WALLACE & MAY
[2016] FCCA 1364
•11 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALLACE & MAY | [2016] FCCA 1364 |
| Catchwords: FAMILY LAW – Children – Parental responsibility – presumption of equal shared parental responsibility – Mother and Father each seeking sole parental responsibility – order for parents to have equal shared parental responsibility. FAMILY LAW – Children – With whom a child spends time – not in the child’s best interest for equal time – Order for significant and substantial time – Previously Father’s time has been supervised – father’s time forthwith be unsupervised. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: MRR v GR [2010] HCA 4; (2010) 240 CLR 461 |
| Applicant: | MR WALLACE |
| Respondent: | MS MAY |
| File Number: | SYC 4150 of 2013 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 8-10 February 2016 |
| Date of Last Submission: | 10 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper of Counsel |
| Solicitors for the Applicant: | Ciaglia Legal Solicitors & Attorneys |
| Counsel for the Respondent: | Mr Malevski of Counsel |
| Solicitors for the Respondent: | Prestige Solicitors & Associates |
ORDERS
That the parents have equal shared parental responsibility for the child X, born (omitted) 2011.
That the child lives with the mother.
The father spend time with the child as follows:
a)each Saturday from 9 am to 5 pm and all daytime is to be unsupervised forthwith, such time to commence 13 February 2016;
b)in addition, each alternate Thursday, commencing 18 February 2016 from 3 pm to 7 pm;
c)commencing 2 April 2016, from 9 am to 5 pm each alternate Saturday and Sunday;
d)commencing 11 June 2016, every second Saturday from 9 am Saturday to 5 pm Sunday.
e)commencing 29 September 2016, every second Friday from 6.30pm to Sunday, 5 pm.
The father is to provide to the mother with a letter from his employer within 7 days that he is able to collect the child from school or be available at his home at 3 pm each alternate Thursday, otherwise the Orders for time on Thursday will cease.
In the event the letter from the father’s employer indicates that the father is able to collect the child from school at 3 pm each alternate Friday, the father’s time will commence from after school Friday when the child commences formal education in 2017.
To effect changeover that is not from school or preschool, the mother or her nominee is to deliver the child to the father at his home and the father is to return the child to the mother.
The father is to return the child to the mother on Thursdays, having been fed, bathed and ready for bed.
The father’s first period of overnight time is to be supervised by the paternal grandmother for the first six occasions. Thereafter, all overnight time is unsupervised.
In the event the father is late by 10 minutes or more to collect the child from school or is not at his home at 3 pm Thursday on two consecutive occasions, the Thursday time will be suspended.
Commencing the child’s second term of school in 2017, the father’s alternate Thursday time to be extended to before school Friday each alternate week.
In relation to holidays, the child is to be with the father from 3 pm Christmas Day 2016 to 7 pm Boxing Day.
In the first term of 2017, the child to spend three nights in the father’s care, being an extension of his regular alternate weekend time, commencing from Thursday of the school holidays.
In the second and third term of the mid-term school holidays, the child to spend four nights in his father’s care, being an extension of his regular alternate weekend time, commencing Wednesday, or as otherwise agreed between the parents.
The child to spend, for the 2016/2017 Christmas school holidays, time with his father from 10 am Christmas Eve to 3 pm Christmas Day and for two further periods as agreed of no more than six nights duration in his father’s care.
In 2018, the child is to spend one half of the mid-term school holidays with each parent as agreed, and the father’s alternate weekend time is thereafter suspended in all school holiday periods.
In 2018/2019, the child to spend two weeks with his father as agreed and to be with his mother from 10 am Christmas Eve to 3 pm Christmas Day, and the father 3 pm Christmas Day to 7 pm Boxing Day, with Christmas time to alternate each year thereafter.
Commencing 2019/2020 and thereafter, the child to spend one half of all school holiday periods with his parents or as agreed.
IT IS NOTED that publication of this judgment under the pseudonym Wallace & May is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4150 of 2013
| MR WALLACE |
Applicant
And
| MS MAY |
Respondent
REASONS FOR JUDGMENT
The matter of Wallace & May, is a parenting application concerning the parenting arrangements for the child X, born (omitted) 2011. The father was represented by Mr Harper of Counsel and the mother Mr Malevski of Counsel.
The evidence read was as follows.
a)For the father
i)Initiating application filed 23 July 2013,
ii)Affidavit of Mr Wallace 2 February 2016,
iii)Affidavit of the paternal grandmother, 8 February 2016,
iv)Affidavit of the paternal uncle, Mr P, 18 March 2014.
v)Exhibit 1 was the proposed orders handed to the Court on 8 February 2016,
vi)Exhibit 2 was the proposed orders handed to the court on Tuesday and his Counsel’s case outline.
vii)The father and grandmother were cross-examined.
b)For the mother,
i)Response to an application in a case, she not having filed a final response, dated 11 September 2013,
ii)Affidavit of 2 February 2016,
iii)Affidavit of the maternal grandfather, 2 February 2016.
iv)Only the mother was cross-examined.
v)Mother’s exhibits
vi)Exhibit 1 orders sought and handed to the Court on Monday,
vii)Exhibit 2 orders sought on Tuesday,
viii)Exhibit 3 orders sought on Wednesday.
ix)A family report released in December 2014 and prepared by Ms K marked Court exhibit 1.
Short Chronology
The mother was born in (omitted) 1982 and the father in 1983
The parents commenced living together in (omitted) on (omitted) 2011.
X was born on (omitted) 2011.
The first period of separation occurred in November 2012 when the mother left the home and moved into a property at (omitted).
The parties entered into a parenting plan up until January 2013
The relationship finally ended on 8 March 2012.
The Court made orders on 12 September 2013 for the child to spend time with his father on a Saturday supervised, ultimately by the mother and lately by the maternal grandfather.
X was hospitalised in April 2014 with asthma.
The child has been spending time with his father supervised by the paternal grandfather for the last 12 months.
Issues
Despite X being four and a half years of age and having spent two years of time with his dad, his time is still supervised and is daytime only.
The issues for me are as follows:
a)whether I rebut the presumption of equal shared parental responsibility;
b)whether the father’s time continue to be supervised;
c)when if at all time with the father is to include overnight time;
d)and, if so, the timing of overnight time, holiday time and the like;
e)the child’s name.
Ms K prepared a report Court exhibit 1. In that report she made recommendations which are now 12 months old. These recommendations commence at paragraph 33 of her report.
That the parents have equal shared parental responsibility.
That X’s time be unsupervised and be increased from three hours to four hours a week, then to a full day each week and over a period of six to eight months to move to overnight time initially for one night a fortnight and one day in the alternate week.
That in 2016 X to spend block periods of time with his dad initially three nights increasing to five so that when he commenced school, there would be significant and substantial time between the child and his father .
These recommendations were made 12 months ago. X has not spent any time unsupervised with his father let alone overnight or block time since then.
The mother seeks sole parental responsibility and that the father spends daytime only with the child unsupervised. The mother does not favour any overnight time.
Despite this now being the mother’s position X continues to spend only supervised time with his father.
Ms K also recommended at paragraph 31 of her report that the mother would benefit from professional assistance to ensure she is able to actively support X in a move to new care arrangements as Ms K opined that the mother had significant concerns about the child moving from unsupervised time. These concerns were still evident at this hearing and are alive for her.
At paragraphs 29 and 28, Ms K says:
“The relationship with X and his father seems to be one where X feels secure and confident. Mr Wallace’s time with X ought to now be able to move to being unsupervised.”
Ms K said when he moved from unsupervised time perhaps his paternal grandmother or Uncle could be there to allay the mother’s concerns for a short period of time. Further that if overnight time occurs, perhaps it should happen at the grandparents’ home in (omitted) for a time.
Ms K said that the father’s proposals for a gradual increase in his time with X’s and a delay to overnight time were appropriate. She opined at paragraph 30 that when parents have not lived together and they separate when a child is young, mistrust is very difficult to deal with. However she noted that X had developed a comfortable and confident relationship with his father despite the constant presence of either his maternal grandfather or mother. The father’s evidence at the hearing which I accept was since time has been supervised by his mother, that confidence and comfortable relationship has further grown and strengthened and that would not be unsurprising.
Ms K observed at paragraph 23 that:
“X happily accompanied his father to the waiting area to collect his mother for her observation with him. The play between X and his mother almost mirrored that of him and his father. There was close physical proximity, good eye contact and X and his mother were engrossed in the game they were constructing, which followed on from the theme of his and his father’s zoo.”
The mother says the father lacks the basic day-to-day skills to parent the child, the putting on of sunscreen and hats, getting him off and on a train and other public transport safely and that he does not really understand what is suitable food for a child. There is much complaint in the grandfather’s affidavit of the father buying the child fruit salad for lunch which was inappropriate. That the father is careless and leaves the child and attends to his own activities at a shopping centres and the like.
The mother’s real and underlying concern is set out in the child dispute memorandum and obliquely in her affidavit, more particularly in her oral evidence in Court and is reported at paragraph 17 and 18 of the family report where she tells Ms K:
“Ms May continues to express concern that Mr Wallace is easily distracted by other children when he is spending time with X, particularly teenage girls. She, however, reacted positively to what she heard of the playful and game focussed interactions between X and his paternal family saying that she felt a sense of ‘relief’ that X seemed to be relaxed and happy with his father.”
At paragraph 18, the mother raised her concerns about Mr Wallace’s alleged preoccupation with adolescent girls and linked this to his dismissal from the (employer omitted). No such evidence was tendered at the trial and I reject her assertion.
In the child dispute memorandum dated 3 February 2014, the Family Consultant says :
“The mother raised a number of concerns about the father as a role model and parent. She alleges he told her that, when he was 17 years of age he had a “relationship” with an 11 year old girl whom, she further alleges, he remained in contact well into their relationship. She also alleges that he was dismissed from his position as a (occupation omitted) in 2010 as a result of inappropriate contact/conduct with female (omitted). The father asserts that there is a “paranoid” aspect to the mother’s allegations and said that he is happy to provide the Court with information about his dismissal from the (employer omitted). The mother said the maternal grandfather has reported to her that, when the father is spending time with the child, the father seeks to interact with other young children in public places and allows the subject child to wander off.”
I accept the mother has a deep-seated concern which is continuing as to the father’s lack of boundaries with young people. This concern came out in cross-examination. The mother had a genuine fear that the father had lack of appropriate boundaries with young children and said:
“I am fearful X may be used as bait.”
That is, X would be bait to lure young girls to the father’s trap. The mother was emotional when giving this evidence. I accept her fears are genuinely held.
I share the mother’s concerns that early in X’s life he had a significant deficit in hands on parenting capacity. His evidence about sunscreen was less than impressive. He did not think it needed to be put on in winter, only in summer. That view is erroneous. I was unimpressed that the first time he had taken X on a train he merely held his hand and was not close enough to him to realise the gap between the train and station is large for a small child. Taking the child out of the car on the driver’s side on a road is clearly something a thinking parent would not do yet he has done this. These are all matters the father agreed he had done or believed were correct in cross examination. However, those issues, when they have been raised, have been heeded by the father. X is now toilet trained and the father was well able to recite a list of appropriate food he feeds his son for lunch and dinner.
I share the mother’s concerns regarding the father’s lack of insight into children’s emotional needs. For example, when X was two and a half years of age the father described buying him Lego for Christmas. It turned out it was his Uncle Mr P who purchased it. It was rather expensive according to the father. X was very fond of it but the father would not allow him to take the set to his mother’s home. It had to stay with his father. When I put to the father that once you give a gift it is given and can be taken otherwise it is not a gift I was satisfied that he realised he had been unfair to his son. Additionally there was some perplexing evidence by the father of having purchased a second Lego set for X to play with at his mother’s home but the set had been given away to another child. I agree there are some issues about the father’s lack of understanding of emotional needs of a young child.
Neither parent spoke positively about the other in their material. It was all negative. The father has never complained about the mother’s parenting of this child and he could not for she is an excellent parent.
Under cross-examination the mother’s answers demonstrated she was insightful, reflective and clearly in tune to her son’s needs and far more positive about the father than her affidavit material would have led me to believe. The mother said it was important X had a relationship with his father that he knew his father and she was pleased he had a father. What the mother really wants is to be assured that X is safe in his father’s care.
The father has done very little to allay the mother’s concerns, some of which are genuine because he retreats into his shell or feels he is being dismissed or in some way overborne. He could have done many things in the last two years to assure the mother that their child was safe in his car by at minimum, telling her what he and X did when they were together, discuss issues in a communication book, via a text message or an email. He tells the mother nothing of what they do with their time together, what the child has eaten, whether he had a nap, the activities they engage in, or how he was on the day. The mother does not want to know chapter and verse of what occurs but she would have loved to have known that they went to a particular place so she could have perhaps shared that experience with her son.
The father does not actively seek health information or seek information on his son’s health from the mother. He knew he was admitted to hospital in 2014 with asthma. Did he follow that up? No, he did not. Should the mother have given him a regime of his asthma treatment? Of course she should have but the father is a sentient adult. He is perfectly capable of following that up. He did nothing. It is something he and the mother should have discussed.
The father is somewhat passive in his demeanour and appears defeated at times. He appeared that way in the witness box at time namely defeated by the maternal family who have a very different approach to parenting and are very different people to him.
Ms K at paragraph 16 picked up this theme, where she says:
“The mother presents as a protective parent. Despite the period of supervised contact she perceives that the father lacks appropriate awareness of a young child’s needs. She is critical of the Father not bringing a hat, sunscreen or appropriate food for him. She believes he often undermines her approach to X wearing a hat in the sun.”
On the other hand the mother did not demonstrate any significant insights into the restrictions the father might feel due to the supervisor being her or the paternal grandfather and this is something the mother did not pick up on. Supervision is artificial and it is hard to be as you may wish when another adult is watching your every move particularly if you perceive a degree of negativity of you from that supervising adult which is clearly the case here.
The mother complains that that father did not hug the child, was not demonstrative with him. However given his time was being supervised by her and for the last 12 months by her father this is not surprising. I detected a strong sense of the father being compromised in being himself with his child to avoid being further criticised. This results in the father retreating into his shell which is exactly the opposite of what the mother needs and exactly the opposite of what X needs. He needs to step up and tell this triple-A mother what is going on with him and his son, what they have done, the activities they have enjoyed and any other important and relevant matters. It is unhelpful to hide that the child had a toileting accident and you had insufficient underwear whilst at a shopping centre. These things happen and you tell the mother what happened, otherwise she may think the worst. If the father can assure the mother that all is well between him and his son, his son will benefit.
Fortunately, X has a triple-A paternal grandmother who the mother trusts. X’s grandmother and mother speak and communicate, and she will be instrumental in time with the child and the father moving forward. The mother’s concerns of the father’s asserted fascination with or an interest in young children, particularly girls and lack of boundaries is not supported on the evidence. There is absolutely nothing to support the mother’s allegations or fears or assertions. However, I accept these are her concerns.
Thus, it does not surprise me that she has put forward three sets of very different orders on the first, second and third day. They range from the father to have some overnight time, to the last set of orders of no overnight time. It was clear from the mother’s oral evidence that if it was up to her, time would continue to be supervised and there would be no overnight time until X was round 12.
The variation of orders does not surprise me. It is the mother trying to protect her son in circumstances where she knows there is insufficient evidence to support her fears and the court does not accept the risks to her son as she sees them. The mother is not comfortable with overnight time that was clear and has done her best to balance these disparate positions.
The father seeks an arrangement of ultimately having X in his care four nights a fortnight. The mother seeks no overnight time but said if this is to occur it would be two nights at most once a fortnight. The mother does agree to time on an alternate Thursday after school to 7.00pm even when the child commences school in 2017.
Ms K opined X should have been in a regime of overnight time by the date of the hearing. Further that by mid-2016, X would have been spending three nights a fortnight with his father and this was to progress to four nights a fortnight and ultimately five nights. The father has appropriate accommodation. He lives close to the mother’s home. The mother said if she is ultimately able to buy her own property she will stay in the (omitted) area.
Considerations under the Act[1]
Following the pathway in Goode v Goode[2].
I will not rebut the presumption of equal shared parental responsibility. It is important this responsibility is shared. The mother was very positive about her ability to communicate with the father, very open to suggestions, such as using a communication book. The father simply needs to step up to the mark and put his views down and let the mother know what he is thinking in a calm, proper and child-focused way. There are many years to go and it is important that X’s parents share this important responsibility.
I will not consider an order for equal time. It is not sought by either parent and it would not be an order in the child’s best interests at this time. X has not even spent unsupervised time with his father let alone overnight time, he is only 4 and an equal time order is neither practical realistic or in the child’s best interest as it must be having regard to the decision of MR v GR[3].
In relation to an order for significant and substantial time ultimately this may be an order in X’s best interest however given he has not spend unsupervised time with this father let alone overnight time if this is an order in his best interest it can only occur on a gradual and staged basis.
Going to the section 60CC factors I must address to determine what time with orders are in X’s best interests.
X benefits from a meaningful relationship with each of his parents. His mother is clearly his primary attachment figure. He is closely emotionally attached to and in tune with his mother. She is a parent with a high parenting capacity.
The father is yet to demonstrate anything approaching the mother’s parenting capacity. However, X will clearly benefit from a relationship with his dad which with greater time will develop and become stronger. The mother agrees X benefits from time with his father and in having a relationship with him
The child has not been exposed to poor behaviour, violence or neglect in either parent’s household.
He is too young of an age for his wishes to be relevant.
Impact of change
The father’s orders, that is, that the child spend overnight time with him will be a change for X, but it will be a greater change for his mother. Ms K was quite confident X was able to cope with overnight time. His mother is the one that may have difficulties. In those circumstances, any orders I make for overnight time would for a period of time have the paternal grandmother staying at the father’s home to allay any concerns the mother may have.
Insight each parent demonstrates
The mother has excellent insight into the needs of her child’s psychological, emotional and educational needs. However, these lingering concerns she has about the father’s inappropriate boundaries with young children and why he left his job at the (employer omitted) have perhaps clouded her insight into X’s need and right to have a full and independent relationship with his father which means weekend time, time during the week and overnight time unsupervised unless he is in danger or at risk.
The father’s insight into the needs of the child is much more limited than the mother’s. I am confident this insight will develop when the father has an opportunity to parent his son outside the scrutiny of the maternal family’s watchful gaze. I am confident the father has taken on board insights and lessons from this hearing and Ms K’s report. He now accepts that X’s mother is a valuable resource to him in parenting his child as she knows him the best of all the adults. He has realised he need not take every comment she makes as a criticism.
The mother has parenting capacity in spades. She is a competent, capable parent who will be well able to put the needs of her child to the fore. Although I have found that the father has less capacity than the mother to parent the child this will not result in harm to the child in the father’s care.
I find the father’s time ought to be forthwith be unsupervised. He has had supervised time for two years and it is time that he and X simply enjoyed their time together. X is safe in his care. It is a different care to the mother but he is safe.
I have formed the view that X’s time with his father is to gradually increase to overnight time which will occur on weekends. The first 6 occasions the paternal grandmother is to be present to allay the mother’s concerns. A gradual increase will allow the mother to monitor X’s reactions and give the father time to adjust to having his son in his sole care.
I accept the mother’s concerns that the father must be present to collect X from school and thus he must assure her with a letter from his employer he can collect his son from school at 3.00 pm otherwise time will commence at 5.00 pm on alternate Thursdays and Fridays. Additionally, if the father is late on two occasions on a Thursday, his Thursday time will cease. This is concern for the mother and there is evidence this has occurred in the past. The mother must be confident the father will be on time for the child. Holiday time will also gradually increase as X matures.
Of all the orders put forward those which I find are best suited to X’s needs are a combination of the father’s two sets of orders and the mother’s exhibit 2.
Combining these orders will result in X commencing overnight time with his father in June 2016, just short of his fifth birthday initially for one night a fortnight. His time with his father will progress to alternate Friday to Sunday being two overnights when he commences formal schooling.
Time on alternate Thursday will be from 3 pm to 7 pm and continuing with the father returning X to the mother fed, bathed and ready for bed.
This regime of time provides for a gradual build-up of time during the school week and the holidays. This will allay the mother’s concerns, allow X to get used to the regime in his father’s care and allow the father the time with his son that his son will benefit from.
Mr Harper made a good point that it would be good for X to have one night each week in his father’s care which would be a Friday and I agree weekly overnight time would be beneficial. However he submitted if I was minded to only have X with his father three nights a fortnight, as I am so minded, then the father would prefer to pick him up from school and take him to school. This is then time on alternate weekends from Friday to Sunday and overnight Thursday in the other week.
Going to the issue of the child’s name, for whatever reason or whatever came about, this child had a hyphenated name: May-Wallace. It is now May and has been so for some time as documents were sent to Births, Deaths and Marriages to change his name. The father makes a complaint that in some way the mother interfered with the documents and put his signature on them. The mother says she did not, it was an agreement they reached and the father signed the document. I need not make a finding. The mother says things should stay as they are because otherwise the child has to have a further name change.
I posited to the father I would not make a hyphenated name but I could see no difficulty with X having as an additional middle name his father’s surname. The father agreed with this proposal. The mother did not. I find this is an order in the child’s best interests.
The important connection with his father’s family by having this surname as part of his name is as important has having his mother’s surname as his surname. This is X’s identity not his mother’s. Therefore, I will make an order that the mother sign all documents necessary to cause the child’s name to be registered with Births, Deaths and Marriages as X, born (omitted) 2011, and all costs associated with that name change will be borne by the father.
I will also make an order that the parties use a communication book to record information concerning their son’s care and that the mother will within seven days of today’s date provide to the father in writing the regime of asthma medication he needs. Insofar as it is necessary, she is to authorise at the child’s medical centre in (omitted) that the father may contact the medical centre on any occasion and his doctors to be informed as to his son’s health.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of Judge Henderson.
Date: 3 June 2016
[1] Family Law Act 1975 (Cth)
[2] Goode & Goode [2006] FamCA 1346
[3] MRR v GR [2010] HCA 4; (2010) 240 CLR 461.
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