FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI	[2009] FamCA 1309	

FAMILY LAW – CHILDREN – with whom a child lives – watch list 
FAMILY LAW – PROPERTY – sale of property	

Family Law Act1975 (Cth)	

APPLICANT:	Ms Baghti	

RESPONDENT:	Mr Baghti	

Independent children’s lawyer:	Ms A. Connor	

FILE NUMBER:	SYC	2145	of	2009	

DATE DELIVERED:	11 November 2009	

PLACE DELIVERED:	Sydney	

PLACE HEARD:	Sydney	

JUDGMENT OF:	Loughnan JR	

HEARING DATE:	11 November 2009	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr G. Gould	

SOLICITOR FOR THE APPLICANT:	Pigott Stinson Ratner Thom	

COUNSEL FOR THE RESPONDENT:	Mr P. Friedlander	

RESPONDENT:	Mr Baghti	

SOLICITOR FOR the INDEPENdent children’s lawyer	Legal Aid NSW Sydney	

Orders
(1)	Orders are made in terms of the document titled “Interim Orders Pending Further Interim Hearing” marked Exhibit 1.  In the first instance the program referred to in paragraph 1.1(a) of that exhibit is to commence at the conclusion of school on Thursday, 12 November 2009 with the mother.
(2)	By consent orders are made in terms of the document titled “Short Minute of Order” marked Exhibit 2.
(3)	The Court requested that these proceedings be including in the Child Responsive Program and that a Chid and Parent Issues Assessment issue as a result of that program.
(4)	The proceedings are adjourned to the Judicial Registrar’s Duty List at 10:00 am on 22 December 2009.

IN CHAMBERS
6.	That as soon as practicable the parties attend together upon N’s treating paediatrician Dr F for joint instruction in relation to the management of N’s medical conditions, including how any emergencies should be dealt with and that thereafter at all times they follow the letter of Dr F’s recommendations including but not limited to, undertaking any further course.

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

Family Court of Australia at SYDNEY	

FILE NUMBER:   SYC 2145 of 2009

MS BAGHTI	
Applicant

And

MR BAGHTI	
Respondent

REASONS FOR JUDGMENT
1.	These are proceedings in relation to a child, N, in May 2003 he was born, so he is 6 years of age.  His mother and father, are 33 and 41 years of age respectively.  They were married in 2002 and the father says they separated in December of 2008.  The mother might have a different view.  She has been operating a business called D Business, which is a shop business. She has been working there seven days a week but part-time.  The father, most recently provided his services as a Security Guard through an enterprise called O Business Pty Limited.  He has professional qualifications and was a public servant.
2.	N is in Kindergarten at V Public School at H. He suffers from asthma and seizures, described as absences, and has experienced febrile convulsions. The father says that he was first diagnosed to have those absences at about two years of age.  He is prescribed a medication in relation to the absences. To the father’s knowledge, that medication has only been administered on one occasion and that was by an ambulance officer. N takes reliever medication for asthma and he has taken doses of Panadol. 
3.	The parties are living under one roof. 
4.	The matter came before me on 6 October 2009 and the parties asked that I put in place some orders and that the matter be adjourned. A lawyer was appointed for the child.  The parties were to attend counselling. Neither of them was permitted to change the place of residence of the child from their property at H and they were to make sure that the child slept every night in that place.  They were not to cause appointments with a medical practitioner without consulting each other and giving notice, and there were some orders about behaviour in terms of clothing and possessions of the child and who would attend at the home.
5.	The matter is back before me today. The father would like the mother to leave the home and have some time with the child on a restricted basis.
6.	The mother would propose a nesting arrangement, week about with each parent, with the parents coming and going and the child staying in the house. She gives some evidence about alternate accommodation being available. The father’s parents live very close by and there is some arrangement the mother can make. That would have the boy in the home and the parents coming and going. A similar arrangement is sought on behalf of the child, although broken into smaller bites rather than week about.
7.	Mrs Connor appeared for the child this morning and was excused. She said that she was not ready to make submissions in relation to the matter into the indefinite future, because she has not spoken to the child. She was concerned about the number of interviews he will be put to and noted that the parties have reported that the child is under a considerable strain. They each ascribe the source of that strain to the other parent but both report him being under some pressure. Mrs Connor is worried about that. She wants to issue some subpoenas to the police and doctors and so on. She will do that and she wants to look at that material before she makes her submissions.
8.	The order made in relation to counselling has not yet been effective. It is in that context that Mrs Connor recommended this arrangement and I think somebody else might have referred to it as an interim interim arrangement. 
9.	Such a proposal is not something that is likely to be put in place for the longer term. Like most shared parenting arrangements, a nesting arrangement calls for a level of co-operation between the parents. The parties have demonstrated through their affidavits that they enjoy a poor relationship, they are not communicating well, they have very much taken up positions, one against the other and the sort of co-operation that one might need into the medium term isn’t likely to be there.
10.	I am to make orders in the best interests of a child. One identifies that by reference to matters set out in the legislation. One starts with a sequence of decisions, firstly, looking at whether there will be equal shared parental responsibility.  The case has come on in such circumstances that the father has yet to put to paper what he wants by way of final orders.  I don’t quite know how that happened, but it has happened. I don’t know at this stage that there is going to be an agreement for equal shared parental responsibility or whether that would be a proper outcome. Certainly at the moment the parties are nowhere near co-operative parenting. One can foresee a situation where the child is likely to be embarrassed if there was equal shared parental responsibility. On the worst case that could be dangerous for him. I cannot say that that is going to be the outcome.
11.	In any event I am to make orders in the best interests of a child by reference to the legislation. The problem, of course, in a case at this stage is it is very difficult to make any findings about what is true and what is not true. Even though there isn’t a decision about parental responsibility the legislation points to the court considering with a view to ordering equal time and if it doesn’t do that, considering with a view to ordering substantial and significant time.  That is a term that is defined and suffice it to say the only proposals for substantial and significant time in the mother’s care would be those made on her behalf and those made on behalf of the child.
12.	Substantial and significant time involves time whereby the child and the parent share significant aspects of each other’s lives, involves the school week and weekends. The primary considerations are the benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Again, the father’s proposal doesn’t involve the mother having time that would foster a meaningful relationship with the child. That isn’t the end of the inquiry, because if it could be dangerous to a child to have sufficient time for a meaningful relationship with a parent, then of course the court would be careful about putting that in place. 
13.	As to the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence:  both parents say that they have been unable to protect the child from their relationship.  They describe events, where in his presence, they have said awful things to each other.  The father was put, for reasons that aren’t quite apparent to me, to recording the mother on the telephone. There is a level of distrust and conflict, which is no doubt having an impact on the child.  It is an agreed fact in this case that the child is being affected by what is happening. Presumably that is why it is agreed that something has to change.
14.	The real issue in the case is going to be the mother’s capacity and I will come to that. The additional considerations start with any views expressed by the child. He is too young to express a meaningful view about what should happen. The issues in this case are to do with his physical health and danger and the impact of the parties’ conflict on him. His view about those things is not relevant.
15.	The nature of the relationship of the child with each of the parents:  in the long run I think I could assume that the relationships are good enough. Although he has yet to file anything, I am told by the father’s counsel that the father wants the child to be with the mother overnight on alternate weeks and a night during the week and that the father’s concerns relate to adherence to medical requirements, adherence to safety requirements in terms of transport, the mother actually attending, the mother taking seriously the issues about the child’s health and so on. It is not part of the father’s case that the mother needs to build a relationship with the child.
16.	In those circumstances we could say that the relationships are probably good enough.  As to the child’s relationship with other persons, I think the only other persons referred to in the documents are members of the father’s family. The father describes a loving relationship between the child and members of his family. He says that the child has, on many occasions, had meals with his parents. He mentions his sisters in terms of time with the child and providing assistance for the child.  
17.	The willingness of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent:  that is very much in issue here. There is a particular concern in relation to the father, because he is the one who wants real restrictions imposed on the time between the mother and the child. That is not the case with the mother’s proposal.
18.	The likely effect on the child of changes:  here we have separation from the mother for significant periods, as one possibility, separation on the mother’s case, from the father for a week at the time, on the proposal made by the ICL  for a few days at a time.  
19.	The practical difficulties and expense of the child spending time or communicating with a parent:  happily, there seems to be really an enclave based at H and not so much a problem in terms of distance or practical issues.  
20.	The capacity of the parents is likely to be the main issue. The parties agree that the child is not doing well now. Therefore his parenting has not been adequate. As to who is responsible for that, whether it is one parent or just the awfulness of their relationship, we don’t know that yet and it will take the application of some expertise to try to get to the bottom of that. Frankly we mightn’t get to the bottom of that even after the consultant speaks to the parties.  
21.	It is not unusual for parents to drop their bundle in terms of parenting at the time of separation. The real trick is ameliorating that, insulating a child from that and giving the parents time to get into their new roles as separated parents.  
22.	The maturity, sex, lifestyle background of the child:  he is young and probably because of his medical condition, not up with his cohort in terms of maturity and resilience. There seems to be a bit of conflict in the documents.  The father highlights concerns about the child being fatigued and yet he has a pretty hectic program.  The father says the mother has him standing for 45 minutes at a time doing homework. How a kindergarten child would have 45 minutes worth of homework, I am not quite sure. That might just have been an aberration. In the last school holidays he had individual lessons for up to an hour and a half in karate, and swimming lessons day on day. So on the one hand there is an issue about fatigue and on the other hand he was kept pretty active.
23.	The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents:  Well, I guess the best of that is the child is physically safe and well.  The father says he is the primary care giver of the child on the basis, I think, that the decision made in the family was for recent times for him to be out of paid employment and the mother to be engaged in work on a seven day basis for part of the day. On the other hand he says, for example, the child is substantially overweight. That suggests that his involvement in the feeding of the child might not be as influential as that of the mother.  I don’t know, really, what that is about.
24.	Any family violence involving the child or a member of the child’s family:  If not physical violence, the parties deal with each other in inappropriate language in the presence of the child. They are candid about that in their affidavits. The boy has to deal with that. I understood one of the things that has particularly motivated Mrs Connor to make the proposal she has, in circumstances where she is not in a position to make a recommendation into the medium term, is that something has to change and, perhaps, if the parents aren’t in the same room there is less risk of the child being damaged by their interaction.
25.	They are the relevant matters.
26.	In Goode and Goode the Full Court said you start with the agreed facts. In an interim hearing conducted on the papers, I am not permitted to make findings about disputed issue of fact without independent evidence that excludes one version of events or wholly supports the other. It is an agreed fact that the child is in harm’s way. None of the parties wants the parents to continue to live under the one roof together. As to the other matters, there is not much agreement.  Then one does the best one can on the basis of the material. It is not necessary to make a finding of fact about something to make orders. The court is obliged to make an order.
27.	Therefore I am obliged to make an order and everybody agrees that something has to change.  As to the competing arguments: On behalf of the father, notwithstanding what he says about the influence of the mother on the child, it is submitted that he has been the primary care giver of the child. It is submitted that the mother doesn’t take seriously and is careless and neglectful in relation to all of the safety issues about the child, his medical care and other matters. Thus the submission is that the child should be with the father for the preponderance of time.
28.	The mother’s case is that the division of labour between the parties does not necessarily reflect the attachment of a child. She points to things the father has done which suggest that he is focused more on getting what he wants rather than an unambiguous focus on the child’s welfare. In that regard the father refused to provide the child’s medication to the mother notwithstanding that the child was to be in the mother’s care. Ms Connor, this morning, said that her proposal wasn’t the best arrangement, but it addressed the issue of the tension in the household which the child is experiencing.
29.	In terms of the risk for the child, we know that it is possible for the child to be away from the father. For example the child attends school. In the circumstances of this case the father is always likely to be close by. I understand that his parents live across the road from the home. He has an arrangement with the school whereby he is on call and that is not too far away, and so he can get there quickly. Is not as though this is a proposal whereby the child will be far away from the father.
30.	The legislation puts a bit of a priority on equal arrangements.  There is a lot of debate in the community about whether that influences decisions to the disadvantage of children. As things stand the legislation requires that all other things being equal, the courts would look to, and parties would look to, a proper arrangement for time. Here something has to change.  The child has lived all his life with the parents under one roof.  I asked about how many nights he would have been away from the father, for example, and I was told something like three.
31.	We know in the medium term that the father thinks that, presumably, once the mother takes up responsibility for getting across the medication and so on, the child will be safe for days at a time, nights at a time with the mother and in those circumstances it seems to me that the proposals of the independent child lawyer are appropriate.  They have their risks and I mentioned this in the course of submissions.
32.	My experience with nesting arrangements is that they eventually end up badly. While parents they might be able to focus on a child, for most of the time, there is a risk that they will behave badly in relation to each other. There is a risk of that here. However, this is not an indefinite arrangement. This is an order made until the parties have counselling and the ICL appointment is effective. Evidence will be provided on subpoena and advice can be obtained from N’s treating doctors. Hopefully then we will be able to craft something more sophisticated.

ORDERS DELIVERED
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan 

Associate:  

Date:  11 December 2009