Zachara and Horner

[2018] FCCA 1149

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACHARA & HORNER [2018] FCCA 1149

Catchwords:
FAMILY LAW – Ruling on competing spend time proposals – child not yet two years old – time with father to increase gradually as proposed by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975

Applicant: MR ZACHARA

Respondent: MS HORNER

File Number: DGC 1754 of 2017

Judgment of: Judge Burchardt

Hearing date: 27 April 2018

Date of Last Submission: 27 April 2018

Delivered at: Dandenong

Delivered on: 1 May 2018

REPRESENTATION

Counsel for the Applicant: Mr Grant on 27 April 2018
Mr Rosenhain on 1 May 2018

Solicitors for the Applicant: Ruffin Lawyers

Counsel for the Respondent: Ms Conlan on 27 April 2018
Ms Antonopoulos on 1 May 2018

Solicitors for the Respondent: Barbayannis Lawyers Pty Ltd

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting Orders be discharged.

2. The Mother and Father have equal shared parental responsibility for the child [X] born 2016.

3. That [X] live with the Mother.

4. That [X] spend time and communicate with Father as follows:

   (a)From the date of these Orders until 17 August 2018:-

   (i)In week one, on Wednesday from 12noon until 6.00pm and on Saturday from 12noon until 6.00pm and;

   (ii)In week two, on Wednesday from 12noon until 6.00pm and on Friday from 12noon until 6.00pm;

   (iii)  As otherwise agreed between the parents;

   (b)Commencing 17 August 2018 until 17 February 2019:-

   (i)         Each week from 8.00am Tuesday until 6.00pm Wednesday;

   (ii)    Each Friday from 12noon until 6.00pm;

   (iii)   As otherwise agreed between the parents;

   (c)Commencing 22 February 2019:-

   (i)Each alternate weekend from the conclusion of day care, kindergarten or school Friday (or 3.30pm) until 6.00pm Sunday;

   (ii)    Each Wednesday from 10.00am until 6.00pm;

   (iii)   As otherwise agreed between the parents;

   (d)In the school term holidays as follows:

   (i)When [X] turns 3 years of age for a period of 4 nights as agreed;

   (ii)When [X] turns 4 years of age for a period of 7 nights as agreed;

   (iii)When [X] turns 5 years of age and each year thereafter for half of all school term holidays;

   (e)In the Christmas school holidays as follows:

   (i)When [X] turns 3 years of age for 2 non-consecutive 3 night periods as agreed;

   (ii)    When [X] turns 4 years of age week about;

   (iii)When [X] turns 5 years of age and each year thereafter for half of all such holidays as agreed.

   (f)By Skype or FaceTime communications each Monday between 6.00pm and 6.30pm;

   (g)Each Father’s Day from 12noon Saturday until 6.00pm Sunday of such weekend.

   (h)For the Christmas period as follows:

   (i)In 2018 and each alternate year thereafter from 4.00pm Christmas Day until 4.00pm Boxing Day;

   (ii)In 2019 and each alternate year thereafter from 4.00pm Christmas Eve until 4.00pm Christmas Day;

   (i)For [X]’s birthday as agreed between the parties;

   (j)As otherwise agreed between the parents.

5. Unless otherwise agreed, changeover shall occur at the Mother’s residence when not occurring at [X]’s day care, kindergarten or school.

6. The Mother shall continue to attend upon her treating:

   (a)Psychiatrist or his nominee;

   (b)Psychologist or his nominee;

   (c)General Medical Practitioner;

7. The Mother will comply with all treatment, medication and recommendations of the said professionals referred to in Order 6 herein.

(7A)The Mother will provide a copy of the Family Report dated

4 September 2017 to the said professionals.

1. In the event the Mother’s mental health deteriorates, as determined by her treating Professionals or any other Professional involved with the Mother (at that time), or the Mother is hospitalised due to her mental health, the Mother or her nominee will as soon as practicable notify the Father of same.

2. In the event of such health deterioration or hospitalisation, the Mother forthwith authorise her treating Professional at the time to communicate directly with the Father.

3. The Mother and Father, their servants and/or agents are restrained by injunction from:-

   (a)Denigrating the other parent in the presence or hearing of [X];

   (b)Exposing [X] to any parental conflict;

   (c)Discussing these proceedings in the presence or hearing of [X].

4. The Mother and Father forthwith enrol, attend and successfully complete an Accredited POP Program and provide a copy of Certificate of Completion to the other party as soon as practicable.

5. The Mother authorise any day care, kindergarten or school [X] attends to forward to the Father, at his expense, if any, copies of all newsletters, reports and any other documentation usually forwarded to parents.

(12A)The Father’s time be suspended each Mother’s Day from 12noon Saturday until 6.00pm Sunday of such weekend.

1. The Mother and Father, as soon as practicable, will notify the other parent of any serious medical condition affecting [X].

2. [X] be at liberty to contact the other parent at any reasonable time.

3. The Mother and Father will keep the other parent advised of any changes to their residential address and contact numbers within 72 hours of such change.

4. The Order for the appointment of the Independent Children’s Lawyer be discharged.

5. Liberty to Apply.

IT IS NOTED:

A.The Mother has indicated a willingness to facilitate changeover at Town A in the distant future in relation to overnight time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1754 of 2017

MR ZACHARA

Applicant

And

MS HORNER

Respondent

REASONS FOR JUDGMENT

1. This case concerns the best interests of a young child, [X], born on 2016.  His father was born on 1984 and his mother was born on 1981.  Cohabitation between the parents started in either 2014 or 2015.  Marriage followed on 2015 and separation took place on 2 December 2016.  [X], it will be observed, was only three and a half months old at the time of separation.

2. The father is a (occupation omitted).  When the parties met the mother was a (occupation omitted) in Melbourne.  During the relationship the parties lived predominantly at various locations around Victoria where the father worked.  He now works as a (occupation omitted) at Town A.  Since separation or shortly thereafter, the mother has lived and continues to live with her father at Suburb 1 in the outer suburbs of Melbourne, albeit it is fortuitously on a better side of Melbourne than could otherwise have been the case.

3. There is a dispute between the parties as to the care of [X] before separation, although as I pointed out, he was only three and a half months old when that took place.  The father says he was a hands-on parent but the mother wholly denies this.  On any view, as I mentioned, this was only for a short period of time.  After separation [X] lived with the mother and spent time, including overnight time, with the father.  The mother says the father pressured her into this.  The overnight time ceased subsequently and orders for the father to spend time with [X] have been made which do not include overnight time.

4. As things stand, the issues have crystallised.  I should say I am largely working on the basis of the Independent Children Lawyer’s minute because it sets out the various issues seriatim.  The first matter that arises is when overnight time should start.  Everyone agrees it should, the question is when.  The father says it should commence immediately and, indeed, he made it very clear, and I accept that he sees it this way, that this was not the commencement of overnight time but rather a resumption of overnight time, as he saw it.

5. The mother says that overnight time should start in February 2019 when [X] is two and a half.  It should be noted that the father’s Amended Initiating Application filed as recently at 17 April 2018 seeks that the child live with the mother and spend time with the father.  There has been no application for residence on the father’s part.  In evidence, however, the father was more nuanced.  He said he would love to have [X] full time.  His reason for this, as he expressed it, was that he is more stable than the mother.

6. In fact, that is, in part, correct.  The mother, most regrettably, has a significant mental health history and her mental health requires ongoing treatment.  She became extremely unwell during the marriage.  This is not a matter for criticism but for sympathy.  The father’s Affidavits, and more particularly his oral evidence, remain, in my view, accusatory rather than sympathetic to her conditions.  Nonetheless, the evidence of her treating psychiatrist Dr M is clear, the mother is fine, she is treatment compliant, she has insight into her condition.

7. The father’s suggestion that he should be the primary carer as a result of the mother’s past mental health and ongoing difficulties, in my view, shows a marked lack of insight.  Similarly, his understanding of the overnight time regime in place from separation until August 2017 shows likewise a lack of insight.  The evidence of Mr P was extremely clear this initiative was a big mistake.  The mother’s account of the sequelae to it was entirely typical with Mr P’s very extensive experience.  I note that Mr P has pointed out that the mother would not have known what she was telling him was consistent with other experience.

8. I would point out having a child spending from 10:00 am Saturday to 5:00 pm Sunday at the age of four months at which time he was still being breast fed is a regime, as it transpired, self-evidently entirely focused on the father’s demands and not those of the child.  The father’s criticism of the mother’s health are not made out.  Dr M was a good witness and it is not necessary to say more about this aspect of the dispute than that.

9. Turning to the mother’s situation.  She is, in my view, still suspicious and ambivalent about the father.  When asked about the good things in the father she gave numerous examples.  The one thing she did not volunteer, however, was that the father loves the child.  The father has certainly done one or two stupid things.  Taking a child on a motorbike in a BabyBjorn beggars belief but, greatly to his credit, when this was pointed out to him as being inappropriate he agreed not to do it again.

10. Mr P’s evidence was clear first, [X] needs more time with his father; second, the parents are not in synchrony in any way as to how this matter should progress; third, the Court should adopt a more cautious approach if the parents were unable to agree as they have been and, fourth, there was no reason to delay the overnight time except for the parental discord.  I note the parents are going to undertake a Parenting Orders Program as soon as possible and this can only benefit them.

11. Coming to the proposals as in the Independent Children’s Lawyer’s minute, the equal shared parental responsibility is agreed; it is agreed that the child live with the mother, this is so despite the father’s, in my view, misconceived assessment of the mother’s health and its difficulties.  The spend time regime proposed by the Independent Children’s Lawyer is predominantly supported by the mother.  If I turn to order 4(a) proposed by the Independent Children’s Lawyer, from now until [X] is two he would spend time on Wednesday from 12:00 pm until 6:00 pm with the father, Saturday from 12:00 pm until 6:00 pm, and in the second week from 12:00 pm until 6:00 pm and from Friday from 12:00 pm until 6:00 pm.  These are the extant orders.

12. The father’s position is there should be time from 9:00 am on Tuesday until 5:00 pm on Wednesday and Friday 12:00 pm until 6:00 pm.  The father wants overnight time now but Mr P does not support overnight before two because of the poor parental dynamic.  I agree with Mr P.  Hopefully the conclusion of this case and the Parenting Orders Program will help the parents to move forward.  Despite all the good things that they very properly said about one another, the parties are still suspicious and critical of one another.

13. The mother’s position to an extent is understandable.  The introduction of overnight time was not a success, as the father suggests.  It produced classic symptoms in the child.  Mr P has said matters should move somewhat slower as a result of the lack of cooperation and synchrony between the parents.  I accept that the Independent Children’s Lawyer’s proposal is preferable and I point out that this will actually last for only three months or so, which is not long. 

14. Turning to order 4(b), when [X] is two the Independent Children’s Lawyer and the mother support 8:00 am Tuesday until 6:00 pm Wednesday, this, I think, is agreed by all, and Friday 12:00 pm until 6:00 pm.

15. The father’s position, however, would extend the time from 10:00 am Tuesday until 6:00 pm Thursday, in other words, two nights.  In my view, once again Mr P’s evidence was clear.  The lack of synchrony between the parents makes it appropriate to move cautiously.  The Independent Children’s Lawyer’s proposal is sensible.  It is, after all, the start of overnight time and two nights straightaway would be too much. 

16. Turning to order 4(c).  The Independent Children’s Lawyer and the mother, from 22 February 2019 which is when [X] turns two and a half, support from after school or kinder, as the case may be, on Friday until 6:00 pm Sunday.

17. The father’s position is 10:00 am Tuesday until 6:00 pm Thursday.  This is not actually going to make any real difference to [X].  At his age it is more probable than otherwise that he will, in fact, not know which day of the week it is he is spending time with his father.  Each side’s position is, and I say this, it is understandable that it be so, designed best to suit their own position.  The father can more easily get staff to cover his work during weekdays.  I accept that that is so.  Also presumably weekends will cost him somewhat more with weekend pay rates.  As I find, the father is somewhat sensitive about his pocket. 

18. The mother wants weekends which are more suitable if she obtains employment.  Clearly that is correct.  She is seeking employment, given her finances she has no real choice.  These orders will apply from next February, some months away.  In my view, it is more probable than otherwise she will obtain employment by then.  She is getting close to being able to undertake emergency (occupation omitted) work even as things are.  The Independent Children’s Lawyer proposes overnight on the weekends and I agree.  It has an additional advantage of avoiding direct contacts at one pickup.  It gets the child into a weekend routine on an ongoing basis which will undoubtedly apply when he goes to school.  I readily appreciate there are practical problems for the father in this regime but while the matter is finally balanced the factors of the mother’s future work, a changeover at kinder and school and so on, which incidentally gives the father an opportunity to have some involvement in those aspects of this child’s life, and the desirability of getting into a routine which should be ongoing on a continuing basis make the Independent Children’s Lawyer’s proposals better.

19. But the Wednesday in the alternate week should be from 10:00 am until 6:00 pm. I note that Mr P said that two days with an overnight and one long day was getting close to what might be desirable. So it should be a longer period in the alternate week from 10:00 am until 6:00 pm.

20. Turning to order 4(d), which is the School Holidays.  The Independent Children’s Lawyer’s proposal is first, when [X] is three there be an additional four nights, second when he is four an additional seven nights and then when he is five half the term holidays.

21. The mother largely adopts this proposal but says that four nights should be added to an alternate weekend when he is four.  The father, unless I have overlooked the matter, has been silent about school holidays until actual school commences.  In my opinion, the Independent Children’s Lawyer’s proposal is a sensible gradual approach.  I should point out that there is a certain absence of any direct evidence as to the desirability of any of these competing proposals in relation to this matter in any event.

22. So far as the long school holidays are concerned, in order 4(e) the Independent Children’s Lawyer proposes that when [X] is three there be two periods of three nights, when he is four it be week about and when he is five half the school holidays as agreed. The mother says when he is five there should be week about, when four there should be four nights added to the alternate week. Once again, the father’s proposal is opaque. Once again, there is no real evidence one way or the other about these matters but the proposal put forward by the Independent Children’s Lawyer seems to me to be sensible.

23. I should note that by the time the child is at school the orders of the parties coalesce.  The time proposed for Skype in subparagraph 5 is agreed as is the time on Father’s Day in subparagraph G.  So far as Christmas is concerned, the father’s proposal suggests, in effect, that there be a block from Christmas Eve to Boxing Day in alternate years with each parent on a succeeding basis.  Given the tyranny of distance this case involves, there is some superficial attraction to that.  However, in my opinion, it is not appropriate that a child of this age should not spend Christmas Day with both of their parents.

24. So it then becomes a matter of trying to work out what times might actually work.  I have given some thought to this, the time should be shared even if it is inconvenient.  I should emphasise that it is about the child, not the parents.  The child will want to get their presents from both parents on Christmas Day.

25. The next matter to consider in order 5 is the changeover.  The father does not like doing all the driving and that is very understandable.  However, I noted a marked reluctance on his part when he was pressed as to what his reasons to support this reservation is.  He did, to his great credit, say he would do whatever helps [X].  The mother does not, at least at the moment, want to go to Town A or even halfway to Town B.  Dr M supports this position, at least in part.  The mother does not presently have the cash to travel although this may change if she works, although it is impossible to say how much.

26. The mother will feel more in control at her own home and this will make for less tense handovers apart from those, of course, that take place at kinder and school and so on.  I think an absence of such tension is very important for [X], who as he gets older will only become sensitive to any tensions between his parents.  In my view, the changeover should be at their mother’s home.  The reservations she has about going to Town B, let alone to Town A based upon her own perceptions as to the past experience are a very significant matter.  Other orders in the minutes proposed are agreed and I repeat again.  Order 11 for the Parenting Orders Program will benefit both parents if they properly engage with it.

27. The last issue that is left outstanding as I see it is the question of liberty to apply.  It will be ordered, of course, that the mother notify the father in the event that her health deteriorates in any significant way.  I do not want to encourage further litigation, but in reality, if the mother is really ill, it is going to be in the child’s best interests to get the matter into Court in the event of disagreement quickly rather than more slowly.  Putting the father to the expense and time of an Application in a Case is not going to be in anybody’s best interests.

1. I note that this was not the position contended for by the mother, and I can understand where it is coming from, but in my view, there should be liberty to apply.  It is a logical corollary of the notification procedure.  I would emphasise, of course, that I only expect that liberty to apply be utilised by either party on the proper occasion for it to arise.  This is not a means for the party to come back on minor or any interim kind of disputes as to implementation.  Bearing all that in mind, I thought what I would do is ask Ms Stavrakakis to incorporate those changes into the draft and mention it when that is done.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 1 May 2018