father’s side, allegations that the Mother has abused the child. These allegations have not been established and are denied by the Mother. However, family violence is one of the additional considerations for the Court under paragraph (3)(j) of s.60CC(3).
Again, paragraph (3)(k) requires the Court to take notice if a family violence order applies, or has applied, to the child or a member of the child’s family. In this case, there is no current family violence order, but an Apprehended Domestic Violence Order was in force for 12 months until September 2011.
The communication between the parties is poor and acrimonious. In my view, the Court should apply the provisions of subsection 61DA(3) and find that the Court considers that it would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied when making these Orders, which are interim orders.
An order will be made until further order that the Mother is to have sole parental responsibility for the child. This matter will be considered afresh when the Court is making final parenting orders.
It seems clear that the orders made by consent on 8th June 2011 have not been successful and should be vacated. The very circumstances where the matter has come back to Court with the Mother initially seeking a recovery order after the Father retained the child, claiming abuse, make it clear that the Court should look at the parenting question again.
The Family Consultant Memorandum of 10th October 2012, after the parties attended a Child Dispute Conference, refers to family safety factors of:
a)the previous Apprehended Domestic Violence Order;
b)the Mother’s claim that there are further proceedings against the Father;
c)the Mother’s allegations that she was subjected to physical, sexual and verbal abuse by the Father during the relationship and her claims that the Father has stalked her and threatened her since the separation; and
d)the Father’s allegations of mutual verbal abuse during the relationship,
all call into question the need to protect the child from physical and psychological harm. This is also accentuated by the Father’s expressed concerns for the child’s physical safety.
The Family Consultant described these issues impeding resolution:
· Highly mistrustful parental relationship
· Poor communication
· Divergent history about the nature of the parental relationship.
All of these matters lend weight to the submissions of the Independent Children’s Lawyer. The Court cannot make definitive findings of fact on issues where the parties’ accounts differ, as has been noted by the Full Court of the Family Court in Goode v Goode[2]. However, the obviously poor level of communication and the high level of antagonism of the parties strongly indicates a need for the parties to reduce their communication to a minimum, to avoid as far as possible face to face meetings at changeover, and for the child to spend some stable time with his mother and spend separate blocks of time with his father.
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The most desirable changeover point is the child’s day care centre, despite the Mother’s contrary view, because it effectively keeps the parties at arms’ length on most occasions. The Mother prefers the McDonald’s Family Restaurant at [M]. I am of the view that this should be the alternative changeover point when the day care centre is unavailable, rather than the [M] Police Station.
The Mother’s proposed orders restricting the Father’s time with the child to one block of time every two months do not appear to be necessary, and may not be in the child’s best interests, bearing in mind that a gap of about seven weeks between occasions of spending time with his father is a very long time for a little boy who is just about to turn three years of age.
I propose to order a Family Report.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 17 December 2012