Durand & Morel [2009]

FAMILY LAW – Children – equal shared parental responsibility – lives with – spends time with – four year old child having difficulty separating from mother – mother not heeding advice of staff of Contact Centre to leave quickly and make her goodbyes short.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That MS MOREL (“the mother”) and MR DURAND (“the father”) are to have equal shared parental responsibility for [X] born in 2004 (“the child”).
(2) That the child is to live with the mother.
(3) That the child is to spend time with the father as follows:

• (a) prior to the start of school in 2010, on a fortnightly cycle as follows:
  • (i) in week one, from Thursday after kindergarten or at 3.00 p.m. until 5.00 p.m. on the following Sunday;
  • (ii) in week two, from Thursday after kindergarten or at 3.00 p.m. until 9.00 a.m. on the following Friday.
• (b) From the start of school in 2010, during school terms on a fortnightly cycle as follows:
  • (i) in week one, from Thursday after school until 5.00 p.m. on Sunday;
  • (ii) in week two, from Thursday after school until the start of school on the following morning (Friday).
• (c) Commencing in the Easter break in 2010, for half of each school holiday (inclusive of the Easter break) as agreed between the parties, but failing agreement as follows:
  • (i) for the first half of the Easter break, May/June and August/September school holidays in odd numbered years and for the second half in even numbered years; and
  • (ii) week and week about during the long summer school holidays commencing in the first week in odd numbered years and in the second week in even numbered years.
• (d) If the child is not otherwise spending time with the father pursuant to these orders:
  • (i) from 10.00 a.m. until 5.00 p.m. on Father's Day; and
  • (ii) from 4.00 p.m. until 7.30 p.m. on each of the child's birthday and the father's birthday.
• (e) From 12.00 noon on Christmas Eve until 3.30 p.m. on Christmas Day in 2009 and in alternate years thereafter.
• (f) From 3.30 p.m. on Christmas Day until 5.00 p.m. on Boxing Day in 2010 and in alternate years thereafter.

(4) That unless the parties otherwise agree:

• (a) for the purposes of paragraph (a) of Order No. 3 hereof;
  • (i) the father is to collect the child from her kindergarten on Thursdays, but if it is not a day on which she would be attending kindergarten, he is to collect her from the car park at [omitted] (“the car park”);
  • (ii) he is to return the child to the mother at the Launceston Children's Contact Centre, or the car park if that Centre is not available on Sundays; and
  • (iii) he is to return the child to the mother at the car park on Fridays.
• (b) for the purposes of paragraphs (b) to (f) of Order No. 3 hereof;
  • (i) if any relevant day is a school day, the father is to collect the child from her school and return her to her school; or
  • (ii) if any relevant day is not a school day, he is to collect her from the car park and return her to the car park.

(5) That if the child is otherwise spending time with the father pursuant to these orders on Mother's Day, on the child's birthday (other than pursuant to Order No. 3(d)(ii)) or on the mother's birthday, that time is to be suspended on Mother's Day from 10.00 a.m. and on each of the child's birthday and the mother's birthday from 4.00 p.m. until
7.30 p.m.
(6) That if either the father or the mother is unable to provide personal care for the child for any period exceeding 48 hours, that parent must provide first option of care for the child to the other parent for that period.
(7) That the father and the mother are each restrained from removing the child from the State of Tasmania without first obtaining the other party’s consent or an order of a Court of competent jurisdiction.
(8) That the father and the mother are each restrained from smoking in the presence of the child in any motor vehicle, building or similar confined space or from permitting the child to be in the presence of any other person who is smoking in any motor vehicle, building or similar confined space.

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

LNC 46 of 2008

Applicant

And

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings are about a four year old child who is affectionately known as “[X]” to her parents. I will refer to her simply as “the child”.
2. The child’s parents were in a relationship together from 2000 until July 2006. I will generally refer to them as “the father” and “the mother”.
3. The child was born in 2004.
4. The father started these proceedings in the Family Court of Australia by an application filed in September 2006.
5. In November 2006 the parties agreed to interim orders which provided for the father to spend time with the child on a gradually increasing basis, culminating in each alternate weekend from Friday at 9.00 a.m. until Sunday at 6.00 p.m. and on each Tuesday and Thursday for three and a half hours. Other interim orders providing for the child to spend time with the father at Christmas were also made at that time. Those interim orders appeared to work reasonably well until early 2008.
6. The proceedings remained in the Family Court for more than a year after those orders were made, and following a number of procedural mentions and two conferences, they were transferred to this Court on 30 January 2008. On 25 February 2008, I ordered that the child to be independently represented.
7. On 31 March 2008 I made an order for a Family Report. That report (“the Family Report”) was released on 23 May 2008.
8. On 2 June 2008 the matter was set down for hearing in the July sittings of this Court in Launceston.
9. On 17 July 2008 the Family Consultant who had prepared the Family Report gave evidence as the first witness. After some negotiations following the Family Consultant’s evidence, the parties agreed to some interim orders which provided for the father to spend time with the child each weekend from 6.30 p.m. on Friday until 4.30 p.m. on Sunday with the handover of the child taking place at the Launceston Children’s Contact Centre. They also consented to an order requiring them both to attend the Parents in Contact Programme conducted by Relationships Australia (“the PIC Programme) at the first available opportunity. That had been recommended by the Family Consultant in the Family Report.
10. It is quite clear that those orders were intended to resolve difficulties that had previously been occurring on a regular basis in relation to the handover of the child. Indeed, the clear evidence was that from approximately February 2008 handovers were not generally successful and, as a result, the father had simply been having contact with his daughter on the nature strip outside the mother’s home.
11. The hearing of the matter resumed on 16 and 17 September 2008. At that time the Family Consultant did not give any further evidence, but a transcript of the evidence that she gave on 17 July 2008 had been made available to counsel. The Co-ordinator of the Launceston Children’s Contact Centre and the parties gave oral evidence at the resumed hearing.

Terminology

1. Throughout these Reasons I will refer from time to time to the father’s “contact with” the child. I do so deliberately and will use that term interchangeably with “spend time with”.
2. In a decision in early 2008,[1] FM Walters did something similar when he said:
   • Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
3. In a similar vein, in both Carpenter and Lunn[2] and Chappell and Chappell[3] slightly differently constituted Full Courts of the Family Court of Australia said:
   • ... ... The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
4. In my view, those sentiments make grammatical and legal common sense, which I intend to apply.

What is agreed, and what is not agreed

1. The parties agree that they should share parental responsibility for the child equally.
2. It is common ground that the child should be with her father every second weekend during school terms. However, the father wants that to be from Thursday afternoon until Sunday evening whereas the mother wants it to be from Friday evening until Sunday evening.
3. The father also wants the child to be with him overnight for one night during each other week during school terms and that is not agreed.
4. It is also agreed that the child should be with her father for half of the Easter school break and the school holidays at the ends of first and second terms from 2010 onwards. The father wants her to be with him for half of the Christmas school holidays as well. Although the mother's Response was silent about those particular school holidays, her counsel suggested in his closing submissions that there should be “perhaps two separate weeks or some such period of the Christmas holidays”.
5. Although the parties do not agree exactly upon the timing, they do agree that the child should have contact with her father on his birthday, her birthday and on Father's Day. Similarly, they appear to agree that the child's contact with her father should be suspended to enable her to enjoy time with her mother on the child's birthday, her mother's birthday and Mother's Day.
6. The parties also agree that neither of them should bring the child into contact with anybody who is smoking in a confined space.
7. The orders sought by the father in relation to the child's time with him are expressed as "live with" orders, whereas the mother clearly prefers that any such order should be expressed as "spend time with".
8. The father also sought an order to enable him to take the child to Queensland for 10 days from 26 December 2008. That order was opposed by the mother.

Difficulties at handovers

1. What is set out in the preceding paragraphs does not alert one to the pressing issue in this matter, which was clearly identified by the Family Consultant in the Family Report. She said:
   • Essentially, the focus of the parental conflict surrounds the parents’ inability to successfully transfer (the child) from her mother's care to spend time with her father. According to both parents these events which once were successful are now extremely distressing for both (the child) and her parents.[4]
2. It became very clear from the outset that, for some months prior to this matter coming on for hearing on the 17 July 2008, the child had some significant difficulties separating from her mother and going with her father. This was essentially why the father's contact with the child occurred on many occasions on the nature strip outside the mother's home.

Relevant law

1. Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[5].
2. Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
   • ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
   • protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
   • ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
   • ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [6]
3. Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
   • children have the right to know and be cared for by both their parents; and
   • children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
   • parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
   • parents should agree about the future parenting of their children[7].
4. In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
5. There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[8].
6. The court must also take into account those of the “additional considerations” that are relevant[9].
7. There has been some academic debate about the relative weight to be given to “primary considerations” and “additional considerations”. No doubt, that debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
8. The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[10]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child[11].
9. However, if that presumption does apply, it does not necessarily follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
10. If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
    • consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
    • if it is, consider making an order to provide for the child to spend equal time with each of the parents.[12]
11. However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[13]
12. In Goode & Goode[14], the Full court of the Family Court of Australia concluded that the word “consider”:
    • ...suggests a consideration tending to a result, or the need to consider positively the making of an order...[15]
13. The law requires that any orders that I make must be in the child's best interests so I propose to consider the evidence in the light of section 60CC.

Primary considerations

The benefit to the child of having meaningful relationships with both parents

1. It seems to be unchallenged that the child has a very meaningful relationship with the mother. This is hardly surprising, because she has been the child's primary carer.
2. I am satisfied that, notwithstanding the difficulties that have occurred in recent months at the time of the handover of the child, she also has a meaningful relationship with her father. I will refer to this further below.

The need to protect the children from harm from abuse, neglect or family violence

1. The mother sets out incidents of alleged violent and abusive behaviour on the part of the father.[16] In general, the father denies any violent behaviour, but he does admit to having heated arguments with the mother in the presence of the child. He also accepts that it was inappropriate to have such arguments in her presence.
2. Most of the incidents set out in the mother's affidavit occurred prior to in the parties' separation. I am satisfied that violence and abuse is no longer an issue between the parties, and further, that it was not of great concern to the mother shortly after separation. It is of some significance that neither violence nor abuse was mentioned in any of the early letters sent to the father by her solicitors.
3. At this time I do not see the need for any orders to protect the child from violence or abuse. However, I refer the mother in particular to what is contained in paragraph 57 below.

Relevant additional considerations

The child’s views

1. In my view, the child is too young to have any relevant views about the issues that I must decide. However, it is clear that she enjoys her time with both parents.

The relationships of the child with the parents and other people

1. In the Family Report, which is described by the Family Consult as a "brief assessment", the author says:
   • Both parents appeared to be child focused in their play with the child and interacted with her in a caring and loving manner.
2. She went on to say that the child "clearly enjoyed her time with both her parents".[17]
3. On the two occasions between 17 July and 16 September 2008 that the child was able to separate from her mother and spend weekends with her father, the staff at the Launceston Children's Contact Centre reported that she was happy on each occasion when she was returned to the Centre.
4. I therefore conclude that the child has warm and loving relationships with both of her parents.

The willingness and ability of the parents to facilitate and encourage the relationship with the other parent

1. I am of the opinion that this is an important consideration in relation to this matter.
2. The mother says the following in her affidavit:
   • Despite all of the above matters, I do seek to encourage and to facilitate a good relationship between (the father) and the child and them spending time together.
   • I have tried my very best to encourage and get the child to go with (the father) and will continue to do so.
   • It is my evidence that the current difficulties with handovers are not my fault.[18]
3. On the other hand, the father is of the view that the mother is deliberately making it difficult for the child to separate from her and go with him. His scepticism in relation to the mother’s statements set out above is understandable because the material before the Court is replete with instances where the mother has clearly not complied with advice given to her by the staff of the Launceston Children's Contact Centre.
4. On numerous occasions members of staff at the Launceston Children's Contact Centre advised the mother verbally to leave quickly and make her goodbyes short. Indeed, they confirmed their advice in writing on a number of occasions. In this regard, I refer to the letters written to her by staff of the Centre on 13August, 26 August, 3 September and 8 September 2008.[19] It is perfectly clear to me that the staff would not have felt the need to write those letters if the mother had been acting on their advice to leave quickly and make her goodbyes short.
5. This difficulty was also alluded to in the oral evidence of the Family Consultant given on 17 July 2008, when she said:
   • I think the issue is that Mum doesn't want to hand over (the child).
6. It was the father's evidence that the main difficulty in relation to handovers was the fact that the mother "hates his guts". Some support for his view came from the mother herself when she was asked by the father’s counsel whether she could think of anything good about the father. Her response was:
   • No, not off the top of my head. I can't think of anything.
7. In view of the above, I have some significant reservations about the mother’s statement that she will encourage the child to go with her father. However, I must say that I am heartened by her willingness to equally share parental responsibility for the child. She has been represented by lawyers for some years, so she must have been advised that such an order will require her to consult and communicate with the father on a regular and continuing basis in relation to the child's welfare. I am also encouraged by the statement in the family report that despite the current parental conflict, the parties "appear to be able to communicate well with regard to issues relating to their daughter".
8. In my view, if she has not already done so, the mother needs to immediately heed the advice of the staff of the Contact Centre and detach quickly when she delivers the child to the Centre (or to any other location of handover).
9. Because it is in the interests of the child for the parties to move forward and put the difficulties of the past behind them, I have deliberately not made a finding about whether the mother's actions at handovers of the child were intentional or not. However, I can say that if I had come to a conclusion that her actions were intentional in order to pursue some agenda to exclude the father from the child's life, I would have had no hesitation in concluding that such behaviour was emotional child abuse on her part. That is because the evidence is clear that the child has become stressed at handovers and the only conclusion to be drawn would have been that the mother had deliberately caused stress to her child in order to pursue a personal agenda.
10. On the other hand, I have no concerns about the father's willingness to facilitate and encourage the child's relationship with her mother. In this regard, the father considers her to be a good mother and it is to his credit that (at least at this stage) he is not seeking orders that the child live predominantly with him, or even that she spend equal time with him. It is clear to me that he recognizes and appreciates the very important part that the mother plays in the child's life.
11. The mother needs to recognise and appreciate that the father also plays an important part in the child's life. I would remind her that the child has the right to know and be cared for by both parents and she also has the right to have contact and communicate with both parents on a regular basis.[20]

The practical difficulty and expense of the child spending time with and/or communicating with a parent

1. Although the parties live in different towns, those towns are not particularly far apart. Consequently, there is no significant expense involved in the child having regular contact with her father.
2. Any practical difficulty appears to arise solely from the difficulty that the child has had in detaching from her mother and I have referred to that sufficiently above.
3. I had considered making special orders that require the mother make her goodbyes short and to leave handovers quickly. However, that would pose some difficulty in both drafting and enforcement. Consequently, I am of the view that if the mother does not make her goodbyes short and leave handovers quickly after reading these Reasons, she is likely to become the respondent to contravention applications. In that eventuality, the issue for the Court to decide would probably be whether the mother intentionally failed to comply, or whether she made any reasonable effort to comply with the relevant order.[21] I am confident that the mother will be properly advised about this by her lawyer.

The capacity of the parents to provide for the child’s needs

1. In general, have no concerns about the parents' abilities to provide for the child's physical and intellectual needs, other than the concern expressed in the previous part of these reasons about the mother's inability to recognize the child's emotional need to be cared for by, and have contact with her father. However, I believe that I have said enough about that concern.

The attitudes of the parents to the child and parental responsibilities

1. In some respects there is some overlapping between this factor and the factor referred to immediately above.
2. The father and acknowledges that the mother is a good mother and, in general, I share that view.
3. The father is quite clearly a committed parent. This is evidenced by the number of times he was prepared to have contact with his daughter on the nature strip outside the mother's home. Further evidence is that he was prepared to see a reduction in his time with the child as a result of her attendance at early learning classes in preparation for her attendance at kindergarten this year. That clearly suggests that he is prepared to put his daughter's interests above his own.

Any family violence and family violence orders

1. I have referred to the issue of family violence above and do not need to refer to it further. I am not aware of the existence of any family violence orders.

Conclusions

1. The parties each want parental responsibility to be shared equally. In my view, that is appropriate and I note that the Family Consultant formed the view that they appear able to communicate well in relation to their daughter's welfare.
2. As mentioned above, if an order is to provide that the parents are to have equal shared parental responsibility, the court must consider whether spending equal time with each of the parents would be in the best interests of the child and would be reasonably practicable. In my view, an equal time order would not be in the best interests of the child in this matter, nor would it be reasonably practicable.
3. In general, it matters little whether the child's contact with her father is described as "living with" or "spending time with" him. It is the quality of that contact that matters, not the description. Consequently, because the child will be living predominantly with her mother, I am of the view that the orders should reflect that and state that she lives with her mother and spends time with her father.
4. The father sought an order to enable him to take the child to Queensland for ten days from 26 December 2008. Clearly, the delay in delivering these Reasons makes such an order otiose. However, I would not have made such an order even if it had been possible for me to deliver these Reasons prior to 26 December 2008. That is simply because it would not have been in the child's best interests to go to Queensland for ten days with her father when the clear evidence is that she has not ever spent more than two nights with him since the parties separated in 2006. I acknowledge that the father said that he would immediately returned to Tasmania if the child became stressed, but that would create significant difficulties because she could conceivably remain stressed for very many hours. Further, I find that the father's plan to take the child to Queensland with people she hardly knows was misconceived.
5. The mother's suggestion that during school terms the child should only spend two days each second weekend (from Friday evening to Sunday evening) with her father is inconsistent with the interim orders to which she consented in 2006. Those orders provided for the child to have contact with her father for three days each second weekend (9.00 a.m. Friday to 6.00 p.m. Sunday) and for three and a half hours on each of four other evenings during each fortnight.
6. In my view, it is appropriate for the child to spend time with her father from after-school on Thursday until Sunday evening once per fortnight and also to spend one night with him in the other week of the fortnight. Because the child will be attending kindergarten on Thursdays, it is appropriate for the father to collect her from kindergarten on that other Thursday and return her to her mother the following morning at
   9.00 a.m. This pattern could then continue in 2010 after the child attends school full-time.
7. Collection from school will also assist the child (and the mother) in relation to handovers. However, where a handover is not to take place at the school, it should take place at the Launceston Children's Contact Centre, if that is possible. It is not possible, then the car park at [omitted] seems to be an appropriate public place for handover. That is not immediately outside the mother's home but it is in close proximity.
8. In general, during 2009 the father will collect the child from kindergarten on Thursday afternoons and return her to the Launceston Children's Contact Centre on Sundays and to the car park at [omitted] on Friday mornings. As I have no evidence of any difficulty in the child separating from her father to return to her mother, I conclude that the Friday morning experience will assist the child in relation to future handovers when the Contact Centre is not available.
9. I seriously considered making an order to prevent the mother from attending at the child's kindergarten on Thursday afternoons, in order to prevent the difficulties that have occurred at the Contact Centre. I have decided not to make such an order, but the mother would be well advised to steer well clear of the kindergarten on Thursday afternoons, unless she has a particularly good reason for being there which is not simply that she wishes to say goodbye to the child. It is her goodbyes that have caused the child significant stress.
10. In my view, the child will be old enough and sufficiently confident in her relationship with her father to be able to spend half the school holidays with him on a week and week about basis from 2010 onwards and it is to the father's credit that he is not seeking any extensive holiday contact prior to 2010.
11. Both parties require orders in relation to special occasions although they do not agree about specific starting and finishing times. I will make orders that provide for appropriate hours.
12. The orders will provide that the child spends “substantial and significant time” with her father within the meaning of that term as defined in the Act.
13. The father also seeks an order that if either parent is unable to provide personal care for the child for a substantial period, then that parent must provide first option of care for the child to the other parent for that period. Clearly, it is important to define what "a substantial period" is. In my view, such an order would only be practical if the relevant period was longer than 48 hours. However, one must bear in mind that it is not always easy to know for how long one will not be able to provide personal care. Consequently, even though I will make such an order, it may never be put into effect.
14. Given what I have said above about the inappropriateness of the father's plan to take the child to Queensland, I will make an order that prevents the parties from taking her interstate this year without a specific court order or the written consent of the other party. However, given what I have also said about the parties’ ability to communicate, I am confident that they will be able to agree upon any interstate travel that would be in the child's best interests.
15. I will make an order (that appears to be by consent) that the parties be restrained from allowing the child to be in the presence of any person who is smoking in a confined space.
16. The mother seeks an order that the parties be restrained from denigrating the other in the presence of the child. In my opinion, there is insufficient evidence to justify such an order.
17. As stated above, the parties agreed to an order on 17 July 2008 that they attend the PIC programme at the first available opportunity.
    I gained the impression from their evidence that the father had gone further in that process than the mother. As I will not be discharging that order, I expect both parties to complete that programme (or a suitable equivalent) as soon as possible.
18. The orders that I make are set out at the start of these Reasons.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Roberts FM

Associate:

Date: