Mother Proposes Change of Parenting Orders
Leonard & Najdi [2021] FedCFamC2F 23 (8 September 2021)
The parties are in dispute over the parenting arrangements over their child. The father alleges mental health issues against the mother. On the other hand, the mother alleges that the father affected their child's behavior negatively when he withheld the child from her. The Court, in making orders, was guided by the best interests of the child.
Facts:
The Mother has a child from a prior relationship, D, aged 10 years. The Father is in a new relationship with Ms E. Ms E has two children from a previous relationship; F, 9, and G, 5. The Mother is married to Mr H, who is aged 31 years. The Mother obtained an Islamic divorce in July 2015 when the child was about five months old.
The Mother alleges that the parties remarried Islamically in 2017, and then lived together until they got a Islamic divorce in February 2018. During the period that the parties were Islamically divorced or had been separated, the child lived with her. She alleges the child spent time with the Father every weekend, usually on a Saturday and/or Sunday. The Mother alleges there was a meeting in January 2020 with an Islamic cleric who advised to allow the Father to spend more time with the child, such advice she reluctantly agreed to.
The arrangement every week from February 2020 to about January 2021 was for the Father to pick up the child on a Monday afternoon and spend time with him until Thursday morning, and in addition the Father would spend time with the child every second weekend on a Saturday morning until Sunday evening. It was alleged that the child and D get along quite well.
The Mother alleges that at around the beginning of 2020, the child became noticeably more rebellious and naughty. In January 2021, the Mother and her partner moved from Suburb J to Suburb K. The Mother alleges that the Father failed to return the child to her on 10 January 2021 and herself and her partner then contacted police. She alleges that the Father returned the child to her on 19 February 2021 in accordance with Orders of 16 February 2021.
Furthermore, since the child was allegedly withheld by the Father on 10 January 2021, the child has recently become substantially more attached to her and does not like being left alone when at home. The Mother alleges that she has also noticed the child develop separation issues and become distressed when she dropped him off at school.
On 16 February 2021, the parties agreed to Interim Parenting Orders which provided, inter alia, for the child to spend time with the Mother, in a two-week cycle, effectively five nights each fortnight during school term times. At this Interim Hearing, the parties agreed to certain interim related parenting Orders. However, they did not agree to the time that the child should spend with the Mother during school term times. The Mother sought interim Orders, as supported by the Independent Children's Lawyer, that the child spend time with her in week one from 3 PM on Wednesday after school to 9 AM Monday morning, and in week two, from 3 PM Wednesday after school to 9 AM Friday morning; in effect she sought an equal time shared care arrangement at least during school term times.
The Father sought the continuance of the Court’s interim consent parenting Orders of 16 February 2021 providing, inter alia, that the child spend time with the Mother, in the aggregate, five nights each fortnight during school term times.
Issue:
Whether or not the proposed orders by the Mother are in the best interests of the children.
Applicable law:
Family Law Act 1975 (Cth) s 62G(2) - provides that the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
Family Law Act 1975 (Cth) s 60B - sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.
Family Law Act 1975 (Cth) s 60CA - provides that in deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Family Law Act 1975 (Cth) s 60CC - provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Family Law Act 1975 (Cth) s 61DA - provides that when making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Family Law Act 1975 (Cth) ss 65D, 65DAA - the Court must consider making an Order that the child spends substantial and significant time, as defined herein, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
Banks & Banks[2015] FamCAFC 36 - the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.
Eaby & Speelman[2015] FamCAFC 104 - where apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims, such an approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 - established the relevant principles in relation to parenting proceedings, including interim proceedings.
Analysis:
The copy text message between the Mother and the child’s school teacher of 11 March 2021 refers to the child's separation issues, with the teacher allegedly stating that it takes the child longer to settle down in class after he has been dropped off by the Mother. The Mother alleges certain concerns she has regarding the child’s behaviour “as a result of the increased time X spends with (the Father).” The Mother alleges that the child also expresses similar forms of emotional attachment to her at handover times when the child knows he will be leaving the Mother and spending several days with the Father. On the other hand, the father alleges that in 2014, the Mother threatened to hurt herself and the child D if the Father left her.
The Father alleges that the child has a wonderful relationship with his wife and the Father’s stepchildren. In the Child Dispute Conference Memorandum dated 9 March 2021, the Family Consultant states that each of the parents alleged that there had been verbal conflict between the Father and the Mother’s new partner, Mr H. Each parent described communication as being a key difficulty in their relationship prior to and following separation. The Father alleged to the Family Consultant that Mr H had become aggressive and had threatened the Father about the time that the Father was served with the Mother’s Court Application.
The child has a meaningful relationship with both parents and will benefit from a continuance of those relationships. Should the child continue to spend time with the Mother, during school term times, in the aggregate five nights each fortnight, pursuant to the Court’s Interim Parenting Orders of 16 February 2021, there is a significant prospect that the child’s meaningful relationship with the Mother can be maintained.
Conclusion:
The Mother’s proposed Orders 1, 2, 3(a) and 3(b) set out in her Proposed Minute of Order attached to her Case Outline filed 15 August 2021 is dismissed. The child X born 2015 shall live with the Father and spend time with the Mother. The parties shall communicate about issues concerning X only through the parenting application, Our Family Wizard App and each of the parties shall pay their own costs of maintaining their respective accounts, unless in case of an emergency. Each parent shall notify the other of any medical emergency or hospitalisation of the children as soon as is reasonably practicable and these Orders shall constitute authority for either parent to make enquiries with the children’s treating health practitioners as to their general progress and wellbeing. Each parent is restrained from denigrating the other parent or any member of their extended family in the presence or hearing of the child and shall not allow any other person to do so.