Weedon and Keen
[2010] FMCAfam 555
•11 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEEDON & KEEN | [2010] FMCAfam 555 |
| FAMILY LAW – Equal shared parental responsibility – meaningful relationship – parental responsibility – s.60CC primary and additional considerations – watch orders. |
| Family Law Act 1975, ss.60CA, 60CC, 65DAA |
| Goode (2006) FLC 93-286 |
| Applicant: | MR WEEDON |
| Respondent: | MS KEEN |
| File Number: | MLC 2900 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 11 May 2010 |
| Date of Last Submission: | 11 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Williams |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Ms Brenton |
| Solicitors for the Respondent: | Rigoli Lawyers |
ORDERS
The matter be adjourned to this Court on 11 November 2010 at
10.00 am before Federal Magistrate O’Dwyer for Final Hearing with an estimated hearing time of two days (“the Final Hearing”).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
[X] born [in] 2005 (“[X]”) spend time with the father as follows:
(a)Each alternate weekend from the conclusion of school Friday until 4.00 pm Sunday commencing 14 May 2010.
(b)Each Tuesday from the conclusion of school until the commencement of school Thursday, commencing 18 May 2010.
(c)For one half of all school holidays by agreement and in default of agreement the first half.
All non school changeovers take place at [W] Police Station.
The mother be and is hereby restrained from removing [X] from her current school, [P] College.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship [X] born [in] 2005 (“[X]”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, such Report to be released by 6 October 2010.
The Family Report to deal with the following matters:
(a)any views expressed by [X] and any factors (such as [X] maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of [X].
The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their legal representatives to) notify in advance the relevant Family Consultant of his or her need to attend Court.
The Applicant make, file and serve any further Affidavit to be relied upon by 4.00 pm 21 days prior to the Final Hearing.
The Respondent make, file and serve any further Affidavit to be relied upon by 4.00pm 14 days prior to the Final Hearing.
On or before 4.00 pm 3 days prior to the Final Hearing, each party must make, file and serve an Outline of Case document including the following:
(a)a list of the documents to be relied upon;
(b)a brief chronology;
(c)an outline of contentions with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s.61DA),
(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
(v)any other matters relevant to the decision; and
(d)A statement of the precise orders sought.
There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 11 May 2010 (“the Minute”).
The solicitors for the Applicant Father do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 7 days.
IT IS DIRECTED THAT:
The Minute be placed upon the Court file and marked “Exhibit A”.
AND THE COURT NOTES THAT:
A.Paragraphs 3.1, 3.2, 4 and 5 of the proposed minute of consent are by the Court.
B.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the Final Hearing date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
C.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the Final Hearing date.
D.Pursuant to ss.65DA(2) and 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 Attachment A and these particulars are included in these orders
IT IS NOTED that publication of this judgment under the pseudonym Weedon & Keen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2900 of 2010
| MR WEEDON |
Applicant
And
| MS KEEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting application by MR WEEDON (“the father”) that was filed on 30 March 2010 against MS KEEN (“the mother”). The father is seeking various orders in relation to the child of the relationship, [X] born [in] 2005 (“[X]”).
The father is seeking orders that:
·the parties have equal shared parental responsibility;
·[X] live with the mother;
·[X] spend defined time with him;
·a restraint be placed upon either party taking [X] from Australia; and
·an airport watch order be made.
The father’s application is supported by his affidavit sworn 29 March 2010 and filed 30 March 2010. He was legally represented by
Ms Williams of Counsel.
The mother opposes the orders sought by the father in her response filed on 7 May 2010 and is seeking different parenting orders in relation to [X]. However, there is some agreement in respect of the orders sought. More specifically, the mother is seeking:
·equal shared parental responsibility;
·that [X] live with her;
·[X] spends defined periods with the father;
·the changeovers occur at the [W] Police Station; and
·permission to travel outside Victoria throughout Australia and to New Zealand.
She relies on her affidavit sworn and filed on 7 May 2010. She was represented by Ms Brenton of Counsel.
Background
The parties’ respective affidavits detail the relevant background. They agree they commenced a relationship in New Zealand during 2003, although they disagree on the month. They agree they migrated to Australia in February 2004 and that [X] was born [in] 2005.
They disagree on when they separated. The mother claims they separated in July 2004 but resumed a relationship later that year. She then asserts they separated in June 2007. The father asserts they separated in June 2009.
The father has subsequently re-partnered to Ms F. The father asserts that the mother has re-partnered to Ms L. The mother concedes that she and Ms L had an intimate relationship. She asserts that this caused an altercation between her and the father that required police intervention and, as a result, an intervention order was made against the father in her favour which expires on 31 March 2011. She also asserts that the father assaulted Ms L and is facing charges returnable on
9 June 2010.
According to the mother’s evidence the father has four other children, two of which are in Australia, and his partner, Ms F, has a 14-year-old son.
Agreed issues
The parties are in agreement, or at least not in significant disagreement, about the following:
·that each should have equal shared parental responsibility;
·that the child lives with the mother;
·that the child spend six nights per fortnight with the father;
·that the child should remain in Victoria, but be permitted to travel outside Victoria and within Australia and to New Zealand, provided certain conditions are met.
Disputed issues
The dispute focuses on:
·the configuration of the father’s time arrangements;
·where non-school changeovers will occur;
·whether an airport watch order should be made; and
·whether the mother should be restrained from moving more than ten kilometres further than [W] is from the Melbourne CBD.
In respect of the father’s time to be spent with [X], the father proposes time be spent each week from after school Tuesday until before school Thursday, and alternate weekends from after school Friday until 4:00pm Sunday.
In respect of changeovers not occurring at school, the father proposes a location about halfway between the parties’ residences and the mother proposes [W] Police Station.
Parties’ submissions
Both parties’ Counsel made submissions. Ms Williams, for the father, provided the Court with a comprehensive minute of orders. In summary, the father’s spend time proposals is based on two factors:
i)his home work hours and the work hours of his partner; and
ii)the travel time and distances between the residences between the parties in this case.
As to that, the Court takes judicial notice of Google Maps which indicates that the distance between the parties’ residences is some 81.2 kilometres, or at least an hour and three minutes by car, using the fastest route. As [X]’s school is apparently 15 minutes from Ms F’s work, she has been driving [X] to school when required.
Ms Williams submitted that, should the wife’s proposal be accepted, [X] would be required to rise very early and be dropped into before-school care by Ms F on the Friday, as Ms F commences work at 7:00am. Ms Williams advised that the father is unable to do school drop-offs on Mondays to Fridays and every second Saturday, because he works from 6:00am. Ms F apparently works on Tuesdays, Wednesdays and Thursdays from 9:00am, Fridays from 7:00am, and Saturdays from 6:00am.
As to the need for an airport watch order, Ms Williams asked the Court to accept the father’s fears that the mother may flee the jurisdiction and return to New Zealand.
As to changeover, Ms Williams submitted that on non-school days a halfway point was reasonable, and that in earlier negotiations it would appear the parties may have considered Kmart at [suburb omitted], as an appropriate venue.
Ms Brenton, for the mother, indicated that the mother works from 7:30am until 4:30pm, Monday to Friday, and that the mother would pay the before-school care costs for [X] for the proposed Friday delivery time.
Ms Brenton submitted that the mother’s proposals promoted a better routine for [X] and were feasible stating that:
·changeovers at [W] Police Station were needed given the intervention order in the mother’s favour and the outstanding assault charges against the father;
·the restraint on the mother was too narrow, but, in any event, it had been the father that had moved away from the [W] area; and
·there was no reason for an airport watch order given the apparent agreement to have conditional travel.
Law
The Full Court of the Family Court decision of Goode (2006) FLC 93-286 guides this Court’s approach in making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court noted:
“In making interim decisions, the Court will still often be faced with conflicting facts, little helpful evidence, and dispute between parents as to what constitutes the best interests of the child.”
This matter is clearly such a case. More specifically, this raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties to the Court has not been tested by cross-examination. That said, in the same paragraph mentioned above the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (”the Act”) post the 2006 shared parenting amendments must be followed in an interim hearing.
There appears considerable disagreement, if not animosity, between the parties in this case and, no doubt, the history of the matter will be subject to evidence and cross-examination if the matter proceeds to final hearing.
There is no issue of equal shared parental responsibility as both parties are in agreement in that respect. The dispute is limited to the issue of [X]’s time with the father, under what circumstances that time should be spent and whether there should be restraints on travel and relocation from Victoria.
As required by the Goode decision, I must consider the competing proposals and identify the issues in dispute and any relevant agreed or uncontested facts. At this point, let me note s.60CA of the Act provides:
“In deciding whether or not 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.”
To determine the child’s best interests, the Court must consider the primary considerations or factors set out in s.60CC(2) of the Act, and, where relevant, the additional considerations referred to in s.60CC(3) of the Act.
Primary considerations: s.60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
Section 60CC(2)(a) requires the Court to consider first the benefit of the child having a “meaningful relationship” with both the child’s parents. Let me note that “meaningful” does not mean equal, but it clearly signifies that both parties should be involved with their child or children and, consequently, signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right that they have under the Act. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor if the matter proceeds to final hearing.
It is unclear what relationship, if any, the father has with his other biological children and, moreover, what relationship they have with [X].
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Under s.60CC(2)(b) the Court is required to consider the need to protect [X] from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence. There is no doubt that it would be in [X]’s best interest to develop a meaningful relationship not just with her mother, but with her father. That needs to be balanced in respect of protecting this child from any physical or psychological harm and the like.
Given the nature of the allegations here, the Court is satisfied there is a need to test the issues as to whether [X] may have been psychologically harmed by whatever statements or actions have been made in her presence during the parties’ relationship. There are issues here warranting investigation and the Court needs to tread cautiously in the necessary interim arrangements, given there is an outstanding intervention order between the parties and outstanding criminal proceedings against the husband for assault.
Additional considerations: s.60CC(3)
As to the additional considerations in s.60CC(3), I make the following comments. With respect to “the views of the child”, while significant, it will be somewhat difficult to determine in this case given that [X] is only five-years-old. Nevertheless, this will be something that the Family Consultant will be able to assist the Court with, perhaps assisted by an Independent Children’s Lawyer should one be appointed.
As to “the nature of the relationship between the child and each of the child’s parents”, again we have different stories and the parties’ evidence needs to be tested.
“The willingness and ability of each of the child’s parents to encourage a close and continuing relationship between the child and the other parent” is a crucial factor here. The parenting arrangements proposed by the father do suit the work-related needs of himself and his partner. Nevertheless, he does raise an issue about whether [X] being forced to rise early on a Friday morning to facilitate Thursday overnight time is in her best interests. These issues also need to be tested.
As to the “extent to which each of the child’s parents have fulfilled or failed to fulfil their responsibilities as a parent”, again we have different stories which need to be tested.
The Court is also required to consider “the likely effect of any change in the child’s circumstances”. Clearly, both parties agree that some change is required. There is also an intervention order in place, as well as outstanding criminal charges against the father. These are relevant matters, particularly in relation to the issue of changeover.
Conclusion
This matter is complicated by the fact that the parties are an hour apart by car and have work-related commitments. That having been said, “the best interests of the child” in this case is paramount, and it is [X]’s best interests that will guide the Court’s decision.
As to the spend time arrangements, it is clear that the father works each alternate Saturday so those Saturdays would not be in [X]’s best interests. The Court considers the arrangements more or less as proposed by the father would be in [X]’s best interests. That is, from after school Friday until 4:00pm Sunday on a weekend that the father is not working Saturdays and in each week from after school Tuesday to before school Thursday, with the father or Ms F to collect [X] from, and return her to, the relevant school (except on alternate Sundays).
The Court considers that this proposal will necessitate only one changeover outside of school hours, that being on a Sunday each alternate weekend, and thus will limit the contact between the parties. It will also enable various s.65DAA matters to be met, although I note there is an argument that the revised proposal by the mother would similarly also meet the s.65DAA matters. As to changeovers on non-school days, the Court considers that they should continue at [W] Police Station.
As to the restraint on leaving the jurisdiction, until further order, unless the parties agree, [X] will remain enrolled and attend her current school. The Court is also satisfied that an airport watch order is not needed in this case. New Zealand is a Child Abduction Convention country. In any event, there is no compelling evidence before the Court today that the mother is returning to New Zealand. However, there will be a need for the child’s passport to be held by the mother’s solicitor until further order and for orders in relation to the arrangements of travel, as the parties agree on the need for appropriate arrangements of travel by either party.
I reserve the right to settle the reasons for this decision
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 18 June 2010
0
1