Inappropriate parenting orders sought by each party

Inappropriate parenting orders sought by each party

Judge Altobelli recently dealt with a case where the Applicant (who did not presently have care of the child) sought orders that were too advanced for a 2 year old breast-feed child, where also the Respondent (who did presently have care ofr the child) sought orders that were not advanced enough:

Rattray & Santino [2018] FCCA 2904 (4 October 2018)

  1. Section 60CC(3)(d), which deals with the likely effect of changes on the child, is an important consideration in this case. The Applicant Mother’s proposal is, with respect to her and those who have advised her, ill-considered, and manifested a significant lack of insight on her part. The Applicant Mother proposes moving from a situation of never having had an overnight to 4 nights each fortnight, including a 3 night block. It means for [X], who has never spent an overnight away from the Respondent Mother, suddenly being away for 3 nights in a row. It ignores the breastfeeding. It is, with great respect, an absurd proposal. The Applicant Mother should have abandoned this idea long before it got to the Interim Hearing. It was a proposal totally insensitive to [X]’s needs for stability and continuity with the person who is, for the time being, her primary carer.
  2. But the Respondent Mother’s proposal is equally problematic, and denying the possibility of a change for at least 18 months. The uncontested facts have already been noted. But just because [X] has never spent a night away from the Respondent Mother, that does not mean she never will, and it does not mean she will not cope with that change. Just because [X] is breastfed, it does not mean she will always be breastfed, and it does not mean she will not cope with weaning in the fullness of time. Just because [X] has a routine in her Respondent Mother’s home, it does not mean that she cannot have a similar routine in the Applicant Mother’s home.
  3. Just like [X]’s routine will develop as she grows older, so too her routine will tolerate changes if circumstances mandate. The real challenge is how such changes might be facilitated.
  4. The Respondent Mother gives evidence of the unsettling that [X] experiences following extended visits. This evidence cannot be challenged at an Interim Hearing, but it is interesting to note the very appropriate fashion in which Ms Fordham, the Respondent Mother’s solicitor, framed her written submission about this:
    Thus, there is some evidence that the child may have a negative reaction to spending significant periods of time, including overnight time, away from the Respondent.

Some evidence”, “may have a negative reaction”. Whilst the Respondent Mother, understandably perhaps, associates these behaviours to [X]’s time with the Applicant Mother, the fact is, we do not know. We do not know, for example, if there are other explanations for this behaviour. Is [X], like so many other children, so attuned to her mother’s feelings that she detects the mother’s apprehension about time with the other mother? The conflict between these parents is palpable.

  1. Whilst the Applicant Mother’s proposal is simply out of the question, as being too much change too quickly, the Respondent Mother’s case does not explain why there should be absolutely no change at all.
  2. Section 60CC(3)(e) deals with issues of practical difficulty and expense. The submissions made by each parent are duly noted. In many respects, these mothers have managed the issues of distance reasonably well. Change seems inevitable, as the Applicant Mother’s base, if I can call it that, in Sydney may well need to change. But there is nothing insurmountable here.
  3. The Court is required to consider section 60CC(3)(f), issues of parental capacity; and then, (3)(i), issues of parental attitudes. As is not unusual in the Court’s experience, in cases of moderate to high conflict, there is potentially much that can be said about both parents, having regard to these considerations.
  4. It is best to be minimalist for the time being. Their diametrically opposite proposals about [X]’s time with the Applicant might suggest a lack of child focus, and might suggest a focus on their own needs instead. These are new parents. There may be insecurities and uncertainties at play, interacting with mutual suspicion about each other’s motives. None of this is helpful. The focus must be on [X]’s needs, and not on that of her mothers. The policy of the Family Law Act in this regard is quite clear.
  5. The Court must consider substantial and significant time. It is satisfied that this is reasonably practicable. But the Applicant Mother’s proposal is plainly not in the best interests of [X]. Indeed, the Court has reservations as to whether it is even possible to obtain substantial and significant time, as defined, with [X] given her age and developmental stage. Having regard to that, what should the orders be that are in [X]’s best interests?
  6. The Final Hearing is in August next year; a Report will be available before then. When all the evidence before the Court and the submissions made are considered, the Court believes that it is in [X]’s best interests to introduce limited overnight time with the Applicant Mother, but over a period of time. The focus turns to the details of the appropriate order.
  7. So the order will look like this;
  8. Firstly, I am going to make an order for equal shared parental responsibility. My reasons for that have been given.
  9. I am going to order that [X] lives with the Respondent Mother. That appears not to be in contention. There will then be two stages. Each stage will be subject to any other agreement that the parents reach.
  10. Stage 1 will be from now through to the end of March 2019. [X] is to spend time with the Applicant Mother:
    1. each Tuesday, from 9:00am to 4:00pm;
    2. each Friday, from 9:00am to 4:00pm; and
    1. each alternate Saturday, from 9:00am to 6:00pm.
  11. Stage 2 will commence from 1 April 2019, pending further order. And, again, I emphasise that this is unless the parents otherwise agree. [X] will spend time with the applicant mother:
    1. each Tuesday, from 9:00am to 4:00pm; and
    2. each alternate Friday, from 9:00am to 4:00pm; and then
    1. each other alternate Friday, from 9:00am to Saturday 4:00pm.
  12. The Court notes the evidence from the Applicant Mother about her flexible work arrangements, meaning that this proposal would be something that she can accommodate. The Court observes that these Orders regularise [X]’s time with the Applicant Mother, but in a manner that is not too inconsistent with the existing regime. Overnight time is introduced each alternate weekend, in 6 months’ time.
  13. This gives the Respondent Mother plenty of time to wean [X] off the breast, if that is what she desires, or to make alternate arrangements. In this regard, I note the Respondent Mother’s own evidence, which refers to the cessation of breastfeeding when [X] turns 2.
  14. There will be no condition, as the Respondent Mother prescribed, as to where the Applicant Mother is to spend time with [X]. She is to use her common-sense and to act in a child-focused manner, remembering at all times, as the Respondent Mother should likewise remember, that the forensic scrutiny of litigation is a burden that they will carry until the Final Hearing or settlement.
  15. There will be no requirement, as the Respondent Mother sought to prescribe, that the Applicant Mother feed and bathe [X]. There is no need to tell the Applicant Mother to do that which should be plainly obvious to her.
  16. The orders proposed by the Respondent Mother in her case outline, at (5), (6), (7), and (9), are appropriate and child-focused, and will be made.
  17. The Court is concerned about the level of conflict between these parents, and will, of its own motion, make Orders that:
    1. The parents:
      1. do not discuss these proceedings with or in the presence of [X], or allow anybody else to do so; and
      2. will not denigrate each other in the presence of [X], or allow anybody else to do so.

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