Chappell and Reiner

[2016] FCCA 2790

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAPPELL & REINER [2016] FCCA 2790

Catchwords:
FAMILY LAW – Parenting – live with arrangements – child with behavioural issues – risk.

Legislation:

Family Law Act 1975, ss.11F, 65DAA

Applicant: MR CHAPPELL

Respondent: MS REINER

File Number: DGC 2257 of 2015

Judgment of: Judge Harland

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Dandenong

Delivered on: 14 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Howe

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Knight

Solicitors for the Respondent: Knight Family Lawyers

ORDERS

1. All previous orders be discharged.

2. The Mother and Father have equal shared parental responsibility of X born (omitted) 2007 (“the child”).

3. The child lives with the Father.

4. The child spend time and communicate with the Mother as follows:

   (a)each long weekend during the school term from 10.00am on the first day to 3.00pm on the last day;

   (b)one weekend as nominated by the Mother during school holidays, with that time to be from 10.00am on Saturday until 3.00pm on Sunday;

   (c)during school holidays from Monday on the first week at 9.00am until Friday on the second week at 9.00am;

   (d)during Christmas holidays from 3.00pm on Christmas Day until the second last Saturday of the holidays;

   (e)On Mother’s Day from 6.30pm on the Friday of the Mother’s Day weekend until 2pm on Sunday of Mother’s Day;

   (f)Each Monday and Friday between 7.00pm and 7.30pm by telephone, face-time or Skype. With the Mother to initiate the calls, and other times as requested by the child. The father is to ensure the child answers the Mother’s telephone calls, and the Father to ensure that he encourages the child to communicate with the Mother; and

   (g)At any other time by agreement between the parties by SMS text message.

5. The child spends time with the Father on Father’s Day from 6.30pm on Friday of the Father’s Day weekend until 2pm on Sunday of Father’s Day.

6. Handovers are to occur at McDonald’s (omitted) unless otherwise agreed between the parties.

7. The parties be restrained from consuming illicit substances 24 hours prior to or during any time that the child is in their care, or exposing the child to any person who is illicit substance affected.

8. The Father to seek and undertake parenting support in the form of education about how to attune emotionally and lead a child or adolescent in reflection on and regulation of strong emotions including anger.

9. The Mother to undertake counselling.

10. Both parties to attend a Parenting After Separation course if they have not already done so and provide a certificate of completion to the other party.

11. Each of the parties, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and discussing these proceedings with or in the presence or hearing of the child or upon permitting any other person to do so.

NOTING

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2257 of 2015

MR CHAPPELL

Applicant

And

MS REINER

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This case concerns X born (omitted) 2007 (“X”), who is nine years old. This case is really about balancing various factors for and against both parents. The father has two adult children from a previous relationship:  Ms M, who is aged 24 and Mr S, who is aged 26.  The mother has four other children:  Ms B, who is aged 23; Ms S, who is aged 22; A, aged 15; and B, who is seven years old.  A lives with his father, and B lives full time with his mother.  The mother is engaged to be married, and her fiancé has a daughter, C, who lives with them on alternate weekends. 

3. Prior to 2014, the parties had worked out informal parenting arrangements between them where X lived with his mother and spent time with his father.  The parties disagree about the details of those arrangements, but that is not relevant for the issues before the Court today.  The father says he became concerned about X’s welfare in his mother’s household in 2013, that X had some behavioural problems, and the mother had problems managing a household with five children.

4. X came to live with his father in 2014; there is a dispute between the parties as to how long that arrangement was to be in place. X returned to live with the mother at the beginning of 2015. When X was spending time with the father during the Easter break in 2015, the father refused to return X to the mother’s care. He started Court proceedings in July 2015. A Child Inclusive Conference was ordered pursuant to section 11F of the Family Law Act 1975 (Cth) (“Family Law Act”), and the parties thereafter entered into interim consent orders which provided for X to remain living with the father.

5. The mother seeks orders that X be returned to her primary care, and that X spend time with the father during school holidays and alternate weekends.  The proposal for alternate weekends, whilst generous, is somewhat unrealistic given the parties live a four hour distance away from each other.  The mother’s alternative position is that if X remains living with the father, then she seeks most of the school holidays and every fourth weekend with X.  At the beginning of the hearing, she was seeking alternate weekends, but changed that position after the Court raised the issue of the travel for X.

6. To the parties’ credit, they have agreed on several orders.  They agree that they should have equal shared parental responsibility for X.  They also agree about arrangements for telephone calls, special days, completing a parenting course if they have not done so, and also counselling in accordance with the recommendations of the family report writer.  The issues that I am left to determine is whether or not X should remain living primarily with his father or whether he should return to living with his mother, and if he does return to his mother’s care, the frequency of the time spent with his father.

7. It is of some significance that one of the mother’s daughter, Ms B, filed an affidavit in support of the father’s case.  She was cross-examined.  It is to the great credit of both Ms B and her mother that they maintain a good relationship despite Ms B filing the affidavit, and being cross-examined supporting the father’s case.  There can be no doubt that when X was in the mother’s care in 2011, the mother was not coping.  The Department of Health and Human Services (“DHHS”) was involved and she was involved with the Child First Program.

8. The family consultant refers to the subpoenaed material from DHHS; it was clear that there were several issues of concern in the mother’s household at that time.  It is also clear that the mother continued to have difficulties in 2013.  One of the issues of great concern to the father was X’s attendance at school.  X’s school performance is one of the issues of controversy between the parties, so I will refer to what the school records before the Court show.

9. X was in prep class at (omitted) Primary School in 2013.  He was late on 113 days that year.  He had 13 unexplained absences, four days for illness, and four days absent due to parent’s choice.  The school records indicate in the first term that he had some challenges with writing, that he was energetic but had trouble concentrating and focusing, and he was receiving Cs which is in the average range.  In semester 2, his teacher records that the absences had affected his progress, and that his handwriting was difficult to read.

10. The mother says that with respect to the late days, most of the time it was five to 10 minutes.  She claims that the unexplained absences were due to illness, that she notified the school verbally rather than in writing.  I think it is unlikely that the school would have recorded illnesses as unexplained absences if they had been notified in writing or orally.  Even if it was the case that X was five to 10 minutes late, that still has an impact on a child’s performance at school.  For one thing, it singles out a child as being late, coming into the class after his peers.  That can cause embarrassment and difficulties.

11. The mother has minimised the extent of concern about her ability to get X to school on time in that important first year of his schooling.  In 2014 when X was in the father’s care, he went to (omitted) Primary School.  His attendance record was 98 per cent in first semester.  The school noted that he had a challenging start to the year, coming to the school as a new student and needing to establish new friendships.  They made comments about his writing, and areas of growth for X were understanding consequences for his actions. 

12. He was absent for four days in second semester, and there were also comments about X becoming distracted and losing focus, and that is a recurrent theme throughout his scholastic performance so far.  He was also obtaining Cs that year.  In 2015, in the first semester, he was in the mother’s care and back at (omitted) Primary School.  He was absent for one day, and the mother places a lot of emphasis on her improvement, and certainly that is a massive improvement from previously, but it is also one term.  X continued to have challenges with his writing, and challenges about learning to not speak out of turn.

13. The 2016 first semester report for Year 3 shows continuing problems in some of his behaviour, and problems in some areas of performance where he is below average.  The evidence is also clear that the father has been working very closely with the school to help him manage his behaviours, and that X is on an individual learning plan which provides him with several extra supports including the support of a psychologist as well as a paediatrician, language assessment, and literacy intervention.

14. A psychological assessment of X was conducted in May 2016, and he was found to have processing skills in the average range, but other skills in the extremely low to low average ranges.  In summary, this means that X is able to learn by rote and recall information, but has difficulty understanding the information and expressing himself.  The mother’s solicitor was keen to emphasise the fact that in prep, X was receiving Cs whereas by Year 3 he is, in some areas, below average. 

15. That is a superficial comparison that ignores the fact that it is clear that X has some behavioural difficulties, but also difficulties that challenge his learning. By the time of reaching Year 3, school work is harder.  It is clear that he has been identified as a student who needs extra supports and interventions.  This is not a matter of simply comparing, superficially, school results during the time X was in the mother’s care as compared to the father’s care.  That ignores the behavioural and educational challenges that X has.

16. The family report is helpful in discussing the strengths and weaknesses of both parents.  It is clear that both parents have a lot to offer X, but both parents also have areas of weakness that the other parent is able to supplement.  The observations from the psychological assessment was also apparent to the family consultant when speaking to X. She says that her interview with him was short because he had difficulty expressing himself.  What X did say is that he does not want to change schools again.  I think that is of some significance because clearly, particularly given his difficulties, changing schools would be an added difficulty for him more so than other children.

17. It is also apparent that X has some difficulties with transitions.  Whilst the father seeks to say that that is due to or associated with the periods that X is in his mother’s care, I think it is much more likely due to X being aware of the conflict between the parents, and him having some difficulties with changes and adjusting more generally, rather than the source of the problem being in the mother’s household.  It is one area where the father needs to do some considerable work.

18. It was clear from the father’s evidence that, as the family consultant found him to be, he lacks emotional intelligence.  And the family consultant described him as “effectively emotionally illiterate”.  What was clear when he was being cross-examined is that he had no understanding of the concept when he was asked about the importance of encouraging X to have a meaningful relationship with his mother.  His answer simply was, “Well, he has a relationship with his mother.”  My impression is that he just did not understand the crux of what he was being asked.

19. One of the issues is that the family report talks about “supporting meaningful relationships with both parents”.  I think the use of the word “meaningful” is somewhat unfortunate because it is clear that X does have a meaningful relationship with his parents and a close and loving relationship with both parents.  That really is not in doubt.  The issue is the parties’ respective capacities to encourage and facilitate the ongoing relationship that X has with the other parent and also with important extended family members.

20. It was also clear from the father’s evidence that he does not see the mother’s fiancé and her fiancé’s daughter, C, as having any relevance to X. She really ignores the fact that they are important members of the mother’s household.  They are not transitory figures but part of a blended family.  It was certainly apparent that the mother was far better able to identify the positives that X gains from his relationship with his father, and the importance of X maintaining relationships with members of his extended paternal family.  That was one reason why she was offering alternate weekend time if she was successful, and saying explicitly that if the father could not take up that time, then other members of the paternal family could.

21. Ms B, in her affidavit filed on 10 September 2015, talks about being very concerned about the state of her mother’s household, and refers to not just the physical state of the household, which was an issue identified by DHHS a few years before, but also problems with respect to discipline and X, in particular, misbehaving and being out of control.  And it was for these reasons that she contacted the father to express her concern.

22. Ms B was an impressive witness.  She was very clear that the situation in her mother’s home has improved.  There were no concerns about the physical state of the house, and that whilst it can be a bit cluttered, it’s tidy and given the members of the family, there is nothing wrong with that.  She also talks about the household being better generally.  It is clear that there were some significant problems with her sister, Ms S, who uses drugs, but there has also been other problems when A was in the household as well.

23. She says that from what she sees X and B get on pretty well as siblings, apart from the usual bickering that all siblings engage in.  She talks about X as being “an outdoors kid”, and that one of the things that he benefits from in his father’s care is mutual shared enthusiasm of outdoor activities whereas the mother and her family are more indoor people.  Ms B has observed X in both households as he sometimes stays with the father as well.  She gave further evidence about the difficulties in the household a couple of years ago where X was exposed to that chaotic household, and also physical and verbal altercations particularly between the mother and Ms S.

24. I am satisfied that the mother’s household has vastly improved from the state that it was a few years ago.  One of the things that the mother said, and is open about, is that she has suffered from anxiety and depression for some years.  She also suffers from fibromyalgia.  She said that both those conditions are far better controlled, although she does not provide any medical evidence.  Neither parent is working.  The father is permanently unfit for work after suffering complications after a hernia operation and is on a disability pension.

25. The mother is not working and is caring for B.  X had health problems when he was born, including heart and respiratory problems.  He also has a lazy eye.  Otherwise, X is a healthy and active young boy.  It is clear from X’s comments in his school reports, where students are asked to comment on how they are going each semester, that X does greatly enjoy outdoor activities including football, riding bikes, four-wheel driving, and other activities.  He also goes hunting with his father which his mother disapproves of.

26. It is also clear from the material that the parents have very different parenting styles.  The mother’s is a more permissive parenting style, and more emotionally attuned and less structured, whereas the father’s is very structured with strict rules, and a focus on behaviour and boundaries.  It appears that certainly, at X’s current stage of development and given his behavioural issues, that that is something that he needs and responds to.  That kind of structured household is more important during school terms than during the school holidays when that same level of structure and discipline is not as important for him.

27. The observations in the family report were somewhat significant as they show X having different behaviour with the two parents, and the parents having different responses to that.  The family consultant observed that X was very excited to see B.  He was happy to see his mother, was engaging in rough and tumble play, and appeared to push the boundaries with his mother.  The family consultant also said that X observed a certain degree of deafness to his mother’s authority and was more focused on engaging with B, and says that B appeared to be somewhat disregulated following the observation.

28. The family consultant did note that the mother was able to use a range of parenting styles.  With respect to that observation, the mother says that X had not seen her and B for some time.  Certainly, I suspect that that had somewhat of an impact on that observation session, but I do not think that wholly explains what the family consultant observed.  I think it is more consistent with the different styles and strengths of the parents.

29. With respect to the observation between X and his father, the family consultant says that X was well behaved and focused on activities with his father, and that his father took the opportunity to indicate to X how things might work and help in X’s understanding of things and he also demonstrated a range of parenting styles.  I suspect that X benefits from the one-on-one attention that he can receive in his father’s care, particularly with respect to his schooling but also his behaviour generally.

30. In the family consultant’s evaluation of the family, she observed that although the father presented as unsophisticated, and I certainly agree with that observation, he appeared to have the ability to provide X with activities that assists him regulating his nervous system which, she says, may have been affected by the chaotic environment that he grew up in as a young child, and also the high levels of conflict that he was exposed to between his older half-siblings and his mother.

1. She observed that it appears that the father has been diligent in accessing supports for X and works closely with X’s school.  She observed the mother as struggling with emotional reactivity, and thought that she presented as a victim of many other people including her older children, and that she perceived her difficulties with her daughter, Ms B, as being due to Ms B’s personality traits as opposed to the issues that had been identified by Child First.  I am satisfied that Ms B acted out of genuine concern for X’s welfare, and not due to any other reason.

2. The family consultant expressed concern that the mother has an external locus of control which may mean that it is a poor outcome in terms of her being able to reflect and learn to improve her own parenting.  She also expressed some concern about the mother’s fibromyalgia which flares up with stress.  In terms of the father, she expressed concerns about him lacking sufficient flexibility to facilitate the relationship between X and his mother due to his black and white approach, and certainly that was very apparent in his presentation in Court when giving his evidence.  What was also clear is that the father will comply with Court orders and take them fairly literally.

3. The family consultant observed that X’s disregulation may relate more to his being aware of the conflict and dislike that his parents feel for each other rather than because of spending time in the mother’s household during the holidays, and that given the psychological assessment of X, he may well be attuned to the emotional issues, but unable to express his emotions verbally.  She says that whilst it appears that the father is, effectively, emotionally illiterate and the mother emotionally disregulated, that this does not bode well for X learning how to effectively regulate his own emotions and manage his behaviour.

4. I agree with the family consultant’s assessment of the parents, and that was apparent from their presentations in Court.  Additionally, I think, and it is important for the father to realise this in particular, that any difficulty that X has on returning home from the father is not because he does not enjoy and have a warm relationship with his mother, and enjoys that time with his mother and B, but because of the difficulty in transitions for him, and the difficulties because of being so exposed to the conflict between his parents, and two very different parenting styles and households.

5. Particularly for X, who struggles with how to express his emotions and struggles with containing his behaviour, that transition between households is likely to be much more difficult for him than for other children, and that what the father needs to do, in particular, is to work on positively encouraging, and effectively giving X permission, to enjoy the time in his mother’s household.  I do not have the same concern about the mother with respect to being positive towards X and the time he spends in the father’s household.  The mother was readily able to identify the value that the father brings to X including their shared love of outdoor activities.

6. The family consultant recommends that the father seek and undertake parenting support in the form of education about emotional attunement and regulating strong emotions, and that Ms B also undergo counselling to assist her to deal with the consequences of her traumatic childhood experiences and also her own emotional regulation.  The father said he has engaged in some counselling, and has had three sessions so far, and the mother also has received treatment with respect to anxiety and depression.

7. It will be important for both parents to engage in the particular kind of support and interventions that the family consultant has identified.  With respect to the father, she identified Anglicare as being a possible service, and also courses called Tuning in to Kids, and Tuning in to Teens.  To the parents’ credit, they have both agreed to orders to seek that support.  The mother also seeks an order that the father attend anger management counselling, but I am not satisfied that the evidence justifies ordering the father to attend that type of course.

8. The mother’s solicitor cross-examined the family consultant about the father’s evident frustration during a telephone call with him about having to come in for the assessment. As the family consultant made clear, the father was frustrated because he did not understand what the assessment was about and the need for it as he thought the matter would simply be determined at a final hearing.  She did not agree with the suggestion that he was aggressive.  Whilst the mother raised some concerns in her affidavit, the father was not cross-examined about those issues.

9. I am not satisfied that he should be ordered to do another course above what he is already going to be undertaking.  The family consultant was asked about the mother’s proposal that in the event X remains living with his father that she have time with X every fourth weekend during school term.  Whilst initially she was supportive of that, the Court expressed a concern about the amount of travel that that would involve, and she then supported a proposal that X have every long weekend with his mother and the father supported that proposal.

10. I have touched on already many of the relevant factors that I must consider pursuant to Part VII of the Family Law Act. As the parties agree, and I certainly find that it is in X’s best interests that the parties share equal parental responsibility. I must consider, pursuant to section 65DAA, whether or not it is in X’s best interests for there to be an equal time arrangement. Neither party is seeking that and it would be impracticable given the distance between the parties. The distance also means that it is not possible for the parties to have substantial and significant time during the school week. Rather, realistically, it is looking at extensive holiday time and also some time during the weekends.

11. This is a case where the practicality of the distance and expense looms large for these parents, neither of whom are working, and the distance of four hours is a significant one.  Most importantly, for X to travel is not a concern during the school holidays, but would be a concern if it was alternate weekends.  I have some concerns about it once every four weekends.  One issue that is going to be important for X is if he wishes to participate in team sports and being involved in that activity.  It’s likely that this is something that he will enjoy, particularly given his love of outdoor activities, and given his high energy levels.

12. X expressed a preference to remain living with his father, and some preference to have less time with his mother during the school holidays, but the family consultant found that his expression was incongruent when he was saying that.  She also pointed out he was quite difficult to interview.  I do not place much weight on X’s comments about the households.  What I do think is of some significance is his desire not to change schools which is certainly understandable given his previous experiences and difficulties in settling in.

13. The issue about X’s schooling and the impact of a change in school is one of the most significant factors, probably the most significant factor in this case.  There is no issue that X enjoys good relationships with extended family members on both sides, including older half-siblings, and that the orders I am going to make will enable him to continue to have those relationships.  I do not have any concerns about either parent not taking the opportunity to participate in making decisions for the long-term welfare for X.  I also have no concerns about either parent not fulfilling their obligations to maintain X.

14. There is some issue about the parents’ capacity to provide particularly for X’s emotional needs, but both parents have agreed and will seek assistance in that respective area.  There are no current concerns with respect to either parent in terms of being able to provide for X’s physical and intellectual needs.  Whilst there has been some suggestion in the material of X being exposed to family violence in the past, this seems to be with respect to his older half-siblings and his mother.  They are no longer living in the household, and there is no suggestion of any current concern about family violence.

15. One of the issues of great importance in this case is the likely impact on X of any change to his circumstances.  I find that it would not be in X’s best interests to change his living arrangements again and have him shift back to his mother’s household.  I think that would be very unsettling for X.  It would be disruptive to his schooling, and something that I think he would have difficulty in adjusting to.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 28 October 2016