CALVERT & MERCER

[2012] FamCA 759

FAMILY COURT OF AUSTRALIA

CALVERT & MERCER [2012] FamCA 759

FAMILY LAW – CHILDREN – Interim application by the father – Live with – Best interests of a child – Where the child’s living arrangements have been  repeatedly altered were not developmentally appropriate – Young child  - Where there is poor communication between the parents – Appointment of an Independent Children’s Lawyer – Orders for the child to spend each weekend with the father.

Family Law Act 1975 (Cth), s 68L

APPLICANT: Mr Calvert

RESPONDENT: Ms Mercer

FILE NUMBER: SYC 3908 of 2009

DATE DELIVERED: 23 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 23 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: David H Cohen & Co

SOLICITOR FOR THE RESPONDENT: Brian Quinn & Associates

Pending further order

1. That the parenting orders made 7 September 2011 are discharged.

2. That the father shall spend time with the child, C born … April 2008 as follows:

   (a)       from 5.00 pm Friday until 5.00 pm Sunday every weekend;

   (b)       at such other times as the parties agree in writing.

3. That changeover shall take place at H Police Station.

4. That the parties shall establish a communications book in which significant matters relevant the child’s welfare are recorded and a short summary of the child’s routine and what she has been doing will be included on each occasion of changeover.

5. Pursuant to s 68L of the Family Law Act 1975 (Cth) that the child (C) be represented and I request that Legal Aid NSW provide that representation.

6. As soon as each party is notified by the Independent Children’s Lawyer (“ICL”) of the ICL’s appointment, each party shall serve copies of all applications and affidavits filed by the party upon the ICL.  In addition, the applicant shall provide the ICL with a copy of orders and reports.

7. Pursuant to s 65DA(2) and s 62B, 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 these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calvert & Mercer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3908 of 2009

Mr Calvert

Applicant

And

Ms Mercer

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. These are parenting proceedings in relation to the parties’ only child, C (“the child”).  The child was born in April 2008.  The child was 13 months old when her parents separated and 15 months old when Mr Calvert (“the father”) commenced parenting proceedings in this Court.  The proceedings have never been finalised and what comes before me today is one of a series of interim applications in relation to the child’s living arrangements. 

3. As the brief chronology of key events will show, post separation the child’s living arrangements have altered on numerous occasions.  Sometimes unilaterally, primarily by Ms Mercer (“the mother”), and on others by agreement.  As to the latter however, the various agreements reached by the parties rarely resulted in a developmentally appropriate arrangement for the child.

4. This was alluded to in 2009 by a Family Consultant who in a Child Responsive Program Memorandum said (at page 4):

   ·Neither parent seems to have a strong understanding of the   emotional- psychological development of young children, nor do they seem to fully understand the possible impact of their behaviour and proposals on the long term psychological development of their child. 

   ·While both parents are able to articulate the difficulty they each have experienced being separated from [the child] following their separation, they both had some difficulty reflecting on [the child’s] experience of being separated from her father and mother for long blocks of time.

5. With respect to the parties, not much changed following receipt of that memorandum nearly three years ago.  As will be seen, it may well be the case that the parties have unfortunately been unable to plan their daughter’s living arrangements with her developmental needs at the forefront.  Recitation of the agreed chronology makes this point quite well.

6. The parties commenced cohabitation in April 1997. 

7. Separation occurred on 1 May 2009.  As was mentioned earlier, the child was 13 months old.  Without notice to the father, the mother returned with the child to her family in North Queensland.  There is no doubt the mother’s action was unilateral and although the parties’ circumstances probably made it reasonable that she desired to be with her family, she appears to have given scant or no thought to the effect on the child’s relationship with the father if their time was severed or as limited as she subsequently suggested, might occur.

8. The Family Consultant commented on the child’s developmental needs and the support she requires in terms of contact with significant people is apt.  She said, at page 5:

   As [the child] has entered an age characterised by a wariness of people not seen regularly, any prolonged interruption of [the child’s] relationship with each parent should be minimised as it increases the possibility that she may experience difficulty feeling safe in their care in the future.

9. One would doubt that this would be news to any parent. 

10. In any event, the mother brought the child to Sydney in August 2009 and it would appear, and it is the father’s evidence that the child was in his care from 7 to 21 August 2009.  That is a block period of 14 days.  The Family Consultant thought the period was seven days and it is submitted on the mother’s behalf that it was 10 days.  Although it is pleasing and no doubt was appropriate that the child was brought to Sydney to spend time with her father, the block period suggests little appreciation by either parent about the child’s developmental needs and that she had not seen her father for three months.  She was then 16 months old.  It is difficult to contemplate what the parties thought would be the effect on the child at separation from the person who, albeit imposed on the father, from 1 May 2009 cared for her day in, day out.  With respect to the parents, the arrangements they implemented in August 2009 were a poor response to the child’s developmental needs.

11. In any event, the Court ordered that the mother return the child to Sydney to live by no later than 31 October 2009. 

12. The mother returned with the child to Sydney on 27 October 2009 and moved into rented accommodation at Suburb A.  The father continued to reside in the parties’ rented flat in Suburb M.

13. It was a condition of the mother’s return to Sydney that the father pays $150.00 per week towards her expenses.  He did this twice and has been in consistent breach of that order ever since.  So to the extent that it is alleged on the father’s behalf that the mother and not he has breached orders, this is a simple vignette which demonstrates the lack of regard for orders has not been a one way street.

14. In any event, the orders which resulted in the mother returning the child to Sydney provided that the child would live with her and one day each week spend time with her father.  In one week this occurred from 9.00 am Saturday to 5.00 pm Sunday and in the other week it was overnight on Friday nights.  Provision was also made for a meal on Wednesday evenings.  So that it is clear, at 18 months of age, the arrangement for the child was that she lives six nights in seven with her mother and one night with her father.

15. This, it would seem, continued for the best part of the following 12 months. 

16. In October 2010, having attended a meeting at a Family Relationships Centre the parties entered into a parenting plan.  It must be borne in mind the child was then two and a half years old.  Their agreement was that she would spend four nights with her mother and three nights with her father each week on a rotating basis.  As exchanges between bench and bar table would have indicated, I am concerned about the lack of regard the parties seem to have given to the observations made by the Family Consultant earlier referred to.  It is difficult to see how this arrangement had regard to the child’s needs.  While it might have suited the parties’ desire for each of them to be as involved in her life as possible and was practically easy to implement, it is unlikely that this is an arrangement that would have received the Court’s imprimatur as being in the child’s best interests.  But perhaps more will become known about how that arrangement actually came about at the final hearing.

17. In any event the four night/three night dichotomy, which I prefer not to call a routine, was implemented and with some ad hoc adjustments, continued until about March 2011. 

18. It is the mother’s unchallenged evidence that in March 2011, the father kept the child without her consent for 10 days.  The significance of this would appear to be that it was inconsistent with the agreement and unilateral.

19. The mother moved to Town U on the Central Coast in March 2011 again, without notice to the father.  Self-evidently, not only with notice not given, there was no discussion with him about how this might affect the parties’ capacity to co-operatively parent their daughter.  The mother’s evidence that she could no longer afford to reside in Sydney would seem to have a ring of truth about it.  In any event, she obtained rented accommodation which seems to comprise a cabin at the rear of a larger property at Town U where she has continued to reside ever since.

20. On 7 March 2011, the mother signed a document headed, To Whom It May Concern, which it is common ground, was intended for Centrelink.  The effect of the document was that it records the parties’ agreement that the child would live four nights each week with the father and three nights each week with the mother.  As was mentioned earlier, it was in March 2011 that the father retained the child for 10 consecutive days without her consent. There is an issue alluded to but not explored in the affidavit evidence at any length.  I am not critical of the drafters for that but there would seem to be an issue about how it is that that document came to be executed.  More of that no doubt at the final hearing.  But, in any event, putting aside the 10 day period referred to, between March 2011 and 26 May 2011, the arrangements referred to in Annexure “D” to the father’s affidavit were implemented.

21. So that it is clear, this arrangement lasted for about two and a half months and is the only period post-separation where the child’s time has been more extensively with the father than with the mother.  The mother’s decision to terminate the Annexure “D” arrangement and indeed even, it would seem, the parenting plan was unilateral and undoubtedly imposed on the father over his objection.

22. It is the mother’s evidence that the child was not coping with that arrangement, again a matter which no doubt will be a matter of interest at the final hearing because it would seem there is no suggestion by the father that the child was not coping with him.  But again, the evidence on this point is brief and I can do little more than note the commencement and cessation of time and its unilateral nature when looking at the May 2011 and period which followed.

23. Though the matter came before the Court on the father’s application on 2 August 2011, on that occasion, following a defended hearing on the papers or what I apprehend to be on the papers, the Principal Registrar ordered that the child lives with the mother and spend time with the father four nights in 14.  This arrangement was implemented until 7 September 2011 when the Principal Registrar amended her orders pursuant to the slip rule.  This change resulted in interim orders which provided that the child live with the father four consecutive nights and the mother three consecutive nights each week.  In effect, the Principal Registrar made orders consistent with the Annexure “D” agreement.

24. Thus, for the period then following there is a suite of orders, the effect of which is that again the child spent more time with the father than she did with the mother.  This arrangement continued until 25 March 2012 on which occasion the mother again unilaterally withheld the child.  There can be no doubt that when she did this she acted contrary to the Principal Registrar’s orders.

25. It is the mother’s evidence that the child was demonstrating behaviours and distress which prompted her to commence seeing a psychologist named V from “[Kids Counselling Service]”. The behaviours which troubled the mother are set out at par 17 of her affidavit as follows:

    I made that decision because of problems I was having with [the child’s] behaviour.  Among other things, [the child] started to wet the bed at night despite being toilet trained from the age of one.  [The child] was also wetting herself in public or she would pull her pants down to urinate like a man and she used to do [sic] in our back yard and also she did it once in a park.  [The child] was also becoming increasingly anxious and clingy before and after change overs, and she sometimes got herself so worked up, that she would hyperventilate.  [The child] was saying to me at that time, things like that Daddy was angry with her, and she would be sad and depressed and ask that I take her home, saying “Take me back to mummy’s house.”  [The child] would say to me “Mummy is it my fault” and then she would say to me “Is it your fault’ and at that time [the child] was also hitting, punching and scratching me around that time.

26. According to the mother, and it does not seem to be a matter of dispute, the psychologist recommended that the arrangements change.  It is not at all clear that the psychologist recommended that the mother stop the child seeing the father altogether.  Again, something further for consideration at the final hearing.

27. The matter then came before me on 4 May this year for a first day               Less Adversarial Trial.  I ordered pending an adjourned date, namely 14 June 2012 that the child lives with the mother five nights a week during the week and with her father each weekend.  It was anticipated by me that there would be an application by the mother to review out of time the orders made by the Principal Registrar and that on 14 June 2012 the child’s living arrangements pending the final hearing could be looked at afresh.

28. In the event, the matter came before Rees J on 14 June 2012.  In the circumstances where nothing had been filed, her Honour ordered that the orders made on 4 May 2012 continue pending further order.  Arrangements were made for the matter to come before me on 23 July 2012 and for any interim applications to be dealt with that day.  This is that hearing.

29. It is the mother’s evidence that the current arrangements seem to be working better from the child’s perspective and the observations made of the child’s behaviour referred to in paragraph 17 of her affidavit quoted above are that the child is that she is generally more settled, albeit there is ongoing problem with bed-wetting before and after the child spends time with the father.

30. There is no evidence from the father which suggests that the current arrangements are not working from either the child’s or his perspective.  His concern essentially is having secured the mother’s agreement in March 2011 and subsequent interim orders for the child to spend more time with him, it is in the child’s interests that what was referred to in submissions as a stable living arrangement is resumed. 

31. On analysis of the history to date, I cannot accept that the child’s living arrangements could appropriately be described as settled at any time following separation other than the 12 month period between October 2009 and October 2010 when the child lived six nights out of seven with the mother and one night with her father.  That is the single most consistent period of stable living arrangements post separation.

32. It is the father’s essential point that unless the arrangements revert to the four nights with him and three nights with the mother, the child’s relationship with him might be in jeopardy.  Reference is made to the mother’s unilateral decisions, even in the face of orders to the contrary, which have resulted in a reduction in his time with the child.  There is some force to that submission.

33. He points out that he continues to reside in the home that the parties lived in prior to separation and, in effect, that his arrangements are well settled.  He does not have paid employment and is in a position to care for the child.  The submission made that he has not acted unilaterally or failed to comply with court orders is, as I have earlier mentioned, not accepted.

34. The mother, in effect, submits that she can be trusted to adhere to the orders and she too points out that she is now in settled accommodation having lived consistently at Town U for the last 17 months or so.  Her financial circumstances would appear to be settled, albeit they are limited.  In her care, the child attends pre-school one day a week where she has made friends who advance her developing social skill.

35. There is no doubt that communication between the parties is poor and limited.  Each says this is the other person’s fault.  It was recommended in 2009 that the parties institute a communication book which until recently has not occurred.  It is the mother’s evidence that her attempts twice this year to introduce a communication book have been met with disdain by the father. The inability of the parties to constructively communicate in relation to their daughter makes an arrangement such as the four night/three night arrangement for a four year-old problematic.  The child is far too young to communicate matters in relation to her welfare to each of her parents.  She is entirely reliant on them doing so and their inability to communicate is a quite troubling aspect of an approach which involves such significant time in each parent’s care.  It is problematic even on the mother’s proposal of continuation of the five night/two night arrangement I ordered in May.  Where the difference would lay is that there is a reasonable history of the child spending weekends with the father and him being able to care and attend to her needs in that context and perhaps a less need for the parties to communicate in relation to, for example, social activities and the like when there is a dichotomy between the week and weekends.  I accept however the distinction is a fine one.

36. More importantly, is the need to preserve some stability in the context of a family report to commence later this month and the likelihood that there will be at the final hearing, another change to the child’s living arrangements.  More change now against the plethora of changes imposed post separation, in my opinion, is quite strongly contrary to the child’s interests. 

37. I am not persuaded that reducing the child’s time with her father to two nights each week threatens her relationship with him.  It is sufficient time for a parent with the good relationship he says he has with the child and which was evident to the Family Consultant in 2009 to preserve, maintain and provide her with the benefits of that relationship pending the final hearing.

38. On balance, and in circumstances where any failure by the mother to observe the orders is likely to be promptly brought to my attention, it more likely than not that she will comply and the child will spend the time with the father as ordered.

39. The only other matter that will result in a change to the orders is a requirement that the parties establish a communication book and document significant matters in relation to the child’s welfare and a brief overview of what she has done whilst in each parties care.

1. The father’s application will otherwise be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 July 2012.

Associate:     

Date:              4 September 2012