Waski and Waski

[2012] FamCA 629

FAMILY COURT OF AUSTRALIA

WASKI & WASKI [2012] FamCA 629

FAMILY LAW –  CHILDREN – BEST INTERESTS OF THE CHILD – With Whom the child spends time - where both parents have a meaningful relationship with the child - where the subject child is four years old – Where the child lives with his Mother - where the Court orders that the child spends substantial and significant time with the father –where parents have very different lifestyles and rules at home - where the lack of communication between parents creates instability for the child - where orders are made to improve communication between parents

Family Law Act 1975 (Cth) ss 60CC, 62B and 65DA

APPLICANT: Mr Waski

RESPONDENT: Ms Waski

INDEPENDENT CHILDREN’S LAWYER: Ms Drylie

FILE NUMBER: SYC 4866 of 2010

DATE DELIVERED: 4 July 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 4 July 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Ms Drylie

Orders

1. That all previous parenting orders be discharged.

2. That the parents shall have equal shared parental responsibility for the child J born … July 2008 (“they child”).

3. That the mother shall have sole parental responsibility for making decisions concerning the child in respect of issues that are not major long term issues, being those relating to the day to day care, welfare and development of the child.

4. That the child live with the mother.

5. That the child shall spend time with his father as follows:

   5.1      until 2014 when he starts school,

   5.1.1each alternative weekend from 3.30 pm Saturday until delivery at pre-school not later than 9.30am on the following Monday,

   5.1.2each alternate Thursday or such other day as is agreed between the parties in writing, from 9.30 am until delivery back to pre-school the following day not later 9.30 am,

   5.1.3for one period of three days and two nights during the school holiday period September/October 2012,

   5.1.4from 9.00 am to 5.00 pm on Father’s Day if the child is not already in his father’s care on that day,

   5.1.5The child’s time with the father is suspended on Mother’s Day in the event that the child is in his father’s care over that weekend, from 9.00am for the balance of that period,

   5.1.6The child’s time with the father is suspended for a period of up to two weeks in January 2013 for a holiday by the mother and the child, the mother to give written notice of the relevant dates,

   5.1.7that there be telephone calls by the mother to the child and by the father to the child on at least one occasion during each period of time that the child is in the other party’s care,

   5.2     From 2014,

   5.2.1during term time, each alternate weekend from after school Friday until before school Monday,

   5.2.2on each alternate Thursday or other day as agreed between the parties, from after school to before school the next day,

   5.2.3for one week in each of the term holidays and for two weeks in the Christmas school holiday period commencing December 2014/January 2015, such period to commence each year from 2 January unless otherwise agreed between the parties,

   5.2.4for the Father’s Day weekend if the child is not already spending time that weekend, to be substituted for the weekend previous,

   5.2.5time on the mother’s day weekend to be suspended for the whole of that weekend and to be substituted for the weekend previous.

6. The father is to be responsible for collecting and delivering the child in accordance with these orders, either from the pre-school or from the mother’s home.

7. The parties are to establish a communication book which should contain brief factual statements of events in that parent’s home and is not to be used for complaints or criticisms.  An example of its use would be the child suffering an illness and any medication that he needed to take or some event at school which the other parent should be aware of.

8. The father is restrained from putting tattoo transfers on the child at any time.

9. Each party who has not already attended such a course, should attend the parenting after separation course run by Unifam or a similar programme.

10. In the event that the father does not collect the child on the stated date at the stated time without prior notice to the mother of his inability to attend, then the mother is entitled to assume that time will not be spent on that occasion.

11. That the parents shall keep each other informed of changes to their home address or telephone numbers, including both landline and mobile telephone contact numbers where applicable, within 72 hours of such change.

12. In the event of the child being hospitalised or receiving medical attention, the parent  with whom the child is with at that time shall notify the other parent as soon as practicable, after the first contact with either a medical practitioner, medical centre or hospital, by telephone and if there is no answer, that parent forthwith send a text message.

13. That upon the child’s enrolment at school, the mother do all acts and things and give all authorities necessary to ensure that the school the child attends from time to time forward directly to both parents copies of the child’s school reports, and any written material pertaining to his academic and extra-curricular activities and of his welfare and progress at school.

14. Each parent may attend events at the pre-school and school to which parents are invited.

15. 15.1 That each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child.

    15.2That each parent do all things necessary to ensure that no third party makes critical or derogatory comments about the other parent in the presence or hearing of the child.

16. That the parents be restrained from passing information or messages through the child to the other parent.

17. That the parents make every effort to ensure that the child is protected from any information about parental disputes.

The Court Notes:

AThe Court Notes the parents are entitled to implement other arrangements for the child at any time by agreement.

B.The parents should make every effort to undertake such courses as will assist them to communicate directly about parenting issues involving the child.

C.The father was given leave to make submissions limited to evidence previously filed by him.

D.In relation to the oral application for costs by the Independent Children’s Lawyer, the parties are to provide a financial statement to the Legal Aid Commission and the Commission will send a statement of costs to each of the parties.  I note that the parents have a capacity to pay but when they have considered what the costs are and the Commission has  considered the parents financial position, then either party including Legal Aid, can relist the matter as necessary.

1. Pursuant to s 65DA(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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waski & Waski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 4866 of 2010

Mr Waski

Applicant

And

Ms Waski

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application by the father, Mr Waski, in respect of the parties’ only child, J (“the child”).  The application was filed on 3 August 2010.  The respondent is Ms Waski, the child’s mother.  On 22 November 2011, orders were made by consent and pending further order by the parties.  Included in those November orders was a note that the orders would be reviewed in April 2012, that is note A.  There was also an order for the parties to attend a child dispute conference with Mr C on 2 April 2012, Mr C having previously prepared a family report.

2. The father did not attend at that conference with Mr C and he did not appear on 19 April 2012 when the matter came back before the Court as had been anticipated.  On that day, 19 April 2012, leave was granted to the father to apply to the Court to relist the proceedings within 28 days and if he did not do so that the matter be heard undefended, that is in his absence, on 4 July 2012.  There was no application to relist the matter and accordingly it came before me for undefended hearing today.  In fact, the father appeared and was given leave to make some submissions to the extent of the evidence that he had previously filed.

3. It is a somewhat unsatisfactory situation that the evidence before the Court, certainly in respect of the father’s position, was limited.  However, in the circumstances where the mother had complied with all that had been asked of her and there is a need to resolve the matter, that is the way that the matter has unfolded.  The parties, were able on 22 November 2011 to agree on crucial issues in relation to their son, that is parental responsibility, day to day decision making and residence.

4. The matter that is seriously in dispute is how much time the child spends with each of his parents.  The decision about what parenting order to make is determined by a consideration of a child’s best interests.  The child is aged just four. 

Best Interests of the Child

1. I must take into account the considerations which are set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”). I am satisfied that the only relevant primary consideration in this case is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) of the Act). There is no need to put measures in place to protect the child from physical or psychological harm (s60(2)(b) of the Act).

2. The additional considerations under s60CC (3) of the Act provides a list of the most important factors the Court is directed to consider when contemplating a parenting order. Due to the diversity of proceedings, there are inevitably factors, which will not be relevant, there may also be other factors beyond the scope s60CC (3) of the Act, which the Court may need to consider (s 60CC (3) (m) of the Act).

3. The child’s views are generally an important factor (s 60CC (3)(a) of the Act), however, in this case the child, at just four, is not in a position to express a view, although he clearly enjoys time with both his parents.

4. The child has a meaningful relationship with his mother who provides most of his day to day care and is entirely financially responsible for him.  The child also has a meaningful relationship with his father.  I am satisfied that the child’s father has a genuine interest and commitment to the child despite his failure to engage with the process of making this determination.  In this particular matter, the child is well loved by both his parents and is progressing reasonably well. 

5. The child’s primary difficulty is that his parents have a very poor relationship, communicate in a limited way by text, do not speak to each other face to face and the child never has the opportunity to see his parents in any kind of positive light in terms of their relationship (s 60CC(3)(i) of the Act). The child has an important relationship with both his parents, his maternal grandparents and there may be others at those times when he is spending time with his father, but there is no evidence about that (s 60CC (3)(b) of the Act).

6. Each of his parents has shown an ability to facilitate the relationship between the child and the other parent. The mother, in my view, has made concerted and regular efforts to ensure that the child spends time with his father. The father has, from time to time, failed to take up the opportunity to spend time with the child. That is not a criticism of the father in the sense that everybody from time to time is sick or unable to spend time with the child for personal reasons. The difficulty is the communication of those problems in sufficient time for the resident parent, the mother in this case, to make other arrangements and for the protection of the feelings of the child (s 60CC (3)(c)(ii) of the Act).

7. If a parent does not arrive to collect a child who is expecting to spend time, a child not only experiences disappointment, but also rejection that could lead to the deterioration of what would otherwise be a very positive relationship. 

8. On the mother’s proposal, there would be some change in the child’s circumstances in that there would be a reduction of the current levels of time he spends with his father for an extended period (s 60CC(3)(d)(i) of the Act). the child is due to start school in 2014. So there would be 18 months of less time with his father. It is difficult to know what the impact of that on the child would be.

9. There is some evidence before the Court in the mother’s affidavit and in exhibit 1 which is a letter from the child’s preschool that his behaviour at the moment reflects some emotional struggle.  He has become physical with other children.  He appears to be tired and emotionally fragile and inclined not to engage with other children during the day.  It is impossible to attribute this to any particular cause.  He may simply be physically tired, having had a busy weekend.  He may be emotionally out of sorts with himself due to the difficulties of living in each household when the two households do not communicate.

10. It may be that, having reached the age of four, he feels a need for more time with his father.  It may be that he finds it too hard to change between the houses and it would be easier to have less time with his father.  The state of the evidence makes it impossible for me to determine that with any certainty.  I can accept, though, that he does appear to be struggling just at the moment.  On that basis, one of the orders will see their father returning the child to preschool on Monday morning. This will avoid the situation where the child would return to his Mother on Sunday afternoon and then be immediately taken to preschool after spending a very short time in the Mother’s care. This may be one of the factors that is leading to his current distress.

11. It is also important for the child’s father to engage with the preschool in a positive way so that he participates to some extent in the child’s education. 

12. There is some practical difficulty and expense involved in the child spending time with his father in the sense that the mother bears all of the cost of travel or would if there needed to be transport by car (s 60CC(3)(e) of the Act). However, I am confident that the parents will be able to implement these orders and make them work. I note one of the recommendations in the family report prepared by Mr C on November 2011,:

    It is recommended that [Mr Waski] contact the child support agency as soon as possible to make arrangements for child support payments to be made regularly to [Ms Waski].

13. That was in conjunction with a recommendation for a further child dispute conference. It seems likely that if some of the strain of providing for the child was reduced, the strain on the mother that is, there may be an improvement in the relationship between the parents. Each of the parents has the capacity to provide for the child’s needs including his emotional and intellectual needs (s60CC(3)(f) of the Act). The mother has been deeply engaged in ensuring that the child’s educational needs are met and that his feelings of safety and certainty in terms of routines are met.

14. The parents are very different individuals (s 60CC(3)(g) of the Act). Clearly in the father’s household, there is a much more relaxed and free flowing attitude to life. The difficulty for the child is that the rules in each household would appear to be entirely different and most significantly, there is insufficient respect particularly on the father’s side for the child’s dilemma in knowing what is right. So that if he begins to adopt some of the behaviour that is acceptable in one house, he may well be very sharply reprimanded in the other.

15. One example of this is the mother’s evidence that the child has come home from time to time with transfer tattoos.  That might not be a matter of any significance, except that clearly the mother does not like the child to be tattooed and clearly the father enjoys including the child in something that he enjoys.  It is not the issue of the tattoo itself, it is respect for the child’s dilemma.  When he gets home, those tattoo transfers are removed, and the child says that is painful.  He is told by his mother to tell his father not to put them on.  He does that and his father sends a message, “Why not?”

16. It should not happen that the child runs into trouble over having those tattoos on him. It simply should not happen, not because it is good or bad, but because it creates a difficulty for him.  This is, but one example of the parents using the child as a means of conflict with each other.  It is also an example of what should not be happening for the child.  There needs to be more respect for the fact that he is subject to two different sets of rules in each household and whatever can be made easier for him should be.

17. The child is a four year old boy. He does not have brothers and sisters. He lives with his mother and spends time with his father on a recently more regular basis, although not entirely regular. Each of the parties have shown the responsibilities of parenthood, however, to date the father has not engaged with his responsibility to provide financial support for the child. It is preferable, in this matter, to make an order that will put an end to the proceedings in relation to the child (s 60CC(3)(l) of the Act). The child is beginning to reach the age where he knows that his parents are in conflict about him and that things that he says about the other parent may be taken up and used in a way that will come back to hurt him.

18. The consequence of the child understanding this is that increasingly he will say nothing to the adults who care for them about the issues in their lives.  They develop a habit of keeping their thoughts to themselves.  That is a risk to a child, especially as they reach adolescence and need the opportunity to be fully confiding in both their parents.

19. Provided the parties improve their communication with each other and try to understand the critical impact their ongoing behaviour is having on their son I am satisfied that these orders provide for the stability that the child requires.

    ORDERS DELIVERED

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 July 2012.

Associate: 

Date:    3 August 2012