Charlton and Pearson

[2013] FCCA 999

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHARLTON & PEARSON [2013] FCCA 999

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged twenty two months – father lives in (omitted) currently – mother and child live in Adelaide – high degree of conflict between parties – father alleges mother intent on disrupting relationship between him and the child – mother alleges family violence – father currently commuting three weekends per month to Adelaide to spend time with child – time confined to daylight hours – father seeks overnight time – meaningful relationship – best interests.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR CHARLTON

Respondent: MS PEARSON

File Number: ADC 1081 of 2012

Judgment of: Judge Brown

Hearing date: 14 May 2013

Date of Last Submission: 14 May 2013

Delivered at: Adelaide

Delivered on: 14 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Berman SC

Solicitors for the Applicant: David Burrell & Co

Counsel for the Respondent: Ms Pyke QC

Solicitors for the Respondent: Priya Subramaniam

Counsel for the Independent Children’s Lawyer: Mr Boehm

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia

ORDERS

1. The oral application of the father to spend more time with the child is dismissed.

2. Further consideration of the matter is adjourned to 26 November 2013 at 10:00am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1081 of 2012

MR CHARLTON

Applicant

And

MS PEARSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing.  Given the controversy surrounding the matter and the fact that the matter is part heard, it is appropriate that the reasons be transcribed and released to the parties.

2. The matter of Charlton & Pearson comes before me.  It is a difficult and complicated matter.  The applicant in the proceedings is Mr Charlton.  Mr Charlton – and I say Mr Charlton advisedly – is a (omitted) by profession, who is currently employed at the (omitted). 

3. The respondent to the application, Ms Pearson, has, in the past, been employed as a (omitted).  The parties are the parents of a young child, X, who was born on (omitted) 2012.  Accordingly, in about two month’s time, X will be celebrating his second birthday. 

4. The parties are married to one another, but I will refer to them as “the father” and “the mother” respectively in these reasons for judgement on occasions when I do not refer to them specifically by name.

5. The proceedings are complicated, as I say.  They have been on foot since March 2012.  Accordingly, they commenced prior to X being one year of age.  X’s age is one of the more significant considerations in the case, as is the fact the father continues to reside and work in (omitted) and the mother and X are currently residing in Adelaide.  Adelaide and (omitted) are separated by a distance of around four hundred kilometres.

6. It is common ground between the parties that, initially, they went together to (omitted) as a family, which included X, when Mr Charlton took up his position as a (omitted) there.  However they separated very soon after that move – a matter of weeks rather than months. 

7. The circumstances of the parties’ separation are controversial in that essentially, it is Mr Charlton’s position that the respondent engineered a situation whereby she was able to remain in Adelaide, with X, in premises which the parties own in the city and which had been their home in Adelaide, prior to them relocating to (omitted). 

8. Ms Pearson’s position is that she was fleeing a violent and controlling relationship and the safest place for her and X was in the parties’ former home.  There are currently final proceedings before me which concern not only arrangements for X’s care but also property issues.  They have been vigorously contested.

9. The matter came before me very shortly after the parties separated.  As I recall, Mr Charlton was anxious to interact with X.  It was his position that, prior to the parties’ separation, he had been integrally involved in caring for X, as an infant.

10. As I say, it was his assertion that the respondent mother had manipulated a situation whereby his relationship with the child had been interrupted as a consequence of Ms Pearson remaining in Adelaide with X.  Initially, it was his position that the court should compel Ms Pearson, in some way, to return to (omitted). 

11. There was a hearing in regards to this difficult issue.  I published some reasons in respect to it.  But ultimately, I determined that the child’s best interests, particularly bearing in mind his tender years and my view that it was more probable than not that the mother had been the child’s primary carer, up to that stage, and certainly had been since the parties separated, dictated that the child should continue to live with the mother in Adelaide.  The question remained how, in these difficult and conflicted circumstances, X could have some form of relationship with his father.

12. It was and is Mr Charlton’s position that he is contractually bound to the (employer omitted) in (omitted) and cannot leave his position there.  In addition he asserts that he enjoys his position at the (omitted).  As such, he is not in a position to abandon his employment in (omitted). 

13. It would also be, I think, his evidence that it would not be easy for him to get a similar (omitted) position in the metropolitan area of Adelaide and if he is not in employment this would be financially disastrous, not only for him, but also Ms Pearson and X. 

14. So the dilemma confronting the court, when X was not yet one year of age, was how could the child maintain a meaningful level of relationship with his father, given the challenging geographical and logistical circumstances then prevailing.  These circumstances have not changed in the period since.

15. Given his occupation, Mr Charlton is relatively well resourced financially.  But obviously (omitted) remains remote from Adelaide and the only way for him to come regularly to Adelaide from (omitted) is by commercial aircraft.  There is not always a direct service between the two locations.  More often than not, it is necessary to fly to Melbourne first.

16. From the evidence I have received to date, the service is not particularly regular and it is, even for a person of some means, such as Mr Charlton, prohibitively expensive and logistically burdensome to fly from (omitted) to Melbourne and then from Melbourne to Adelaide.

17. So, in those difficult circumstances, when the matter first came on for adjudication and I should point out there was some delay in that because the matter was originally listed before another federal magistrate, who was obliged to disqualify himself because of some prior tangential involvement with the parties. 

18. Anyway, when the matter originally came on before me, on 14 May 2012, I determined that the best possible arrangement, in the difficult circumstances prevailing, was that X should spend three weekends out of four with his father, on the Saturday of that weekend from 10am until 2pm and on the Sunday of that weekend between 8am and 12pm.

19. At that stage, it was my view that this was the upper limit of what a child of X’s age was likely to be able to tolerate, in terms of being separated from his principle provider of care.  I recognise that Mr Charlton did not necessarily accept that this was the case, given his assertion of his prior extensive involvement in caring for X. 

20. I should also indicate that the other significant factual issue between the parties is that the mother resolutely refutes any suggestion that she has manipulated the situation or has attempted to engineer a situation whereby she is living in Adelaide with the child, away from Mr Charlton.  It is her evidence that the relationship between the parties was a difficult relationship.  She also denies that she was anything other than X’s primary carer, prior to the parties’ separation.

21. Ms Pearson would assert that there was a fundamental imbalance in the authority and power of the relationship between her and Mr Charlton.  Essentially, she would categorise Mr Charlton as a violent and coercive person and, as such, it is her position that she was fleeing a difficult and violent relationship in (omitted) and, accordingly, it was not in X’s best interests for her to be compelled to return there. 

22. The orders that were made on 14 May 2012 have been varied by agreement between the parties but difficulties remain in terms of coordinating any orders with flights from (omitted) to Adelaide.  In addition, at the present time, the parties are exchanging X at the (omitted) police station, in response to what remains a difficult relationship between them.

23. There are many issues arising in this case.  One of these issues relates to family violence.  The mother’s position, as I say, is that Mr Charlton is a violent and coercive person.  On the other hand, it is the father’s position that Ms Pearson has fabricated the allegations against him concerning violence because of her own emotionally needy and manipulative personality. 

24. The case also raises some cultural issues.  Mr Charlton is (omitted) by birth.  In his evidence, he has indicated that he is not a practicing (religion omitted), being (religion omitted) only by reason of his birth.  The main thrust of the matter is the difficult and conflicted relationship between the parties. 

25. Given those circumstances, I have ordered that X be independently represented in the proceedings.  Mr Boehm of counsel has been briefed by the Independent Children’s Lawyer in respect of this afternoon’s hearing.

26. He has also been briefed in respect of the final hearing of the parties’ competing applications, which has recently begun and occupied, I think around five days of hearing time.  Both the property and child aspect of the proceedings have been vigorously contested.  Mr Charlton has given his evidence and been extensively cross examined.  Ms Pearson’s part of the case has not yet begun. Regrettably, the time estimated for hearing the matter has proven to be woefully inadequate and the trial is part-heard. 

27. In conjunction with the final hearing, the parties have commissioned Ms C, a psychologist, to prepare a family assessment report in the matter.  She has made some recommendations in the case about future arrangements for X’s care, in her report dated 18 December 2012.

28. However Ms C has not yet given her oral evidence.  Accordingly her methodology and recommendations have not been subject to any scrutiny at all from either Mr Charlton, Ms Pearson, nor the Independent Children’s Lawyer.  Regrettably, the hearing has been delayed and it is rescheduled for November of this year.

29. That, in the life of a child of X’s age, is a significant period of time.  It is also a long time for Mr Charlton, who is concerned that his relationship with X is under threat.  In those circumstances, Mr Charlton has made an application to extend the time he spends with X.  These proceedings are concerned with the resolution of this issue. 

30. Given the parameters of Mr Charlton’s work commitments and given that he remains based in (omitted) and works Monday to Friday with a weekend on call every month or so, the only time available for him to spend time with the child is at weekends, it being impracticable for the mother and child to go to (omitted).  X goes to bed, as one would expect of a child of his age, between 7.00 and 7.30 at the moment.  Pursuant to the existing regime, he is returning to his mother’s care at about 6 o’clock on the Saturday of each of the weekends in question.

31. Accordingly, the only way the time can be extended is to link the time between Saturday and Sunday, so that there will be an overnight period of time on the weekends when Mr Charlton comes to Adelaide. 

32. Ultimately, in a formal sense, Ms Pearson does not oppose overnight time but it is her position that such time should occur when X is, at the very least, three years of age.  In addition, she is opposed to it occurring until there can be a completion of all the evidence in this case, particularly the expert evidence. 

33. Ms Pyke, on behalf of her client, describes the father’s proposal as the envelope being pushed in respect of X’s development, given he is not yet two years of age.  In a slightly different context, she talks of the prospect of this interim hearing process leapfrogging ahead of the final hearing process.

34. It is Ms Pyke’s submission that the evidence I have heard thus far in the case from Mr Charlton indicates – and this is my note of what Ms Pyke said – a fundamental lack of insight about the emotional and developmental needs of a child of X’s age. 

35. This submission has arisen because it is Mr Charlton’s case that the court will ultimately determine that Ms Pearson is intent on alienating the child permanently from him and, as such, the only reasonable option available to it is for the court to order the child to come into his care, so he can maintain a proper level of relationship with him.

36. Anyway, I am not deciding that particular issue at this stage.  I have not, as yet, heard any evidence whatsoever from Ms Pearson.  Needless to say it is her case that she is only concerned about X’s best interests. Anyway, the positions of the parties remain polarised indeed.

37. It remains the case that, notwithstanding the order for Mr Charlton to spend time with X was made on 14 May 2012, the circumstances surrounding the making of the order remain raw and very difficult, to such an extent that the parties are not as yet in a position to move away from exchanging the child in the foyer of a police station, where the police are readily to hand.

38. At this stage, it seems to me that the most significant issue in the case remains the developmental needs of X.  The fact remains that he is a child who is still of tender years, not being two years of age. 

39. It is invariably the case, in matters such as this, where the child concerned is very young and there is high conflict between the parents concerned, that issues of overnight time are very controversial.  I can understand why that is so. 

40. In a general sense, young children are prone to be more anxious at night time, when they are away from a person to whom they are closely attached.  Also, parents are nervous about night time, when their child is away from them, particularly if they do not have a good or trusting relationship with the other parent concerned.

41. From Mr Charlton’s perspective, he wants to spend as much time as possible with X and do as many things as possible with and for him, including, no doubt putting him to bed and getting him up in the morning.  The Family Law Act speaks of the benefits a child is likely to derive from having a meaningful level of relationship with a parent.  The thrust of Mr Charlton’s case is that the more time he spends with X, the more meaningful will be the relationship between the two.

42. Ms C is an experienced child psychologist, who writes many family reports for the court.  She saw X interact with both his mother and his father.  In that context, she provided some recommendations as what was likely to be the outcome best suited for him

43. So Ms C’s report, untested though it is, is likely to be the most useful source of evidence, at this stage, about the issue of overnight time, in the context of the parties’ difficult relationship. 

44. Mr Berman, who appears for Mr Charlton, takes me to Ms C’s report and particularly, her observations of the child interacting with each of his parents.  Ms C describes a happy and positive relationship between X and each of his parents.

45. In respect of Mr Charlton, Ms C described him readily approaching his father, who picked him up and hugged him.  Mr Charlton had toys with him and father and son played together with the toys.  A lot of toys were spread on the floor and Mr Charlton was affectionate towards his son and X accepted a kiss from his father.  She noted that there was eye contact between father and son and the two giggled along with one another. 

46. To her credit, the mother also reported to Ms C that X seemed to enjoy spending time with his father.  She did provide the rider that he often came back exhausted from a busy day with his father – I do not think there is anything sinister in that.  Again, to Ms Pearson’s credit, she did not seem to be unduly concerned about it.

47. So it seems clear that there is a viable relationship between X and his father and given their relationship with one another – father and son – clearly that paternal relationship is very significant, potentially to X, as he grows up in life. 

48. In terms of what she recommended, Ms C pointed out – and this is a significant thing for her to point out and it is important indeed – that the first three years of a child’s life are a highly vulnerable time because that is when a child is undergoing the most significant period of brain development.  In that sense, children, up to the age of three years, require a predictable routine and sensitive care.

49. So it was Ms C’s recommendation that X should continue to live with his mother, which is now a relatively longstanding regime. Further, Ms C said that, given the travel involved for the father, she supported him spending two or three weekend visits, on both Saturday and Sunday, each month, with X, essentially as per the current arrangement. 

50. Ms C was aware that the next step for X is to spend overnight time with his father.  For obvious reasons, Mr Charlton would prefer that that occur sooner rather than later.

51. Ms C’s view – and I acknowledge that her view is untested and it is now some months old and she has not revisited the family in any way whatsoever since her report was prepared – is that overnight time should be introduced when X turns three.  As previously indicated, Ms Pearson does not demur from this recommendation.

52. Ms C recognised that this was a cautious recommendation.  Although three is often used as a convenient demarcation point for children, in cases such as this, it is axiomatic, of course, that every child is different in his or her development and that every family has its own unique and idiosyncratic dynamic. 

53. Accordingly, it would be imprudent of me to adopt any prescriptive view as to when is the right or the wrong time, in a generic sense, to introduce a child to overnight time.  As to why Ms C described her recommendation as cautious, follows from the rider that Ms C placed upon it.

54. She said a child who is developing well and whose parents are communicating easily and frequently may manage an earlier start to overnight stays but this is not the situation for X on the basis of the assessment of the family made by Ms C. 

55. The positions of the parties remain polarised.  Their handover of X is still, I think, the evidence indicates, bedevilled by some irritations and controversies.  They are still utilising a police station.  To their mutual credit, they have been able to manage the moveable regime of three weekends out of four, which change because of Mr Charlton’s work schedule, more often than not.

56. The mother has been critical that Mr Charlton has missed some of his weekend.  In his defence, he has pointed to difficulties with the airlines and changes arising in his work commitments.  But on any view, this is not an easy parenting relationship the parties have with one another.

57. I do not think it can be said, on the evidence that is available to me, at the present time that the parties communicate easily.  It does, however, appear to be the case that X is developing well and he certainly seems to have a viable and positive relationship with his father, as I say.

58. In this, as in all cases to do with children, I must make orders that I think are in X’s best interests. In so doing, I must consider the long list of matters in section 60CC of the Act, particularly the primary considerations, the most relevant being, in this case, the benefit to X of having a meaningful relationship with both of his parents.

1. In terms of the additional considerations, I have to bear in mind the nature of the child’s relationship with each of his parents and particularly, his maturity.

2. I acknowledge that, for the reasons that I have given, X has a loving relationship with his father and thus far, the evidence indicates that it is a positive relationship and there is nothing to indicate that Mr Charlton cannot take appropriate care of X or that X is unhappy or stressed as a result of his interaction with his dad.

3. But at the end of the day, he remains a child of tender years and the practical, logistical difficulties of him spending time with his father remain extreme.  The mother’s position is that there should be no change to the current regime and it is her position, very simply, that the parties have no capacity to implement any change to the regime.

4. Mr Boehm is of the same view.  Having considered the matter, I am concerned that it would not be in X’s best interests to move to the overnight regime as sought by the father.  I am concerned that it will add yet more tension to the parties’ parenting relationship, which will reverberate with X.

5. I acknowledge that it is difficult, from Mr Charlton’s point of view, to travel such a long way to have what he regards as limited time with X.  I accept that he loves his son and wants to, for obvious reasons, interact with him as much as possible. 

6. I also accept the underpinning of his case is that, if he is able to engage with his son in an overnight setting, put him to bed, make his breakfast in the morning, tend to him in the night time, this is likely to add depth and texture to his relationship with his son and so render it more meaningful and beneficial to X.

7. But given what Ms C has said, given the tensions and difficulties in the parties’ relationship, with some regret and acknowledgement of the difficulty of the situation, for the reasons I have given, I do not think that that outcome advocated by Mr Charlton would be in X’s best interests at this stage.

8. So, for those reasons, I do not propose to make any changes to the existing regime.  Accordingly I will dismiss the father’s application.  A date has already been allocated for the resumption of the final hearing.

9. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:  20 May 2013