Zachary and Bridges

[2007] FamCA 1314

FAMILY COURT OF AUSTRALIA

ZACHARY & BRIDGES [2007] FamCA 1314

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time – Day to day parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Mr Zachary

RESPONDENT: Ms Bridges

FILE NUMBER: SYC 4173 of 2007

DATE DELIVERED: 16 October 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: JR Loughnan

HEARING DATE: 16 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fox

SOLICITOR FOR THE APPLICANT: Aristole Paipetis

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Craddock Murray Neumann

Orders

1. Pending further order unless the parties agree to the contrary the father spend time with the child born … November 2006 subject to the necessary consent of the T Contact Service or such other contact service upon which the parties can agree, between 12:30 pm and 1:30 pm each Monday and Thursday.

2. At the conclusion of a period of two (2) calendar months from today’s date that is to increase subject to the convenience of the T Contact Service or other service and subject to the father meeting the necessary costs, from 12:30 pm to 2:30 pm each Monday and Thursday.

3. Until further order the child otherwise live with the mother.

4. Until further order the mother is to have sole parental responsibility for the day to day decisions in relation to the child and in relation to any emergency medical treatment for the child AND IT IS NOTED that that order is not intended to excuse the mother from her obligation to keep the father informed in relation to the child and where practicable to seek his consent to any significant decision.

5. By consent the proceedings are transferred to the Federal Magistrate’s Court sitting at Sydney AND the Court requested that the Registry Manager facilitate the transmission of the papers to the Court as soon as practicable.

6. The proceedings are listed in the Federal Magistrates Duty List on a date to be allocated by the Federal Magistrates Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4173 of 2007

MR ZACHARY

Applicant

And

MS BRIDGES

Respondent

REASONS FOR JUDGMENT 

1. These are proceedings in relation to a child born in November 2006. She is nearly 11 months of age.  The father is 38, the mother is 42.  As I understand it, the father works as a part-time tradesman.  He lives in P.  I think he lives there in a property with a new partner and two students.  The mother lives at C in a property owned by her family.  It may be that members of her family live there too. 

2. The parties commenced cohabitation, according to the husband, in December 2005. The wife says April 2006. That is an important difference because the parties were married in February 2006. Sadly, less than three months later, they were separated (in May 2006).  They have been divorced, a decree nisi pronounced by the Federal Magistrates Court in August 2007. 

3. On the mother's version of events the parties did not start living together until after they were married.  On the father's version the parties were virtually living together from December.  It is agreed that the parties were separated by six months when the child was born.  That fact I think and the fact of the circumstances of their relationship have had a devastating impact on their capacity to cooperate and to manage the father's involvement with the child.  The first contact with the child seems to have been on 14 February 2007.  The father says the mother frustrated earlier appointments.  That does not seem to be reflected in the records of the contact centre because there is a letter dated 1 February that appoints 14 February as the first contact date.  So when the father says he went through an initial assessment on 1 February it is hard to see how the mother could have frustrated the arrangement.

1. The father says that he was spending an hour a week with the child on Wednesdays and Saturdays and now Thursdays.  When he swore his affidavit the times were 3.30pm to 4.30pm. I was told that it has recently been from 12.30pm to 1.30pm. 

2. The parties have seen a counsellor and the counsellor, interestingly, has recommended the appointment of a Chapter 15 expert, being a psychiatrist. 

3. It is an agreed fact that the mother has insisted on the father's contact being supervised.  The parties cannot agree on any supervisor other than the T Contact Service.  I am told that there might be another service available, equally inconvenient in the local area. 

4. The father says he has done what he was asked to, there was no reason for supervision in the first place and now it is time for the arrangement to move on to a more normal one.  His case is really based on the inconvenience to him of the restrictions and the limitations of the current arrangements. The child does not get much of a mention in his affidavit.  As I said to his counsel, there is some sense in that in this case because, albeit that there are factual circumstances alleged by her which would give rise to an objective basis for concern about the father's capacity to care for the child, the mother's main case is that there is an impact on her and her capacity to parent the child caused by the apprehensions of unsupervised time between the father and child.  She says those apprehensions arise from the circumstances of their relationship. The father was born in Poland and came here in 2002. The wife concedes that long before the parties started to live together she sought out some legal advice for him in relation to immigration. There was discussion about the concept of a marriage being of assistance to him in relation to his immigration.  The parties' marriage lasted nearly three months. The result has been that the parties do not have the thing that anchors many relationships between parents, that is, a significant period of cohabitation, spanning the birth date of a child.  We do not have that stability here. 

5. Nextly, the mother says that she has a reason to believe that the father caused her to contract the herpes virus and that was something that embarrassed her. She says she was told that the virus was part of the reason why she was required to have a caesarean section for the child.  The father absolutely denies that and he has some medical evidence from somebody who says that he or she conducted a testing procedure. The father says that suggests that he did not have the virus at a relevant time. I will come back to that in a moment. 

6. The mother says that the father has a quick temper.  She cites an occasion when he went off at one of her brother's who was not carrying a washing machine in a way that was to the father’s satisfaction.  The father says the event caused a heavy washing machine to be left solely in his arms and that he was hurt and that was what he reacted to. He denies that his reaction was a fit of pique or anything else.

7. The mother says that the father said on one occasion to her in a telephone call, "I've been watching you."  It led her to an apprehension of stalking.  He denies that altogether.

8. The maternal grandmother says there was an occasion when she had the care of another grand child and the father came to the house and scared her and that child when he was trying to locate the mother.  I think the father effectively denies that altogether. There is some other supporting affidavit material suggesting that there has been an observation of the father being controlling and belittling on occasions when that person saw the parties together.  The mother says that the father was angry and frustrated with a yapping dog that she loves, threw the dog against the wall and albeit that he did not hurt the dog, he made a suggestion that he would kill the dog.  The father says he loves the dog and could never hurt it but he might have said something in jest.

9. There is a little bit of corroboration for the mother's case in that she has seen a general practitioner. The general practitioner has an opinion but does not tell us how she arrived at that opinion, that the mother might be extremely distressed and it would impact on her parenting, if the father has unsupervised time with the child. We are left with that broad statement.  We are left with a copy of a medical certificate which would have no weight.  It looks very much like a certificate prepared for the purpose of these proceedings and would be excluded on that basis. Then there are the uncollated notes of a psychiatrist, a Dr L, who is not on affidavit, and who has not qualified himself or herself to give an opinion. It is obvious that most of the information contained in the notes has simply come from the mother.  For example, a description of the mother as being internally driven, calm, driven by control, organisation and routine does not help much.  

10. Then there is some material from the Child Support Agency where the father told the Agency for reasons that are not immediately apparent, some things a little inconsistent with what he has told this Court.  He lost an eye in a workplace accident.  His case before me, supported by an ophthalmologist, is that he is fine to drive. That is not what he told the Registrar. He said things to the registrar consistent with him being very angry with the wife’s family. He referred to "the wife and her selfish family". He makes reference to "wife is saying different stories to different institutions".  Unfortunately, in this instance it is the pot calling the kettle black. He said “Thanks to my wife, my life is ruined.” 

11. So there is not much, but there is some suggestion not inconsistent with the mother’s concerns about aspects of the father's behaviour. 

12. I am not able to make findings about these things without independent evidence which excludes one version of events or wholly supports another. There is no independent evidence of that nature here.  It is a particular problem for the father in this case that he is dealing with concerns that are subjective as well as objective.

13. As I say, the wife's case is both "there are these objective concerns, but, in any event, I say my parenting will be impaired".  There is no testing of that.  It is a terribly unfair proposition to have to face and it is hard for the father to do anything about it, notwithstanding that a manful effort has been made today to try and do it. 

14. I am stuck with the facts.  The parties sought each other out and decided to have a child. That child was born after they separated.  They do not have the security of a long period of cohabitation behind them. It may be, as I think the father fears, that the mother is motivated, for good reason or bad, by an attempt to exclude him altogether from the child's life. That could be true. She does not have any long-term graduated proposals for a suitable regime of time between father and child. There might be good reasons for that or it might be a reflection of that concern.  To his credit, the father has persisted.  There is some reference to him being late on occasions, but he has by and large attended when he could and spent time with the child.  He has pursued his application, and that is not an insignificant thing.  It is an expensive thing, it is frustrating, it is slow, and it takes a while for the court system to move forward. 

15. That is to his credit and it contradicts the negative view that the mother has because it is a very odd person in my long experience in this jurisdiction that pursues an application to see a child just for the opportunity to irritate the other parent.  The most likely reason why the father has persisted is because he has a genuine affection for his daughter and he wants to have a proper relationship with her. The happy fact is, the child has two parents who apparently love her and they will be her parents forever.  So the parties need to work out some way of having an accommodation between themselves, otherwise their lives and the child's life is going to be a misery. 

16. It is certainly the case that supervised time is not a viable long-term solution.  There is some case law about it. Supervision can only be for an interim period.

17. Having said all of that, I am dealing with an interim period.  I am asked to make a decision about what would be in the child's best interests.  The tiny bit of independent evidence, belatedly put before me today contains comments from three or four occasions at the contact centre. The observations were of a child that separated reasonably easily from the mother, of a father who competently dealt with the tasks, on one occasion of changing a nappy, who competently settled the child during a period when she was upset.  As best one can tell, the observations were of a positive experience.  On the other hand, there is nothing put in the wife's material to suggest any harm, nothing from the centre to point to any occasion when the child did not thrive.

18. Because there is no mention of the child in the father's affidavit, we do not have the positive side of those interactions. So we do not have anything about why it would be in the child's best interests to move to a less supervised arrangement.  Nothing about the difference in the child's affect on the occasions that he saw the child,  nothing about the child's milestones, nothing about his interaction with the child on a consistent basis developing over time. 

19. So we are left in the dark in a bit. I do not have any choice in these circumstances but to continue the supervision. If the father says that it is impracticable for him to exercise the time on a weekly basis or a biweekly basis or for the time that is being sought, that is a matter for him absolutely.  He can see the child less often.  I certainly would not impose on him and the child any arrangement that he cannot manage.  In my view, there is no reason why it should not be twice a week.  It would be ideally separated out.  An 11-month-old baby has no understanding of time.  So the ideal arrangement would be a split arrangement so that the gaps between the occasions were minimised.  I think the learning is that the child will bond to some extent no matter what the arrangement, provided it is a positive experience for the child.  There is no rule about that only happening if the child is with somebody for four hours or 10 hours or 12 hours or six hours, and certainly nothing has been put to me in that regard in relation to this case. 

20. Therefore, to the extent that the father says he can manage it and can afford it, I think the time should be one hour on each Thursday and Friday.  It needs to be necessarily an arbitrary period, perhaps two months from today, when the occasions should increase to two hours on each of those days, as I say, subject to the father being available.

21. There were submissions about the possibility of other supervisors.  There are none available.  There is an issue about payment.  The father does not say he cannot afford it, but says it would be fair that the mother pay, because he is dealing with her fears.  In my experience, in circumstances where there is a doubt about it, the best thing is to keep responsibility for payment with the person most motivated to make it happen. Otherwise there is the spectre of the occasions being frustrated if the mother does not make her contribution for one reason or another. 

22. Happily, I am told that what was a $44 payment for an hour has been reduced to $17.50.  So there will not be a significantly increased impost because of the circumstances. 

1. There is an issue about parenting responsibility.  There is an argument that that presumes on the final hearing. Given the parties enjoy such an awful relationship; it would be sensible if it is clear that the mother parental responsibility relating to day to day matters and any emergency decisions.  That does not absolve her from her responsibility, where practicable, to notify the father and, where it is practicable, to seek his consent. But at least it leaves it clear and there will be no confusion if there is a medical emergency.  It is sensible in the circumstances to have an order as to where the child lives for the rest of the time. All of these orders are going to be made until further order. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date:  9 November 2007