Walter and Campbell
[2010] FMCAfam 397
•28 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALTER & CAMPBELL | [2010] FMCAfam 397 |
| FAMILY LAW – Equal shared parental responsibility – equal time – whether need to consider substantial and significant time with. |
| Family Law Act 1975, ss.60CC, 61DA(1), 65DA(5), 65DAA(2), 65DAA(5) |
| In the Marriage of Hall (1979) 5 FamLR Newlands & Newlands [2007] FamCA 168 MRR v GR [2010] HCA 4 N and N [2004] FamCA 706 L and L [2002] FamCA 537 |
| Applicant: | MS WALTER |
| Respondent: | MR CAMPBELL |
| File Number: | MLC 5759 of 2009 |
| Judgment of: | Turner FM |
| Hearing dates: | 22, 23 & 24 March 2010 |
| Date of Last Submission: | 24 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Ms Byrnes |
| Solicitors for the Respondent: | Cathleen Corridon Solicitor |
ORDERS
[X] born [in] 2001 (“[X]”) spend equal time with each of his parents by living with them in alternate weeks from after school on Fridays until the commencement of school the following Friday.
(a)This Order is to take effect immediately so that [X] spend time with his mother commencing from after school on the first Friday after this decision.
[X] spend time with his mother from 5pm on 25 December 2010 until 5pm on 28 December 2010 and in each alternate year thereafter.
[X] spend time with his mother from 5pm on 23 December 2011 until 5pm on 25 December 2011 and in each alternate year thereafter.
[X] spend time with his mother from 6pm on Easter Sunday 2011 until 6pm on Easter Monday 2011 and in each alternate year thereafter.
[X] spend time with his mother from 10am on Good Friday 2012 until 6pm on Easter Sunday 2012 and in each alternate year thereafter.
ORDERS BY CONSENT
All previous parenting Orders be discharged.
The parents have equal shared parental responsibility for the child of the relationship, [X], born [in] 2001 (“the child”).
That on all school days changeovers shall occur at the child’s school and on non-school days at the paternal grandparents’ home.
Both parties, their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting belittling, rebuking or otherwise denigrating the other or any member of their family;
(b)Discussing Family Law or related proceedings to, with, or in the presence or hearing of the child, and from permitting any other person from doing so.
In the event that the child suffers a serious injury or illness whilst in the care of one or other of the parties, the person whose care the child is in, will immediately notify the other of the details of the illness or injury and whether the child is or has received treatment and the nature of the treatment.
Without admission, neither party shall consume illicit drugs whilst the child is in their care.
Both parents authorise the school that the child attends to provide both parents with all school reports, photographs, newsletters and other documentation normally provided to parents and each parent be entitled to attend school events usually attended by parents.
Each parent keep the other informed within 48 hours of any change to their residential address or telephone contact details.
That if either parent intends to travel with the child outside of the State of Victoria they provide the other parent at least 30 days in advance of the trip with details of the proposed trip including itinerary and telephone and accommodation details for the duration of the trip.
That neither parent, their servants and/or agents are permitted to change the child’s residence from the State of Victoria and/or remove the child from the State of Victoria for any period that exceeds the time the child is in their respective care without the expressed prior written consent of the other parent.
Pursuant to s.65A(2) and s.62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
That both parents have access to the child’s medical and allied health professionals and all such professionals are authorised to discuss the child’s issues with each parent.
That each parent make available to the other parent any medications prescribed for the child to the other parent to administer during their period of care and the other parent shall thereafter administer the medication as prescribed or required.
That the parties establish and use a communication book to communicate with one another on matters such as medical concerns, current routine, education, extra-curricular activities and any other matter to be brought to the attention of the other parent, and such book travel with the child between the parents’ residences.
That the child continue to attend support and treatment by the Mid West Team of the Royal Children’s Hospital.
The parties agree that these proposed Orders will be adhered to until the Orders are made by the Courts save for Order 1.
Notations
A. In order to address any issues around poor communication and working toward consistent parenting goals the parents agree to engage in Family Dispute Resolution whenever necessary.
B. Each parent will give a copy of these Orders to the child’s school and to any medical or allied health professionals involved with the child to serve as authority to them to give effect to these Orders.
C. Both parents agree that they will:
(a) Attend a post parenting separation course as soon as practical.
(b) Engage in individual counselling as soon as possible.
IT IS NOTED that publication of this judgment under the pseudonym Walter & Campbell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5759 of 2009
| MS WALTER |
Applicant
And
| MR CAMPBELL |
Respondent
REASONS FOR JUDGMENT
This application relates to who the only child of the relationship is to live with, and how much time the other parent can spend with him. The child is [X] (“[X]”) born [in] 2001.
Ms Byrnes for the respondent father submits that the family report writer identified correctly the issues in dispute as:
·Which parent the child is to primarily live with
·The time the child spends with his mother and father
·The impact on the child of the parental conflict and poor parental relationship
·Child abuse
·Mental health of the child and mother
A family report was prepared by Ms Magio Konidaris. She appeared on 23 March 2010, gave evidence and was cross-examined. Notwithstanding searching cross-examination, Ms Konidaris did not change her recommendation that
The child spend equal time with each parent on a week-to-week basis.
The parties describe this as a “7/7 arrangement.”
Ms Byrnes submitted that a family report is only one piece of evidence that the Court need consider. Ms Byrnes referred to the decision In the Marriage of Hall (1979) 5 FamLR at p.615 that:
(a)“There is no magic in a family report. A judge is not bound to accept it.”
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the Court, it is not because they have been accepted by the Court, but because the judge has found them consistent with the rest of the body of evidence before him.”
Ms Byrnes referred also to Newlands & Newlands [2007] FamCA 168 at [98] to [100] that:
The weight and importance to be attached to the evidence of a family consultant is subject of well settled authority. Whilst ultimately the decision of what is in the best interest of a particular child is that of the trial Judge who has the benefit of seeing all of the witnesses and considering all of the evidence, the evidence of, and important recommendations made by, a family consultant require careful examination by the trial Judge (see N and N [2004] FamCA 706 and L and L [2002] FamCA 537).
In this case the trial Judge made orders in different terms to those recommended by the family consultant in circumstances where an existing arrangement which appeared to be working well for the children had been in place for approximately 16 months at the date of the hearing. The trial Judge failed to analyse the family consultant’s evidence and recommendations and give reasons why she proposed to reject her recommendations.
We are satisfied the trial Judge’s failure to examine, and give reasons for her rejection of the family consultant’s evidence constitutes an appealable error.
Mr Howe for the applicant mother did not dispute the relevance of the above decisions, but submitted that the Court should place great weight to the family report:
·As everything had been taken into account in the report
·It’s writer had been subjected to extensive cross-examination, and
·That cross-examination had not changed the writer’s view that a 7/7 arrangement would be best for [X].
The father proposes that [X] live with him and spend alternate Fridays from after school until 7pm on Sunday with is mother, plus each Wednesday from after school until 7.30pm.
The mother proposes a 7/7 arrangement.
Other issues were identified, with the parties indicating that most of them would be resolved by consent in minutes to be provided to the Court. Minutes have now been provided
Ms Byrnes relied on the decision in MRR v GR [2010] HCA 4 to say that where there is equal shared parental responsibility the Court must determine whether the child spending equal time with a parent is in the best interests of the child and reasonably practicable by reference to the factors in s.65DAA(5) of the Family Law Act 1975 (the “Act”) and if not, the Court must determine whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and is reasonably practicable by reference to the factors in s.65DA(5). Further, that the best interests of the child are to be determined according to the factors in s.60CC.
Those propositions were not disputed by Mr Howe, and the Court accepts them.
Equal Shared Parental Responsibility
The parties agree that they should have equal shared parental responsibility for [X]. The father wants sole parental responsibility for the day to day care, welfare and development of [X]. Section 61DA(1) provides that the Court
“must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child.”
The Court finds no reasons to rebut that presumption and orders that:
The parents have equal shared parental responsibility for the child.
Having made that finding the Court must determine next whether it is in the best interests of [X] for him to spend equal time with each parent. To do that, the Court must consider the considerations in s.60CC.
Section 60CC(2)(a)
The Court finds that [X] would benefit from having a relationship with both of his parents. He loves them both, and they love him. They can each contribute to a stable upbringing.
Section 60CC(2)(b)
The mother alleges that [X] told her that his father made him write out 1000 lines for calling Mr B “dad” and, that “if you go to live with mum you will never see me”, she says that he was abusive to her and smashed things in their house with a golf club. The father alleges that [X] has been physically harmed while [X] has been in the care of his mother while Mr G has been in attendance. The Court notes that the mother ceased her relationship with Mr G to prevent this. There is no evidence as to whether Mr B’s mother caused harm to [X], other than that she smacked him. There is no proof of this. The evidence is that the mother stopped using marijuana eight months ago, and that the father had dealt in drugs in the past. Ms Byrnes referred to the father’s concerns about the mother’s mental health. The Court finds that there is no evidence that the mother has a current mental health problem, although there is some evidence of past problems.
Section 60CC(3)(a)
Ms Byrnes urges care in the Court placing weight of [X]’s preference expressed to the family report writer at [25] that “his preference would be to live half time with each parent.” Ms Byrnes proposed caution because [X] is only nine years old and he was reluctant in expressing his preference. The report writer stated that [X] was “initially non-committal around this preference”, but the Court finds that [X]’s views are not overridden by lack of maturity or understanding. He is acutely aware of the tension between his parents [25], and mature enough to not support moving interstate unless “his mother also lived there.” The report writer does not say that [X] is immature for his age. The Court must be cautious before giving little weight to a child’s views and finds that his views support him spending equal time with his parents.
Section 60CC(3)(b)
[X] appears to have a close relationship with both of his parents and both sets of grandparents.
Section 60CC(3)(c)
Ms Byrnes submits that the mother has breached orders of the Court and has denigrated the father to [X]. She acknowledges that the father involved [X] in a fight between the parents by handing [X] the telephone and directing him to question the mother. The Court regards this incident very seriously, it shows a willingness by the father to place [X] in the middle of the parent’s battle, with the purpose of harming A’s relationship with his mother.
Section 60CC(3)(d)
Ms Byrnes says that [X] had been living with his father for the last two years, and to change to a 7/7 arrangement would be another major change for [X].
The Court finds that a 7/7 arrangement would not be likely to have a negative effect on [X]’s relationship with his father or his paternal grandparents, whereas the change is likely to have a positive effect on his relationship with his mother and his maternal grandparents.
Section 60CC(3)(e) is not relevant.
Section 60CC(3)(f)
The family report says that both parents have weaknesses in their parenting abilities. The paternal grandparents are willing to assist with changeovers.
As [X] loves both his parents, they must both be able to provide for his emotional and intellectual needs. Equal time with each is likely to benefit [X].
Section 60CC(3)(g).
The Court finds [X] to be mature enough for his views to have relevance.
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i)
It is not disputed by the parties that both parents have a good attitude towards [X]; both show some lack of insight into the responsibilities of parenthood; the mother by denigrating the father to [X], and the father by involving [X] in the parental conflict.
Section 60CC(3)(j)
The father is concerned about family violence by Mr B’s mother, the Court has commented on this above.
Section 60CC(3)(k) is not relevant.
Section 60CC(3)(l)
It is preferable to make the order that would be least likely to lead to the institution of further proceedings about [X]. Ms Byrnes submits that no matter which order is made, proceedings are likely because of the poor relationship between the parties. The Court considers that equal time will be beneficial to [X]. Once the father recognises this, hopefully further proceedings may be avoided. Also, 7/7 will facilitate changeovers at school and hopefully avoid confrontations.
The views of the family report writer coincide with those of the Court that equal time with each parent will benefit [X]. The Court therefore places weight on the recommendations in the family report.
The Court finds that it is in the best interests of [X] to spend equal time with each of his parents.
The next question is whether this would be reasonably practicable. Section 65DAA(5) requires the Court to have regard to
a)How far apart the parents live from each other. The evidence is that they live 17 kilometres apart. That does not make equal time with them impracticable.
b)The parent’s capacity to implement an equal time arrangement. An arrangement from after school on Friday until the commencement of school on the following Friday with changeovers at school is well within the capacity of the parents to arrange.
c)The parents have limited capacity to communicate and resolve difficulties that might arise from equal time with them. However time from Friday to Friday as above is likely to cause less difficulties than split weeks or regular changeovers other than at school.
d)The Court considers that [X] will benefit from spending equal time with each parent. It is what he wants. It should avoid confrontation at changeovers, and hopefully lead to less tension.
e)There are no other factors the Court thinks are relevant in deciding whether equal time is practicable.
Having decided that [X] spend equal time with each parent, the Court is not required to consider A spending substantial and significant time with a parent [s.65DAA(2)(b)].
The father proposes that [X] spend time with the mother from 5pm on 23 December 2010 until 5pm on 25 December 2010 and in each alternate year thereafter.
·
And from 5pm on 25 December 2011 until 5pm on
28 December 2011 and in each alternate year thereafter.
The mother agrees with both of the above proposals save that she wants [X]’s time with her to be from 5pm 25 December to commence in 2010, on the basis that [X] has spent that time with his father in both of the last two years. (Transcript 24 March 2010, p.3 l.27). That evidence has not been challenged. The Court finds the mother’s proposal to be reasonable and likely to promote both parents having a meaningful relationship with [X] [s.60CC(2)(a)].
As to Easter, the father proposed that [X] spend time with his mother:
·From 10am on Good Friday until 6pm on Easter Sunday in 2010 and in alternate year thereafter;
·And “from 6pm on Easter Sunday and each alternate year thereafter” (sic).
The father did not expand on what he intended as the finishing time in that proposal, and the Court implies that it must be some time on Easter Monday, probably 6pm.
The mother makes no specific proposal as to Easter other than to say “the same issue applies, I think, to Easter” after referring to “five hours each on Christmas Day” (Transcript 24 March 2010, p.2 l.27).
This leaves the Court in a most unsatisfactory position: The Court determines that the appropriate provision is that [X] spend time with his mother at Easter from 6pm on Easter Sunday in 2011 until 6pm on Easter Monday in 2011 and in each alternate year thereafter; and from 10am on Good Friday 2012 until 6pm on Easter Sunday 2012 and in each alternate year thereafter. This should promote a meaningful relationship with each parent [s.60CC(2)(a)].
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Eyal D’vier
Date: 28 April 2010
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