Carl and Watson

[2010] FamCA 188

FAMILY COURT OF AUSTRALIA

CARL & WATSON [2010] FamCA 188

FAMILY LAW – CHILDREN – Best interests – Days child is to attend pre-school

Family Law Act 1975 (Cth)

APPLICANT: Ms Carl

RESPONDENT: Mr Watson

FILE NUMBER: SYC 1258 of 2007

DATE DELIVERED: 24 February 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dawson

COUNSEL FOR THE RESPONDENT: Ms Fallon

Orders

1. Pending further order, orders 1.3, 1.4, 1.5 and 1.6 of the orders of the court made on 25 March 2009 be suspended.

2. I make orders pursuant to 2 and 3(a) and 3(b) of the application of the mother filed on 11 February 2010.

3. I note the mother has undertaken to be responsible for the payment of the B Child Care Centre fees, and has requested the father to meet one half of those payments by repayment to her.

4. I reserve each parties costs of the application filed 11 February 2010 and attendance at court today, and direct that that application be prosecuted before the trial judge at the conclusion of the proceedings listed to commence on 9 March.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1258 of 2007

MS CARL

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application by the mother, Ms Carl, such application being filed on 11 February 2010.  By that application she seeks to vary orders which were made by this court on 25 March 2009 so far as they relate to the pre-schooling of the parties’ child, J, who was born in August 2006 and is now just three and a half years of age. 

2. The mother seeks to change the days that the child is to attend preschool during 2010 from the original proposal of each Tuesday and Friday to each Tuesday and Wednesday.  She proposes that she would deliver the child to B Childcare Centre and collect him from that centre each Tuesday whilst the child is in her care, pursuant to other orders of the court.  She proposes that she would deliver the child to the childcare centre at the commencement of Wednesday and that his father would collect him from the preschool at the conclusion of the preschool day.

3. In support of that application she has filed, and I have read, an affidavit which was filed on 11 February 2010.  The father filed a response to that application yesterday, 23 February 2010, and supported that response with an affidavit, sworn on 22 February 2010.  By his response he seeks that the mother’s application be dismissed and that she pay the father’s costs of the application. 

4. Fortunately for the court, there is before the court as an exhibit in these proceedings a family report, a very extensive family report which was concluded and signed on 20 January 2010 by Ms E, a family consultant. That report runs to some 27 pages and concludes with a recommendation that should the court be satisfied that the mother’s mental health and her behaviour does not compromise the child’s safety, then consideration should be given to the child living primarily with her and spending significant and substantial time each alternative fortnight with his father.

5. The recommendations go further to indicate that should the court find evidence that indicates some basis to the father’s concerns about the mother, that is about her mental health or her interaction with the child, then consideration should be given to the child living primarily with the father and spending time with the mother on alternate weekends.  There’s a recommendation that the child spend equal time with parents during school holidays. 

6. The first recommendation, which is the primary recommendation, is, I must say, somewhat surprising, given the fact that the child has been living with his father more frequently than his mother since, I understand, orders were made in January 2008.  Clearly, there will be considerable contest between the parties in relation to those matters that I have just touched on, forming part of the recommendation of Ms E, when the final hearing commences in two weeks time on 9 March 2010.

7. In the mother’s affidavit she says that she has been offered a place for the child at the B Childcare Pre School each Wednesday in lieu of Friday and that she wishes to take that opportunity to have him attend on that day.  The father’s evidence is that the child has not been able to attend at the preschool on any Friday this year.  The first day that he was due to attend was on 29 January this year.  However, I’m told that that was a day when the parties were at court, and the court record shows that on 29 January the parties were at court.  Both the mother and the father appeared to be present when the matter was before Fowler J on that day. 

8. As best I can discern, and looking at paragraph 12 of the father’s affidavit, he says that on Friday, 29 January 2010 the matter was listed for mention and he was required to be in court at 9.30 am.  He had made arrangements for his mother to take the child to B Preschool.  The child protested.  The father capitulated, and the child wasn’t required to attend.  Whether or not that would qualify for complying with the court’s orders or not, no doubt will be a matter of debate and some focus during 9, 10, and 11 March. 

9. Of course, the parties are aware that pursuant to the Family Law Ac,t one of the matters that the court has to consider in determining an application in respect of parenting orders relates to the parties’ prior compliance with and willingness to comply with orders of the court.  So, as I said, that, no doubt, will be the subject of some consideration. 

10. The next occasion that the child was required to attend at preschool with his father was 5 February.  On this occasion the father arranged for his mother’s partner, a gentleman by the name of Mr L, to take the child to B Preschool.  That was unsuccessful.  The father wasn’t present at the time, and he says he received a telephone call from Mr L saying, “[J] is very upset, you’ll need to come home.”  The father went home, picked up the child sometime after 10 am, drove him to Preschool – Mr L was with him - and when they got there the child refused to leave the car.  Somebody from the childcare centre came to speak to the child, and, the father says, told him that the child looked tired and upset and should take him home.

11. The third attempt by the father to convince the child that he should attend this centre occurred on Friday 12 February 2010, and the father took the child to B Preschool with Ms M, who is his fiancée, as I understand.  They got to the centre, got inside, and the father played with him on the computer at the suggestion of one of the childcare workers.  However, when it came time for the father to leave, the child grabbed hold of his leg and, effectively, became distressed.  And on that occasion the father took the decision to remove him from the centre and take him home. 

12. That was the last time that the affidavit addresses - and I think there was one other day, 19 February, prior to the signing of this affidavit on 22 February.  The affidavit is silent about what happened on 19 February, but I think I can reasonably assume that the child did not attend at the preschool.  There is no evidence that the child experiences the same problems with his mother whilst separating to attend the preschool.  It seems that he goes willingly to preschool with her and participates at the preschool in what might be described as a normally expected fashion for a child of his age.

13. Now, it is somewhat unusual that the court is asked to determine an issue such as this on, literally, the eve of a hearing which has been set down to finally determine the case. Three days, as I have said, have been set down, commencing 9 March 2010.  But the urgency of the matter is that a place has been found for the child for Wednesday, which would enable the child to attend at the preschool, having been taken by his mother, and, therefore, it might reasonably be anticipated that he would separate easily from his mother at that venue and would not be exposed to the trauma that he apparently has been exposed to whilst his father has been trying to have him attend that venue. 

14. Again, no doubt, the causes for why the child has an entirely different reaction when taken to this preschool by his father as opposed to his mother will be explored during the course of the hearing. Some of those reasons may ultimately transpire to be appropriate, however, there is certainly a possibility that some of the reasons might be found to be entirely inappropriate and not conducive to the best interests of the child.

15. The parties, on 25 March 2009 when they entered into consent orders, clearly understood and indicated that they accepted that it was in the best interests of their child that he attend at this centre, B Preschool, and that he attend for two days of each week.  As I raised with the father’s counsel, as at yesterday, the father clearly still supported the proposition that the child should attend this preschool two days a week. 

16. Had he thought otherwise, it was reasonable to expect that the response filed yesterday would have sought orders different to that which had been sought, namely that the mother’s application be dismissed.  One of the difficulties about making orders this close to a final hearing is that the orders can impact on the decision that the court itself is being asked to make.  If no order is made, as sought by the mother, then there is a possibility, if not a probably that in three, or four, or five weeks time when the court makes a decision in this matter, the Wednesday spot will no longer be available.

17. Therefore, if the court concludes the first recommendation of the family consultant, the court concludes there’s no aspect of the mother’s mental health or behaviour which might compromise the child’s safety, and further concludes that it’s in the child’s best interest that he live primarily with his mother, then his welfare may well be seriously hampered by the fact that he has lost the opportunity to attend on Wednesday. 

18. The other side of the coin is that by changing the days that he attends so he attends on Tuesday and Wednesday, it may be, or no doubt will be submitted on behalf of the mother that the arrangements are already in place, and, therefore, there is another reason why her application in respect of final order should be followed and accepted rather than the father’s.  So although it may seem to be a small issue, the repercussions of a decision in relation to this small issue can be quite far reaching.

19. I have said I have read the family report, and at the conclusion of this case I will have some words to say to the parties about what flowed for me as a result of reading that report.  To say the least, I was very saddened for the sake of the child by the picture that emerged of the type of parenting that he is being exposed to.  This court sees the outcome for children of older ages than J of being exposed to ongoing conflict between parents, of being exposed to an environment where the child must clearly understand that neither parent has any regard for the other parent as a person. 

20. I encourage the parties to do some personal research of their own by reading journals, textbooks and the like.  Find out from properly conducted studies that have been conducted all around the world about what the outcome is likely to be for their son J if they don’t change the way in which they are parenting him at this time.

21. One of the matters that concern me about this very small issue that I have to decide is the impact on the child of being required to attend at preschool on Friday at the behest of his father, where the last three and possibly four Fridays it has involved him in trauma.  It is hard to imagine the impact on the child of having to experience that trauma.  If ultimately it is determined by the trial judge that the trauma is a show for the father that, in fact, what is happening is some form of reverse parenting, where the child feels that the father has an expectation that the child does not or should not attend the preschool, then that would be a very serious matter for the court to have regard to in relation to the overall welfare of the child. 

22. Day in day out this court hears from psychiatrists and psychologists specialising in the emotional wellbeing of children as to the adverse impact on those children of being exposed to trauma.

23. So if the orders sought by the father are made, then the father will be required to continue to have the child attend at preschool on Friday, and to continue, therefore, the distress and trauma he has been exposed to in recent times.  Having regard to all those matters I conclude that the court should make orders which require the child to attend at the preschool on Tuesdays and Wednesdays as proposed by the mother.  There is nothing in the father’s affidavit material to say why it is that the activities and types of activities that the father enjoys with the child on Wednesdays could not be transposed to Fridays.  The affidavit is silent about those matters. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench 

Associate: 

Date:  9 March 2010