Werber and Kingsley and Anor

[2014] FCCA 2744

FEDERAL CIRCUIT COURT OF AUSTRALIA

WERBER & KINGSLEY & ANOR [2014] FCCA 2744

Catchwords:
FAMILY LAW  ̶  When overnight time with three year old should increase  ̶  whether specific order should be made for grandmother.

Legislation:  
Family Law Act 1975 (Cth), ss.60, 60CC

Applicant: MS WERBER

First Respondent: MR KINGLSEY

Second Respondent: MS KINGSLEY

File Number: DGC 1595 of 2013

Judgment of: Judge Phipps

Hearing date: 4 September 2014

Date of Last Submission: 4 September 2014

Delivered at: Dandenong

Delivered on: 4 September 2014

REPRESENTATION

Counsel for the Applicant: Ms Stavrakakis

Solicitors for the Applicant: Julie Taylor

Counsel for the First Respondent: Mr Hoult

Solicitors for the First Respondent: Susan Ruffin Solicitors

Counsel for the Second: Ms Phelan

Solicitors for the Second Respondent: Oakleys McKenzie-Mcharg

ORDERS

1. THAT the mother and the father have equal shared parental responsibility for the child [X] born [omitted] 2011 ("the child").

2. THAT the child live with the mother.

3. THAT the child spend time and communicate with the father as follows:-

   (a)Upon the child attaining the age of 3 years on [date omitted] 2014:

   (i)Each alternate weekend from 9.00am on Saturday until 12.00 noon on Sunday;

   (ii)Each alternate Tuesday from 8.30am until 4.30pm;

   (iii)Each Thursday from 8.30am until 4.30pm;

   (b)Upon the child attaining the age of 3.5 years on [date omitted] 2015:-

   (i)Each alternate weekend from 9.00am on Saturday until 4.30pm on Sunday;

   (ii)Each Thursday from 8.30am until 4.30pm;

   (c)Upon the child attaining the age of 4 years on the [date omitted] 2015:-

   (i)Each alternate weekend from 4.30pm on Friday until 4.30pm on Sunday;

   (ii)Each Thursday from 8.30am until 4.30pm provided if kindergarten is scheduled on this day, the father will facilitate the child's attendance thereat;

   (d)Upon the child attaining 5 years on [date omitted] 2016 until the child commences school:-

   (i)During school terms:-

   A.Each alternate weekend from 4.30pm on Friday until 4.30pm on Sunday;

   B.Each Thursday from 8.30am until 4.30pm, provided that if kindergarten occurs on this day, the father will facilitate the child's attendance at kindergarten;

   (ii)For the 2016 September to October school holidays, the alternate weekend time with period, on the first weekend when it occurs, will extend from 4.30pm Friday to 4.30pm Monday (3 nights), and that the provisions of sub-clause 3(d)(i)A and 3(d)(i)B hereof will otherwise remain in effect;

   (iii)During the December 2016 to January 2017 school holidays, each alternate weekend, from 4.30pm Friday to 4.30pm Tuesday, provided that the provisions of Order 3(d)(i)B will be suspended.

   (iv)For the first school term holidays in 2017 if the child has not commenced school, for the father's first ordinary alternate weekend time with period that occurs within those holidays, from 4.30pm on Friday until 4.30pm on Wednesday, and otherwise in accordance with Order 3(d)(i)A, provided that Order 3(d)(i)B shall be suspended.

   (v)For the second school term holidays in 2017 if the child has not commenced school, during the father's first ordinary scheduled alternate weekend time with period that would fall in those holidays, from 4.30pm on Friday until 4.30pm on Thursday, provided that the provisions of Orders 3(d)(i)A will remain in effect, and 3(d)(i)B thereof shall be suspended.

   (vi)During the long Christmas vacation 2017 to 2018 if the child has not commenced school, on an alternating weekly basis, unless otherwise agreed, from 4.30pm on the first Friday thereof until 4.30pm on the following Friday thereof, subject to the Christmas Day provisions detailed herein, and provided that Orders 3(d)(i)A and 3(d)(i)B shall be suspended, and provided further that unless agreement is reached on the first, third and fifth weeks of those scheduled school term holidays.

   (e)Upon the child commencing school:-

   (i)During school terms:-

   A.In week 1, each alternate weekend from conclusion of school Friday until 4.30pm Sunday;

   B.In week 2, on Tuesday from 5.30pm to 7.30pm;

   (ii)For half of all scheduled school term holidays, as shall be agreed, and in the absence of agreement, from conclusion of school on the first Friday thereof until 4.30pm on the middle Saturday;

   (iii)For half of each long Christmas vacation, provided that until the child attains 7 year, such time with periods will occur on a week about basis, unless otherwise agreed, and if there is no agreement, for the first, third and fifth weeks, from 4.30pm Friday to 4.30pm the following Friday on each such week, provided that:-

   A.Once the child attains 7 years, unless agreement is reached as to which half of the holidays the child spends with each parent, the child will spend the first half of such holidays with the father where the holidays commence with an even numbered year, and the second half of the holidays with the father when the holidays commence with an odd numbered year;

   B.Should time with be agreed to conclude on the final Sunday of a period of school holidays, it will conclude at 4.30pm;

   (f)In any event:

   (i)From 3.00pm Christmas Eve to 3.00pm Christmas Day for Christmas Day 2014 and likewise for each alternate year thereafter;

   (ii)From 3.00pm Christmas Day to 3.00pm Boxing Day for Christmas Day 2015 and likewise for each alternate year thereafter;

   (iii)In the event that Father's Day should occur when the child is in the care of his mother, from 4.30pm on the eve of Father's Day until 4.30pm on Father's Day;

   (iv)In the event that the child's birthday should occur when he is in the care of his mother, if a week day, for a period of 2 hours as mutually agreed, and in the absence of agreement, 3.00pm to 5.00pm, and if a weekend, for 4 hours as mutually agreed, and in the absence of agreement, 10.00am to 2.00pm;

   (g)The father will give the mother 14 days notice if he is unable to be substantially present during time with periods due to work commitments that are not geographically proximate to the mother's address.

   (h)That the father's time with periods with the said child be suspended at the following times:-

   (i)From 3.00pm Christmas Day to 3.00pm Boxing Day for Christmas Day 2014, and likewise for each alternate year thereafter;

   (ii)From 3.00pm Christma­s Eve to 3.00pm Christmas Day for Christmas Day 2015, and likewise for each alternate year thereafter;

   (iii)In the event that Mother's Day should occur when the child is scheduled to be in the care of his father, from 4.30pm on the eve of Mother's Day;

   (iv)In the event that the child's birthday should occur when the child is in the care of his father, if a school day, for 2 hours as mutually agreed, and in the absence of agreement, 3.00pm to 5.00pm, and if a non school day, for 4 hours as mutually agreed, and in the absence of agreement, 10.00am to 2.00pm;

   (v)Such further and other times as may be agreed.

4. That if the father has employment which is two weeks on and two weeks off or a similar roster, then the child shall spend time with the father as agreed between the father and the mother and if not agreed for weekends when the father is available between the then applicable weekend times but not more frequently than once each two weeks.

5. THAT changeover shall occur at McDonalds Family Restaurant, [L] or at [X]’S school on school days unless otherwise agreed between the parties in writing.

6. THAT in the event that for whatever reason the Mother fails to make [X] available to spend time with the Father pursuant to these orders, then such time is to be made up on the next day (where a weekday) and the following weekend (when a weekend.)

7. THAT each party advise the other of any changes to their address or phone number within twenty-four hours of such change occurring.

8. THAT whilst [X] is in their respective care, each party shall as soon as practicable, notify the other of any significant illness or injury suffered by [X] and identify the treating health professional or institution, and where necessary, authorise the other parent to confer directly with the said health professional or institution on all questions relating to the health and welfare of [X].

9. THAT the Father and Mother comply with [X]’S dietary requirements as recommended by his paediatrician and any treating health practitioners.

10. THAT [X] be enrolled to attend [L] Kindergarten for 2015 and [L] Primary School for 2016.

11. THAT the Mother ensure that the Father is listed as a parent and emergency contact at any Kindergarten or school [X] might attend and authorise the Respondent Father to receive copies of all documents, papers and publications ordinarily provided to parents.

12. THAT the Mother authorise the Father to attend all parent teacher interviews, school dramatic events, school sporting events and any other extra-curricular activity ordinary attended by parents.

13. THAT each party shall permit [X] to contact the other parent at any reasonable time he wishes to do so whilst [X] is in their respective care, and shall facilitate the call to the other parent upon [X]’s request.

14. THAT each party be hereby restrained by injunction from:

    (a)Denigrating the other party and or their family members and friends or permitting another person to do so in the presence or hearing of [X].

    (b)Consuming alcohol to excess, or any drugs other than those prescribed by a treating medical practitioner whilst [X] is in their respective care.

    (c)Exposing [X] to cigarette smoke in a confined space or smoking in his presence.

    (d)Denigrating another party on any social network site, including but not limited to Facebook.

    (e)Exposing [X] to any argument, conflict or disagreement between them or discussing parenting matters in his presence.

15. THAT communication between the parties regarding [X]’s general welfare shall occur by either text message or email and shall be undertaken in a respectful and a courteous manner at all times.

16. THAT the child spend time with the respondent grandmother by agreement, and failing agreement, and subject to paragraph 17 herein, from 3.00pm Saturday to 12.00pm Sunday one weekend per month.

17. THAT the spend time arrangements referred to in paragraph 16 herein is subject to the respondent father working interstate, and being unable to spend time with the child for a three week period.

18. THAT the respondent grandmother shall facilitate both pickup and drop off of the child at McDonalds Family Restaurant, [L], at the commencement and conclusion of her spend time arrangements.

AND THE COURT NOTES:

1. THAT pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Werber & Kingsley & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DANDENONG

DGC 1595 of 2013

MS WERBER

Applicant

And

MR KINGLSEY

First Respondent

MS KINGSLEY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcription)

1. The case concerns the mother’s and the father’s one child [X], born [omitted] 2011.  He turned three years old [omitted].  There are three parties:  Ms Werber, the applicant, [X]’s mother, Mr Kingsley, the first respondent, [X]’s father and Ms Kingsley, the second respondent, [X]’s paternal grandmother.

2. The issue between the mother and the father is whether there should be more overnight time for [X] with his father now or whether it should wait until he is older.  The father lives with the paternal grandmother.  She is not proposing any specific orders about the child spending time with her as long as the child is spending the time with the father.  What she proposes is that if the father is away for three weeks or more, there be a specific order in her favour.  She proposes that that there be time once a month and that the time be whatever the weekend time with the father is at that stage. 

3. All parties have detailed proposals.  The mother and father propose orders for equal shared parental responsibility, which is appropriate.  Both parties propose that the child should live with the mother.

4. The mother proposes the time now be each alternate weekend from 9.00am Saturday to 12.00noon on Sunday, each alternate Tuesday from 8.30am until 4.30pm, and each Thursday from 8.30am until 4.30pm.  She then proposes that when [X] is three and a half years old on [date omitted] 2015, the time be 9.00am Saturday to 4.30pm each Sunday, an extension of four and a half hours on the Sunday, and each Thursday from 8.30am until 4.30pm.  When [X] turns four years old on [date omitted] 2015 she proposes the time be 4.30pm Friday till 4.30pm Sunday on alternate weekends, each Thursday from 8.30am until 4.30pm, provided if kindergarten is scheduled on this day the father will facilitate the child’s attendance.  

5. She proposes that upon the child turning five years old on 25 August 2015 which will be just before he attends school the following year, during school terms, 4.30pm on Friday till 4.30pm on Sunday.  She proposes time on Thursday 8.30am until 4.30pm.  This would have to finish once the child starts school.

6. For school holidays which in 2016 she proposes extending the alternate weekend time from 4.30pm Friday to 4.30pm Monday on the first weekend and then in December, 4.30pm Friday to 4.30pm Tuesday, She propose further extensions in 2017.  She does not propose half school holidays until the child turns nine.

7. The father’s proposal is that time should be from 8.30am Tuesday till 4.30pm Wednesday each week, each alternate weekend, 8.30am Friday till 4.30pm Sunday, and each alternate week, 8.30am Thursday till 4.30pm Friday.  He has proposals for Christmas Days and Father’s Day.

8. Once the child commences school, the father proposes time each week from the conclusion of school Tuesday until the commencement of school Wednesday, each alternate weekend from the conclusion of school Friday until 6.30pm Sunday, each alternate week from the conclusion of school Thursday until the commencement of school on Friday. He proposes half school holidays and various provisions for the special days. 

9. There are some matters which are agreed in the father’s proposals: suspension during school holidays and changeover at McDonald’s restaurant at [L].

10. The father proposes an order for notification of a change of addresses and phone numbers, notification of serious illnesses or injuries, that both parties comply with dietary requirements, the father be listed as a parent for emergency contact, the father being authorised to attend the normal school events and that [X] can contact the other parent at reasonable times.

11. The background to the parties’ relationship and the case is that the parties met at secondary school and then lived together from October 2010 until 25 September 2011 in [G], where the father was working as a [omitted].  Separation took place shortly after [X] was born. 

12. There have been some intervention order proceedings.  The mother obtained an intervention order against the father on 13 June 2013, and the mother applied for an intervention order against the paternal grandmother.  The grandmother entered into an undertaking without admissions.  I need to do no more than to record those intervention orders because they do not now figure in the issues in this case.

13. Following separation, [X] has continued to live with his mother. She moved to [L] in Victoria close to her mother.  The mother lives in a house owned by her mother in [L].  Her mother lives at [omitted] and has much to do with [X].  The mother studied for two years and is now qualified as an [omitted].  When the mother was studying two days a week her mother cared for [X] and has cared for him on other occasions.

14. The father initially travelled to Victoria to spend time with [X] and then eventually moved to Victoria.  He initially spent time with [X] an hour each day over a period of two weeks.  There is a difference of opinion between the parties about how many days that happened.  There were proceedings in Queensland which resulted in orders so that the father was spending time with [X] on Tuesdays, Thursdays and Sundays.  It started with one hour and then increased to six hours.

15. Following the commencement of these proceedings, orders were made by consent on 19 August 2013 for the time on Tuesdays and Thursdays 8.30 am to 4.30 pm, and alternate weekends, 3.00pm Saturday to 12.00noon Sunday.  This is the current arrangement.

16. The child has some dietary issues.  But that does not present a problem.  Both parties are aware of them.  He has seen a paediatrician and there is an agreed order that the appropriate diet will be given to [X].  They do not seem to be serious dietary issues, but something that needs to be properly managed.  The mother raises an issue about some residual cigarette smell dealt with in the current orders.

17. The father lives with his parents in [omitted].  That means that when [X] is spending time with his father he is seeing his grandmother.  It seems that the grandmother was joined as a party in these proceedings by the mother because she had been a party to the proceedings in Queensland in the Brisbane Registry, and orders were made in relation to her.

18. The consequence of what has been occurring is this.  That the mother is the child’s  primary carer, is agreed.  Ms S, who has prepared two family reports, one in August 2013 and the second one is dated 23 August 2014, is of opinion that the child has a very good relationship and attachment with the father.  The mother acknowledges this.  She says that now [X] goes happily to see his father and comes back happily and enjoys his time with his father. 

19. The significant evidence in this case is that of Ms S, the experienced family consultant.  She supports the mother’s proposal.  Ms S’s reasons are in her report and appear more strongly from her oral evidence today.  What she says is this.  That in general terms, a child of [X]’s age, three years old, in general terms, could cope with more than one overnight time away from the primary figure.  She said children younger than that can do that, even babies.  Some babies can spend overnight time away from their primary attachment figure.  She said it all depends on the circumstances. 

20. There are two things in this case Ms S sees as significant.  The first is that the overnight time has started in 2013 when [X] was nearly two years old and the other is that there is conflict between the parents.

    
    

    Ms S says they have little ability to communicate and have unresolved issues about each other.  The mother’s evidence was that when she needs to communicate about [X], she sends a text generally to both the father and the grandmother and it is usually the grandmother who responds.

21. What Ms S says is that there is no harm to [X], no harm in his relationship with either parent in leaving things as they are and moving on to more overnight time at a later stage as proposed by the mother.  She says [X] may cope with more overnight time with his father now, but there is a risk that he may not and the risk is that that might cause him some anxiety.  It might cause him to feel insecure and if he did feel insecure, that would affect his relationship with everybody, his mother, his father and all the grandparents.  Ms S repeated this more than once.  She said that if the parties got on well, they could try extra overnight time and if it did not work, and if they were getting on well and communicating then it could be stopped. 

1. She said that for a child of [X]’s age and in his particular circumstances, two nights away from the primary attachment figure, his mother, from time to time would do no harm, but on a regular basis, the risk is that he might start to feel insecure.

2. This evidence has to be considered in the children’s provisions of the Family Law Act 1975 (Cth). The best interests of the child as the paramount consideration-s.60CA. The considerations I must take into account in determining what is in a child’s best interests are in section 60CC.

3. The relevant ones here are the first of the primary considerations, the benefit to the child of having a meaningful relationship with both of the child’s parents, and two of the additional considerations, the nature of the relationship of the child with each of the child’s parents and other persons and the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents.

4. Each parent and the paternal grandmother have given their opinion about the child and whether he would cope with the extra time.  The mother is concerned that he would not.  The father puts it that the child gets on very well and that the extra overnight time he would cope with very well.  The child’s time with his father was best described by the paternal grandmother who is there to observe it.  Her evidence to me sounded quite convincing.  She said that both her sons are good cooks and like cooking so that the father cooks for her and cooks for the child when he is with them.  When the child is there overnight, the father prepares a meal, baths the child, he gets the child into his pyjamas,  he says goodnight to his grandparents, the father reads him stories and the child goes to sleep and sleeps all night.

5. The mother says that [X] has told her that it is the grandmother who gets him in his pyjamas and feeds him and suggests that [X] has said when someone gets up to him in the night it is the grandmother.  It may be that the mother has interpreted some of the things that [X] said to her in that way, but I consider the paternal grandmother’s description of [X]’s overnight time with his father was quite convincing.  Ms S’s assessment of the current situation is borne out by that evidence.

6. Ms S says there is a risk that the meaningful relationship that [X] has with his parents and his grandparents may be affected by him becoming insecure.  Leaving things as they are will do no harm. The same consideration applies to the other additional consideration of the likely effect of any change.

7. I feel compelled to accept the expert evidence of Ms S.  She is a very experienced family consultant and she was very strong in what she said that is [X]’s relationship with each of his parents and the grandparents will remain in their current satisfactory state if things are taken slowly.  If they are pushed too hard there is a risk – she put it no more than a risk to the relationships.  She said that risk could be managed if there was a good relationship between the parents, but there is not.

8. I have put the father’s proposal as in his outline of case.  Mr Hoult, appearing for the father, in his submissions put it that while he accepted that because of Ms S’s evidence I might not accept the father’s proposal of the four nights in the fortnight, I should consider whether there should be additional overnight time.  I feel compelled to take the evidence of the expert that is that not putting in the extra overnight time immediately will not affect the child’s very satisfactory relationship with his father.

9. The grandmother’s has a separate claim.  In the immediate future, there’s no need for an extra order for the grandmother.  It is only if the father may be away.  The father’s occupation is a [omitted].  He holds all the necessary certificates.  He was working in that occupation in [G] when the parties were living together.  He has an offer of employment [omitted] in South Australia working two weeks on, two weeks off.  He has been told that the project has been put on hold so he may be employed at some time in the future.  He may not be. 

10. He does have casual employment as a [omitted] in the area he lives and he has been told that he should expect about a day a week.  If he does not obtain the two weeks on, two weeks off employment, he may obtain other employment.  The nature of his occupation and skills means working on projects which are outside Victoria, that are remote projects and so is fly-in fly-out with a substantial amount of time working and then a substantial amount of time off.  The grandmother’s proposal is that if that happens, there should be an order in her favour for specific time. 

11. Ms S supports the child having time with the grandmother.  She sees it as important to [X] that his relationship with his paternal grandmother be maintained.  I accept what Ms S says.  The mother says there is no need for an order and that she can reach agreement with the grandmother.  The grandmother, I think, has some misgivings.  Ms S’s view is that they cannot and there is a need for a specific order. 

12. The mother’s position is that she has part-time employment on the weekends that [X] is with his father.  She has made inquiries about employment in [omitted] and she believes she has prospects of employment.  She is hoping to obtain work 9 to 5 on some days per week, not fulltime.  She sees that as providing an opportunity for [X] to spend time with the paternal grandmother.  I have got strong evidence from a very well qualified expert that she doubts the ability of the mother and the grandmother to reach agreement. 

13. To make sure that [X] continues to maintain his relationship with the grandmother, there should be an order.  The proposal is that if the father is away for three weeks or more [X] should spend time with the grandmother on one weekend a month.  The grandmother proposed in her outline of case 3.00pm Saturday to 12.00noon Sunday one weekend a month.  Ms Phelan for the grandmother put it that these orders will stay in place for some time and it would promote [X]’s relationship with his grandmother if the weekend time once a month was equal to whatever the fortnightly weekend time would have been with the father. 

14. I think it is better to provide a specific time.  This is a relationship with a grandmother and not a relationship with a father.  Ms S expressed some concern about the extent to which the paternal grandmother was involved.  She was specifically looking at the way communications were being carried out.  She thought the parties needed to move on so that they were parenting the child themselves and the communication was between them, not the grandmother having to take over at least that aspect of the parental role.  There is a difference in a relationship between a grandmother and a grandson and a father and a son.  The combination of factors persuade me that [X]’s best interests are to make the provision for time with the grandmother 3.00pm Saturday to 12.00noon Sunday if the father is away.

15. The father proposes provision for makeup time if he is working two weeks on or two weeks off or similar.

16. The argument in favour of doing that is that the inability of the parties to reach agreement.  The cycle of alternate weekends and his two week on two week off work arrangements might mean limited time if the changeover of his work arrangements required him to travel on a Saturday or a Sunday and coincided with the cycle of alternate weekends.

17. The best I can do is to include a provision that if the father’s work arrangements mean that the alternate weekends cannot be achieved there should be at least one full weekend when the child can spend time with the father. 

18. The child spending half school holidays should not commence until school starts.  Ms S recommended that in her first report.  The matters that Ms S raises will not be there by the time [X] is commencing school, which will be in two and a quarter year’s time.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Associate: 

Date:  25 November 2014