Brayton and Brayton (No. 2)

[2017] FamCA 1128

FAMILY COURT OF AUSTRALIA

BRAYTON & BRAYTON (NO. 2) [2017] FamCA 1128

FAMILY LAW – CHILDREN – Interim parenting – Best interests of the children – Where children presently separated – Where the children have been drawn into the parental conflict – Where the parties agree to an order for equal shared parental responsibility – Where it is in the best interests of the children to be reunited – Where the wife is the children’s primary carer – Order that the children live with the wife and spend time with the husband.

Family Law Act 1975 (Cth) ss 65DA(2), 62B

APPLICANT: Ms Brayton

RESPONDENT: Mr Brayton

INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

FILE NUMBER: SYC 5516 of 2017

DATE DELIVERED: 19 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 18 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

ORDERS BY CONSENT:

1. That Dr M be appointed as a further court expert to prepare a report for the court in relation to the welfare of B and C.

2. Liberty to apply in respect in the terms of the brief if the parties are in disagreement.

3. That notwithstanding any other order:-

   (a)The children shall spend time with the husband from 1:00 pm on Christmas B until 1:00 pm on Christmas Day; and

   (b)The children shall spend time with the wife from 1:00 pm on Christmas Day until 1:00 pm on Boxing Day.

4. That the husband shall make the children and each of them available for collection by the wife or her nominee at 1:00 pm on 25 December 2017 at 20 K Street, Suburb N.

IT IS NOTED:

1. It is noted that appointments with Dr M have been scheduled for 15 January 2018.

2. It is further noted that Dr M’s fees shall be paid, at first instance, by the father.

ORDERS:

1. That the orders made on 13 November 2017 be discharged.

IT IS FURTHER ORDERED PENDING FURTHER ORDER:

1. That the husband and the wife shall have equal shared parental responsibility for making all decisions in relation to major long term issues concerning the children B (“B”) born on … 2005 and C (“C”) born on … 2008 (“the children”).

2. That the children live with the wife.

3. That the husband shall return the child C to the wife by 9:00 am 20 December 2017.

4. That the children spend time with the husband as follows:-

   (a)From 4.30 pm until 7.30 pm on Friday 22 December 2017,

   (b)On Christmas B and Christmas Day as agreed by the parties above,

   (c)Commencing 29 December 2017 each weekend from 4:30 pm Friday until 4:30 pm on Sunday,

   (d)With the commencement of school term in 2018, weekend time shall become each alternate weekend commencing at 4:30 pm Friday until before school Monday morning (or 6:00 pm Sunday evening in the event the husband has work commitments that mean he is unable to take the children to school on Monday morning),

   (e)Every Wednesday between 4:30 pm and 7:30 pm commencing 3 January 2018,

   (f)At such other times as agreed between the parties.

5. Unless otherwise agreed between the parties, handover of the children shall be implemented by:-

   (a)The wife delivering the children to the husband’s home at the commencement of the time the children are to spend time with him, and

   (b)The husband returning the children to the wife’s home at the conclusion of the time that the children have spent with him (or to school, whichever applies).

6. The parties shall notify each other in the case of any emergency involving any of the children as soon as practicable.

7. The parties shall notify each other of any change of address or telephone number within seven days of such change.

8. That the parties are to do all acts and things necessary to facilitate any telephone contact between the children and the other parent.

9. The parties are hereby restrained from denigrating the other parent in the presence or within hearing of any of the children and such restraint extends to any partner of the other party (or future partner) or any family member or friend, including but not limited to, Ms G.

10. The parties are hereby restrained from recording conversations with the children to be used in these proceedings in any fashion or permitting any other person to do so.

11. Each parent is to use their best endeavours to ensure the children are not spoken to by any person other than a court appointed expert and the appointed Independent Children’s Lawyer about any aspect of the litigation between the parents or any of the matters referred to in Order 8 of the orders of 24 October 2017.

12. The Court notes the undertaking of the wife that she will take all medication prescribed for her in relation to the management of her mental health.

13. That the wife files within 7 days a written undertaking to give effect to the undertaking noted in paragraph 19 above.

14. The Court notes that the parties and Independent Children’s Lawyer have made arrangements so that C will be returned to the wife at the office of the Independent Children’s Lawyer at 9:00 am on 20 December 2017.

15. In the event C is not returned to the wife in accordance with Order 10 above the parties have liberty to apply for a recovery order, in the first instance by approaching the Associate to Ryan J and if she is not available, as directed by the case management judge.

16. That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

17. All outstanding applications for interim parenting orders and injunctions in relation to the children are dismissed.

18. That the costs of the Independent Children’s Lawyer be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brayton & Brayton (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5516 of 2017

Ms Brayton

Applicant

And

Mr Brayton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Brayton (“the wife”) and Mr Brayton (“the husband”) have two children, B (“B”), born in 2005, and C (“C”), born in 2008 (“the children”).  The parties separated some months ago and, presently, B resides with the wife and does not spend time with the husband.  C resides with the husband and has little time with the wife.  Given that there seems to be no dispute that when the parties separated, the children enjoyed warm and affectionate relationships with each of their parents and one another, the current arrangements bespeak children and parents who are distressed and struggling to adapt to the breakdown of the parties’ marriage. 

2. One thing upon which the parties are agreed is that the current arrangements are antithetical to the best interests of the children and a different arrangement needs to be put in place.  Unfortunately, they are unable to agree about the changes that are required and, thus, the court must determine the competing interim applications. 

3. It is uncontroversial that during the marriage, the husband worked full-time as the chief executive officer of a financially successful enterprise and the wife cared for the children full-time.  Dr V  is a registered psychologist and was appointed as the court’s expert to investigate and report on aspects of the parenting disagreement.  The husband told Dr V that the wife was a “really good mum” (paragraph 72).  His opinion accords with the evidence.  Although there is some disagreement about the full extent of the husband’s involvement in the children’s care prior to separation, the evidence adduced by both parties is to the effect that he was involved and, in one fashion or another, supplemented the primary care provided by the wife.  Irrespective of the amount of care the husband was engaged in for the children, there is no doubt that he was an important part of their day to day lives. 

4. It would seem that the husband and, indeed, the children, were surprised by the wife’s decision to end the marriage.  In the period immediately after the wife left the family home with the children on 22 July 2017, the husband sought to broker an agreement with her concerning the children’s living arrangements, at least in the short term.  As a starting point, an agreement was reached to the effect that the children would live with the wife and spend time with the husband three nights each fortnight.  Notwithstanding that this arrangement was proposed by the wife, within 24 hours of its acceptance by the husband, she withdrew from it. 

5. According to the wife, she withdrew from the agreement because when she told the children about it, they said they did not want to see their father.  Indeed, it is her evidence that, as she discussed the arrangements with the children to see the husband, the children became hysterical.  Thus, although the husband wanted the children to spend time with him overnight, in the face of their and the wife’s opposition to it, the children began spending time with him on Friday evenings and Saturday or Sunday afternoons each week.

6. It is the wife’s evidence that she was due to travel to Melbourne with the children for the weekend commencing 22 September 2017.  However, C did not want to travel on a plane or stay in a hotel and, thus, by arrangement with the husband, it was agreed that C would spend the weekend with him.  While with the husband, C requested that the wife agree to him staying an extra night, which she did.  Further requests were made and accepted by the wife until she said it was time that C returns to her and B.  C refused and, with the husband’s agreement, he has been with him ever since.  Since then C has spent limited time with the wife and it would seem, no time with her without the husband also in attendance. 

7. So that it is clear, from separation until 22 September 2017, the children lived with the wife at a property she rented at Suburb X and spent short periods of time with the husband.  The situation now is that C resides with the husband in the family home at Suburb N and B resides with the wife in her home at Suburb X.

8. As to the current situation and its impact on the children, Dr V summarised the position thus:

   135. [B] and [C] are clearly caught up in the middle of a battle between their parents that appears to be escalating and to which the children seem to be not only exposed, but increasingly involved in, to the detriment of their emotional and psychological wellbeing and also their relationships. Both children, but particularly [C], are reported as experiencing/demonstrating a number of behaviours and emotions that have been identified as typical distress responses in children reacting to parental separation and conflict. For example: school refusal, risk taking behaviour e.g. running away, recurrent somatic complaints e.g. stomach aches, headaches etc., withdrawn behaviour, taking responsibility for parents’ concerns, challenging behaviour and anger. If such exposure and involvement continues it will have a negative effect on both children and effect their adjustment to the parents’ separation and of learning to alternate between households. It may also increase the risk to [C] and to [B] of their having problems with their mental health (such as depression or anxiety), poor academic achievement and difficulties establishing and sustaining interpersonal relationships in the future.

   136. It is also concerning that the conflict and lack of cooperation between the parents seems to have resulted in them each having allowed the children to take authority with regard to decisions that are ultimately adults decisions e.g. where they live and whether or not they see a parent. Each parent’s efforts to position the children as decision-makers within this dispute has only served to place inordinate pressure on [C] and [B], which neither parent appears to fully realise causes the children, in particular [C], significant psychological distress and anxiety.     

   (Report of Dr V dated 5 December 2017, p 35)

9. These observations accord with my own analysis of the evidence.  Indeed, the evidence contained in the report of Dr V is most useful.  It provides a helpful overview of the family’s situation and expert opinion about the living arrangements which are likely to promote the children’s physical, emotional and psychological needs pending a final hearing.  It corroborates evidence adduced by the husband as to C’s views and that adduced by the wife in relation to B’s views. 

10. C’s views are best summarised at paragraphs 100 to 105 inclusive of the report as follows:

    100. [C] said that in the past couple of months he has “figured out” that “Dad is very very nice”. [C] described his father as being “kinder” [than Mum is] and as someone who is also very “thoughtful”. He said that his father gives him choices and does not force him to do anything he (i.e. [C]) does not want to do. This includes whether or not he spends time with his mother as per the current Court Orders. [C] expressed a belief that he only has to go with his mother, if he feels “safe” enough to do so and/or wants to.

    101.[C] said that he loves each of his parents. He said that prior to his parents separating he would have described his mother as a “good Mum”. However, he said that in the past two months she has become “meaner and meaner”. Throughout his interviews he repeatedly stated that his mother is a “mean, forceful and scary” person. He also described her as “rude”.

    102. Examples provided by [C] to highlight how his concerns (about his mother) and how his mother is mean, scary and rude included: her ordering him to do things instead of requesting (e.g. go brush your teeth, as opposed to saying ‘will you please go and brush your teeth?); her telling him to clean his room, when to his mind it is already clean; her no longer given (sic) him a choice as to whether she makes his breakfast for him or he makes it himself (instead telling him to get his own breakfast); and the “forceful” tone of voice she uses when she is telling him what to do. He also expressed sadness and unhappiness that his mother “doesn’t like Dad”, something [C] said not only hurts his father’s feelings but his as well. He said that he is also very upset that his mother wants his father’s money and has apparently told someone all of his father’s passwords allowing that person to access his father’s computer and his finances. Whilst [C] said that this did not sound like things his mother would do, he is confident that she has behaved in such a way because of conversations he has had with his father.

    103. [C] also feels aggrieved that, from his perspective, his mother deliberately misled him in July 2017 when she told him and [B] they were going on a holiday. He said that he now knows that it was not a holiday and that his mother just wanted to “get away from Dad”. He said that no one officially informed him about his parents separating. He “figured it out” himself after observing the changes in how his parents spoke with one another and the manner in which they argued intensified. He said that he felt (and continues to feel) “very sad” upon realizing that his family has broken-up and his parents have separated. He seems to assume that his father is feeling and thinking the same way he does about the separation.

    104. [C] expressed a very clear desire to get his parents back together and his family to reunite. He desperately wants things to go back to “normal”. He believes that this is exactly what his father wants too. [C] appears to think is highly (sic) likely he can make this happen if he continues to refuse to see his mother without his father also being present.

    105. Various comments [C] made suggest that he finds changeovers to be extremely stressful and emotionally overwhelming, not least because he has one parent telling him he does not have to go and another parent telling him that he has to comply with Court orders. [C] was asked about his reported distress in the weekends when in his mother’s presence and his relatively positive, calm engagement with her during this assessment. Beyond saying “Dad’s here” (seemingly referring to the fact his father was present at report interviews, as was his mother), [C] struggled to explain his feelings or the apparent difference in his behaviour.

    (Report of Dr V dated 5 December 2017, pp 27 – 28)

11. I place particular weight on the matters reported at paragraph 104 which senior counsel for the husband fairly acknowledged is an approach which is available to me.  If the normalisation of which C speaks in paragraph 104, that is, his parents reconciling and the family being reunited in the family home is not available, which it is not, I accept that he would want to continue to live with the husband. 

12. C misses B (paragraph 106) and says that he wants to spend limited, virtually supervised time with the wife (paragraph 142).  However, there is nothing in the report which suggests that it is within C’s contemplation that he wants his relationship with his mother to wither into some tokenistic version or a mere shadow of the relationship that existed between them only a few months ago. 

13. In relation to B’s views, Dr V said:

    117. [B] perceives herself and her mother to be emotionally close. She said that this is due, in part, to them both being females and having similar interests and talents and because for “most of my life” it has been her mother who has been responsible for her care and for getting her to and from school and activities. [B] also spontaneously spoke positively about members of her mother’s extended family.

    118. [B] described the realization that her parents had separated as a surprise. She said that since then, her mother has explained to her what happened and that the separation is final. When asked how she feels about the reorganization of her family unit, [B] said flippantly “I don’t really care”. However, she also commented that she misses [C] and, despite the fact that he can sometimes be annoying, she does not like them living apart. She commented that she thinks that [C] has changed since moving to live with his father, “like a werewolf or something”. She said that he seems scared of their mother, something she is at a loss to explain, because “Mum’s not scary”. She lays the blame for [C’s] fear squarely at her father’s feet. In her opinion, the only plausible explanation for [C’s] changed personality and behaviour and his rejection of her and [the wife], is [the husband] must have done or said negative things about [the wife] to [C] or in his presence.

    (Report of Dr V dated 5 December 2017, p 31)

14. There is nothing in B’s discussions with Dr V which would suggest that B wants her relationship with her father to wither into insignificance in the long-term. 

15. At paragraphs 143 – 146 Dr V analysed the children’s views and the effect of making their views determinative of the outcome of these proceedings.  It is not possible to know whether, when the evidence adduced in the parties’ respective cases is tested and upon cross-examination of Dr V, her opinion would survive unscathed.  However, at this stage I am satisfied that the analysis that she brings to bear on the facts and her opinion should be given considerable weight, including, of course, her recommendation as to the importance of the children being reunited. 

1. It follows, as the submission of the Independent Children’s Lawyer (“ICL”) made yesterday demonstrated, that the court should thus consider how the children could be reunited and how they should maintain their relationship with the parent with whom they do not live.  I have already briefly mentioned the parties’ personal circumstances which are more fully set out in the reasons for judgment of Le Poer Trench J, given on 26 October 2017.  I respectfully adopt his Honour’s analysis of the law governing situations such as this, and his assessment that in relation to the children’s day to day needs they can live safely and well in the care of either parent. 

2. I make that observation notwithstanding the matters that were put to me yesterday by senior counsel for the husband concerning the wife’s mental health.  It is accepted that the evidence suggests that the wife contemplated ceasing medication prescribed to manage her mental health and nocturnal seizures.  However, the expert opinion of Dr H, a psychiatrist who has known the wife for some years, is that despite the wife having told her that she had stopped taking prescribed medication, the wife was stable.  This accords with the observations made of the wife by Dr V.  Dr V is not qualified to express an opinion about whether the wife suffers a mental illness, but the point made by Dr V is that during the assessment the wife appeared mentally stable.  However, the issue having been raised and there being evidence that the wife has not been fully compliant with taking prescribed medication, I sought and was given an undertaking by her that she will, in the future, comply.  I proceed on the basis that the wife will abide her undertaking.

3. I am satisfied that it is in the children’s best interests, pending further order, for them to be reunited in the care of the wife.  This will, to use C’s terms, normalise important aspects of their lives.  It continues the children in the care of the person who has been primarily responsible for their care all of their lives and who, on the evidence, has been an able primary carer.  The children will continue to attend their current schools and the important sibling relationship will be protected.  Dr V details the risks to the children as siblings if reunification does not take place sooner rather than later. 

4. On the evidence available to me, the setting for the children being in the care of one parent, where that is most likely to be successful, is in the care of the wife.  The approach taken by the husband in relation to B suggests that he does not expect to be able to force her to live with him against her will.  It follows that if the children are to be reunited the husband more or less accepts that this would have to be in the care of the wife. 

5. There is no doubt that this presents challenges for the wife in relation to C because it does not accord with his views.  There is no doubt it provides challenges to the husband in giving effect to the order which will require him to ensure that C returns to the wife’s care.   However, unlike the situation that has prevailed to date, the parties now have the benefit of Dr V’s report.  It provides very useful guidance to them about how they should approach the distressed position their children are in.  These parties have achieved obvious success in life and each has the capacity to understand the gravamen of the advice provided by Dr V, and, importantly, the potentially damaging consequences for their children and for them if they persist as they have to date.

6. The effect of this is that I am satisfied that with the skills they each have as parents, enabled by the information contained in Dr V’s report, that they can give effect to orders which require the children to be reunited in the care of the wife and to implement the orders which will require both children to spend time with the husband. 

7. This, of course, presents some challenges for the wife with B, because B will not immediately embrace the idea.  But I found the observations of Dr V of B with the husband and brother of real assistance.  B is not frightened of her father.  She feels disappointed about the situation that has unfolded, and, perhaps consistent with her age, she was quite combative with him about it.   The husband did not manage that confrontation quite as well as he might, but what he is able to do is see from the report how Dr V intervened and managed B’s combative approach towards him.  The wife can see from Dr V’s report how she managed B’s oppositional behaviour during the time that B was on the premises and in the interviews themselves.  The wife should be guided by Dr V’s approach and apply it to what I anticipate will be B’s initial resistance to spending time with the husband.   She is capable of doing so.

8. The parties have brought the children to a fairly critical point in terms of the children’s ability to adjust to their parent’s separation.  They need, in the interests of their children, to make the orders which I will make work. 

9. I have considered making no change to the current living arrangements pending the further investigations that are to be undertaken by Dr M.  But it seems to me that doing nothing is not an option for the children.  The inevitability of more delay is to simply continue the ambiguity around the children’s living arrangements, which Dr V said has been so unhelpful for them.

10. The parties agree that there should be an order for equal shared parental responsibility, notwithstanding that there is evidence of family violence and reasonable grounds, therefore, for the court to be satisfied that there has been family violence.  Counsel for the wife acknowledged that it is not the wife’s case that the husband poses an unacceptable risk to the children of exposure to family violence.  There was no suggestion that the matters to which the wife deposed should stand in the way of the children spending unsupervised time with the husband.  That accords with my assessment of the evidence.  

11. I am, therefore, satisfied that an order for equal shared parental responsibility is in the best interests of the children.  I am heartened that, notwithstanding their positions initially taken around the celebrations for Christmas, that with not too great an effort, the parties have been able to compromise and come to an agreement about it.  It bespeaks a more considered approach to the situation than has brought to bear to date and is a small but hopeful portent of better things to come.  It also suggests that the court can have more confidence that the parties will be able to ensure that the children move between them without the distress that thus far has been evident for the children, and I suspect also at times the parties. 

12. In terms of, therefore, the children’s time with the husband, there is no suggestion of equal time.  Neither party was concerned yesterday about how the amount of time the children spent with him should be categorised, about whether it was substantial and significant time or not.  Various alternatives were put with the emphasis being on what would be in the best interests of the children.  I am satisfied that the orders to be made are in the bests of the children. 

13. I have changed the proposals in terms of where handover takes place because it needs to be as clear as possible that it is the responsibility of the wife to take the children to the husband to spend time with him, and it is his responsibility to take them back to her at the end of those periods.  The point being that the obligation is on the parent in whose care the children then are, to give effect to my orders.  This has the effect of sending the clearest message to the children that in their mother’s case, she willingly takes them to their father, and in their father’s case, he willingly takes them to their mother.  No more of the ambiguity evident in the changeovers that have taken place to date.

14. For good reason, the parties ruled out the possibility of longer periods of time during the forthcoming school holidays.  The proposal of the wife was essentially for alternate weekends, and Wednesday evenings.  In my view, given that the children are now on holidays for the summer break, they can and should spend more frequent time with the husband than simply alternate weekends.  I propose to make orders for the forthcoming holiday period, which provide for time each weekend.  It is understood that the future holiday arrangements will be discussed between the parties and informed by their consultations with Dr M.

15. I have tried to calibrate C’s return and the agreed Christmas arrangements with the commencement of regular weekends so as to provide a logical set of arrangements and the opportunity for the children to have pleasant time with their father during the school holidays.  This will move to slightly longer alternate weekends once school resumes.  It seems important once school resumes that the children have some weekend time with the husband, as well as weekend time the wife. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 December 2017.

Associate: 

Date:  24 January 2017