Conway and Laurie
[2014] FCCA 2200
•2 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONWAY & LAURIE | [2014] FCCA 2200 |
| Catchwords: FAMILY LAW – Parenting – older children estranged from parent. |
| Legislation: Family Law Act 1975 ss.60B, 60CC |
| Applicant: | MS CONWAY |
| Respondent: | MR LAURIE |
| File Number: | PAC 294 of 2010 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 5, 6, and 7 August 2014 |
| Date of Last Submission: | 7 August 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 2 October 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Bevan |
| For the Respondent: | In person |
| Solicitor for the Independent Children’s Lawyer: | Ms Hafey |
ORDERS
All prior parenting orders are discharged.
The mother is to have sole parental responsibility for X born (omitted) 1998.
X is to live with the mother.
X is to spend time with her father by agreement and arrangement with him.
The parties shall have equal shared parental responsibility for Y born (omitted) 2000.
Y shall live with the mother.
Y shall spend time with the father as follows:
(a)During school term time in each alternate week from after school Thursday to before school Monday commencing the first weekend of each school term;
(b)During school term time in each alternate week from after school Thursday to before school Friday commencing the second Thursday of each school term;
(c)For one half of each school holiday period commencing from Term 4 school holidays in 2014 being the second half in years ending in an even number and the first half in years ending in an odd number; and
(d)At such other times as agreed between Y and the father.
The mother shall forthwith authorise any school attend by X to provide to the father at his request and expense any information relating to X’s school attendance and performance and both parents are entitled to attend any school events at which parents are invited to attend.
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.
Remove all outstanding Applications and Responses from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Conway & Laurie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 294 of 2010
| MS CONWAY |
Applicant
And
| MR LAURIE |
Respondent
REASONS FOR JUDGMENT
Ms Conway (hereinafter the mother) and Mr Laurie (hereinafter the father) have two children, X aged 16 and Y aged 14.
The father’s relationship with X and Y became disrupted in late 2012. He is desperate to re-establish a meaningful relationship with X and Y.
He now recognises that the best way to have a meaningful relationship with X is for X to live with her mother and to spend time with him with such time to be by arrangement between him and X.
The mother and father are in dispute as to the best parenting arrangements for Y.
The mother seeks an order for sole parental responsibility of Y, that Y lives with her and that Y spends time with his father in accordance with his wishes.
The father seeks an order for sole parental responsibility of Y, that Y live with him and that Y spend defined time with his mother being alternate weekends and half school holidays.
Deciding what parenting orders are appropriate for Y are made more difficult by the parties’ inability to communicate with each other, by the parties’ total distrust of each other, and as a result of Y’s anxiety disorder which has a significant manifestation in his refusal to attend school.
On 17 March 2004 at the end of a contested hearing Federal Magistrate Scarlett (as he then was) made final parenting orders in the following terms:
1. All earlier parenting orders are discharged.
2. The children of the marriage X born (omitted) 1998 and Y born (omitted) 2000 are to live with the Respondent father as follows:
a. each week during the school term from 9.00am on Sunday with the exception of Mother’s Day until 6.00pm on Tuesday;
b. for four (4) hours on each of the children’s birthdays and on the father’s birthday if those days should fall on a day when the children are not otherwise living with the father;
c. for the first half of each school holiday period in each odd numbered year and the second half of each school holiday period in each even numbered year;
d. from 2.00pm on Christmas Day until 6.00pm on Boxing Day in 2004 and each alternate year thereafter, and from 9.00am on Christmas Eve until 2.00pm on Christmas Day in 2005 and each alternate year thereafter; and
e. at such other times as the parties agree.
3. The children are to live with the Applicant mother at all other times.
4. The parties are to consult with each other in relation to the long-term care, welfare and development of the children.
5. Each party is to be solely responsible for the day to day care, welfare and development of the children whilst they reside with that party.
6. For the purposes of Order 2(c), school holidays are deemed to commence on the first day after school term ends, and are deemed to end on the day before the children are required to attend school at the beginning of the school term. A pupil-free day is not a day when children are required to attend school.
7. The mother is to deliver the children to the father’s home at the commencement of his periods of residence with the children and the father is to return the children to the mother at her home at the conclusion of his periods of residence.
8. The parties are to authorise the principal of the school attended by the children to provide to each party copies of the children’s school reports, school newsletters, bulletins, information about school photographs and other material usually provided to parents of children attending the school.
9. Each party may attend any school function to which parent are usually invited.
10. The Application is removed from the Pending Cases List.
Until about September 2012 the parties were largely able to implement the orders made on 17 March 2004. In September 2012 the father began exploring the possibility of a reformulation of the parenting orders to provide for X and Y to live with each of the father and mother on an equal time basis.
By December 2012 the father’s time with X and Y was totally disrupted in that they were not spending time with him and were on occasions taken by the mother to police so that they could report that they did not wish to spend time with their father.
On 20 June 2013 the father, the mother, Y and X attended upon Ms G, Family Consultant, for the purposes of a Child Inclusive Conference. The memorandum from that conference became Exhibit ‘K’. In that memorandum Ms G identified:
Mr Laurie agreed to obtain assistance in attending upon Unifam (omitted) as a means by which to re-establish his relationship with the children.
Ms G identified the issues remaining in dispute as:
Ms Conway sought the children (aged 13 and 15) to live with her and spend time with Mr Laurie as per their wishes.
Mr Laurie sought for the children to ideally live in a “fifty/fifty” arrangement; however, he said that he was still considering his final proposal.
With respect to her interview with X at that time Ms G wrote:
X presented as a friendly, mature and articulate girl.
Ms G also wrote:
X stated that Ms Conway was good at “understanding things” and helping her and Y “work through things”.
She said that she thought that Ms Conway was “not very strict”, so sometimes things don’t get done. She said that Mr Laurie was good at encouraging her and Y to “give things a go” but he was not very good at understanding. She said that Mr Laurie “can’t do empathy” and said he tells her things that she did not want to know about and “says means stuff” about Ms Conway.
Ms G also wrote:
X said that she had “always been in the middle” of her parents conflict and that she had “learned to live with it”. She said that “ideally” she wanted to live with Ms Conway and spend time with Mr Laurie when she wanted to.
About X, Ms G wrote:
Y presented as a reserved but friendly and humorous boy. He said that he enjoyed playing hockey and he liked his school.
Both X and Y were recorded as wanting a third person present to facilitate a conversation with their father before their time with their father resumed.
The children and the mother and father did go to the Unifam program “Keeping Contact”. Eventually, their involvement with the program was terminated. It is not clear as to why that happened as there are no reports in evidence from that service.
On 14 May 2014 Ms G again interviewed the mother and father and the children and also interviewed the father’s partner Ms M. The change in Y in a little over twelve months was startling. In paragraph 41 of the Family Report which is Exhibit ‘Ms G wrote:
Y, age 14 years and two months, presented as shy and withdrawn. He was observed to hide his face in his jacket throughout the interview, avoid eye contact and was shaking his leg. Y provided limited answers to questions put to him and at times did not answer at all. At other times he shrugged in response to questions put to him.
Y by now was resistant to attending school.
He had consulted a psychiatrist Dr L who wrote a report on 15 November 2013 and this report is Exhibit ‘C’ to the Affidavit of the mother sworn 31 July 2014. The report is brief. The plan contained at the end of the report provided:
1. Given that current efforts at providing individual therapy is proving to be so difficult, I have recommended to Ms Conway that he (Y) be referred for Art Therapy, e.g. with Ms K at (omitted).
2. Until now I have resisted the urge to start psychotropics, but I am strongly considering starting him on Fluoxetine to target mood and anxiety symptoms.
3. I am referring Y to (omitted).
4. Ms Conway is considering whether changing schools will bypass the problems Y has had with attending the current school. It is not known whether school refusal will continue in the new environment.
5. At present I am doing family work with Ms Conway and the two children. A referral for Family Therapy is another option that we are considering.
Thereafter Y did attend (omitted) both as an inpatient and an outpatient.
Apart from a brief improvement after his involvement with (omitted) Y’s school attendance has not improved. Y spent two weeks being cared for by a family friend and she had Y attending school. Neither the father nor the mother have been able to replicate this feat.
Y now hardly attends school at all. When he does it is often not for a full day and on occasions he does not participate in all lessons.
Y is currently enrolled to attend year 8 at (omitted) High School.
In grade 6 Y sat the selective high school test and was offered a place in a selective high school which he did not take up.
The management of Y’s mental health issues is now undertaken in a team environment at (omitted) Community Health. He consults a social worker and a psychiatrist.
The mother has not engaged Y with the art therapy recommended by Dr L.
Y did commence on Fluoxetine by agreement with his current psychiatrist at Community Health (omitted) but is now being reviewed for a period without taking the medication.
After the release of the Family Report in May 2014 the father attended at the mother’s home and was able with Y’s agreement to spend time with him. Since then there have been about 15 occasions where Y has spent time with the father. X has also spent some time with the father since then.
Y had also sent an email to his father asking his father to attend at his hockey which the father has done.
The father works in his own business from home.
The father lives with his partner Ms M. They live at (omitted).
The mother lives on her own with the children at (omitted).
X now attends (omitted) High School. Her most recent school report is Exhibit ‘H’. Having regard to that report both parties agree that X is thriving at that High School and achieving impressive results.
The father is critical of the mother both as a parent and a person. He blames her for the deterioration in his relationship with the children. He is convinced that if Y does not live with him, that as soon as the oversight of the Court is removed the mother will prevent Y from having a relationship with him.
He believes that Y has a co-dependent relationship with the mother and will be unwilling to make a decision to have a relationship with him whilstever he lives with the mother.
The father says he was surprised by the parties’ separation in 2003.
He believes that the mother’s depressive illness prevents her from adequately parenting the children in all circumstances.
The mother finds the father to be confrontational, inflexible and obsessive.
Each of the mother and father agree that they cannot communicate with the other. Only recently have they re-established limited communication, via text message.
The father says that their inability to communicate predates Y birth.
In any event the Independent Children’s Lawyers submission that “the window for these parents to learn to co-parent has long closed”, is insightful.
The parents have tried without success to communicate, except recently by limited text messaging.
They have attended a Unifam program; they have attempted mediation on numerous occasions all without success. The Independent Children’s Lawyer is entirely correct in her submission.
Both parties have been in the past denigrative of the other in text messages and verbally.
Both blame and find fault with the other.
The task of this Court is not to determine who is at fault or who is to blame, but rather make parenting orders that are in the best interest of each of X and Y.
There is very little evidence available to the Court regarding Y's treatment at (omitted) or (omitted) Community Health. In 2009 Y consulted a psychologist Ms T presenting with bedwetting and tantrum issues. There is very little evidence available to the Court regarding Y’s treatment by Ms T.
Limited evidence about Y’s involvement with (omitted), Ms T and (omitted) Community Health Services does not hamper the decision making process.
Orders by Agreement
By consent there is to be an order that X live with her mother and spend time with her father as arranged between her and the father.
Issues
The task of the Court is to decide what order for parental responsibility is to apply to each of X and Y, to decide with which parent Y is to live and to decide what time Y is to spend with the parent with whom he does not live.
Law
In making orders relating to the issues the Court is to make orders that have as their paramount consideration the children’s best interest.
Parenting orders made are to be informed by the objects set out in section 60B of the Family Law Act.
In deciding what is in the children’s best interest the factors in section 60CC(2)(2a) and (3) are to be considered in light of the evidence.
In addition to being in the children’s best interest any parenting order made must also be reasonably practicable.
Relevant Chronology
(omitted) 1969
Father born
(omitted) 1971
Mother born
(omitted) 1995
Parties marry
(omitted) 1998
X born
(omitted) 2000
Y born
8 February 2003
Parties separate. The children and mother then leave the matrimonial home
17 March 2004
Final parenting orders made by Federal Magistrate Scarlett (as he then was)
2008
Father’s relationship with Ms M commences
2011
Parties divorced
September – December 2012
Father seeks to negotiate variation to existing parenting orders hoping to obtain equal time arrangement
5 April 2013
Father files application for contravention alleging contravention of orders made 17 March 2004
31 March 2014
Mother files Amended Initiating Application
26 May 2014
Family Report released
25 June 2014
Father files Amended Response
Documents relied on
Mother
The mother relied on her Affidavit sworn 31 July 2014 filed 1 August 2014.
Father
The father relied on his Affidavits sworn 30 July 2014 and 8 August 2013.
His partner Ms M swore an Affidavit on 30 July 2014.
The father’s personal friend Mr B swore an Affidavit on 24 July 2014.
Mr B was not required for cross examination and his Affidavit was read and his evidence is unchallenged.
The deponents of all other Affidavits were cross examined as was Ms G who wrote the Family Report.
Determination
In late 2012 each of X and Y had the benefit of a meaningful relationship with each of their parents. Since then they have really only had a relationship with their mother. Although recently Y has begun to spend some time with his father. Already Y is achieving a benefit from that. He is no longer home alone. He is engaging in activities with his father which stimulates him intellectually. Y also welcomes his father’s involvement with his hockey. More time together will give Y and the father more opportunity to engage and thereby add more meaning to their relationship.
Improved communication between the parents, although unlikely, would be protective for Y’s psychological health.
Ms Conway has acted as a “gate keeper” not involving Mr Laurie with Y’s treatment as much as she should. She has not, probably for reasons of her depression, implemented all Y’s treatment recommendations, especially those made by Dr L. That has been to Y’s detriment. Had she kept the father abreast of these recommendations he is likely to have been more pro-active in ensuring their implementation.
Y told Ms G that he wanted the assistance of a third party prior to recommencing his relationship with his father. Circumstances have now moved beyond that. He is now engaging with his father and spending some time with his father.
Y has also expressed a view that he wished to engage with his father on his own terms. Y because of his anxiety disorders becomes “stuck” in the decision making process. Consequently it is likely to be in Y best interest if a Court makes orders to set a “base line” minimum for Y and the father’s relationship and interactions.
Y and the father enjoy the activities they share together and Mr Laurie has a keen understanding of what Y enjoys and is willing to engage with him.
Y has a meaningful and important relationship with his mother which is more passive than that which he enjoys with his father.
Y has an important well established relationship with his sister X.
Y gets on well with his father’s partner Ms M.
The parents communicate poorly. They currently have a limited text message form of communication. They have not participated in making major decisions about Y for a long time. The mother has acted as a “gate keeper” and not always passed on information to the father with respect to treatment that she has sought for Y’s anxiety condition.
The mother has not been pro-active in promoting a relationship between Y and his father. She has been unwilling to overrule Y’s expression to her that he did not wish to spend time with his father likely to meet her own insecurities and also as a mechanism for avoiding badgering and conflict from the father.
Each of the parents have met their obligations to maintain Y.
Defined “base line” orders for Y to spend time with the father will increase the periods of time that he spends with his father and decrease the periods of time that he is cared for by his mother. The increase in time with his father will be of benefit Y in that he will be engaged in activities that he finds enjoyable. Additionally the father is more likely than the mother to be able to have Y attend at school.
There is no practical difficulty or expense associated with Y spending time with his father or communicating with him.
The mother perhaps due to her depression, but certainly because of her passivity, has not been able to meet Y’s intellectual needs by ensuring his attendance at school. For the same reasons she has been unable to implement all the recommendations of Dr L. The father has a greater capacity in these areas than the mother does. He is more uncompromising and less empathetic than the mother. His personality is more forceful.
Y is a boy of middle teenage years with anxiety issues which manifest in his non-attendance currently at school.
The mother is aware of Y’s need and has sought assistance for him but has displayed a poor attitude as a responsible parent in the implementation of the treatment plan; similarly her inability to encourage Y’s school attendance demonstrates a poor attitude.
The father’s past badgering of the mother and his inability to communicate with her sets a bad example for his children.
Each of the parents have been denigrative of the other.
The setting of a “base line” minimum for the time that Y is to spend with his father is more likely to result in time between Y and his father occurring. A “base line” minimum is also likely to reduce the need for further proceedings between the parties. Further parenting litigation is the last thing that would be in Y’s interest.
By specifying a block period for Y to spend with the father which includes within it some school days is likely to result in a higher probability of Y re-engaging with his school education than an order that related only to weekend and/or holiday periods. Having Y attend school and re-engage with his education is of critical importance to his wellbeing given his age, his intelligence and the consequences long term for him if he does not obtain an education.
A weekend period from after school Thursday to before school Monday on an alternate week basis with another overnight in the other week mid-week will provide significant opportunity for the father to engage with Y and to engage Y at school.
An equal time order at this point is not in Y’s best interest given the parental inability to communicate.
If in time Y brings about through his own decision making an equal time order then because it is Y’s decision it will lessen the need for parental communication to have improved significantly as Y will be taking more responsibility for himself.
For these reasons an alternate weekend period from after school Thursday to before school Monday and an alternate week period from after school Thursday to before school Friday is in Y’s best interest.
The parent’s homes are close enough to each other and to Y’s school to enable such a parenting arrangement to work practicably. The father works from home and this also assists in the practical implementation of the orders. He has the assistance of his partner Ms M who can also help and because she has a functioning relationship with Y this also increases the practicability of the orders.
For too long the mother has acted as a “gate keeper” of information relating to Y’s treatment and then not implementing all the recommendations. Despite the poor parental communication an order for equal shared parental responsibility will be necessary so as to enable the father to obtain information about Y’s treatment as he is more likely to implement all those recommendations than is the mother.
An order for equal shared parental responsibility will also enable the father to obtain information in his own right from source and overcome the restrictions that the poor parental communication creates.
In making these orders it is recognised that the making of a “base line” spend time with order is contrary to recommendation of the Family Report writer. A “base line” order will because of Y’s anxiety disorder remove decision making pressure from him and result in Y spending more time with his father. A circumstance that Y is likely to be accepting of but unlikely to have been able to initiate himself. Because it will benefit Y for the reasons expressed in this judgment it is an order that is made notwithstanding the Family Report writer’s recommendation.
The making of a “base line” spend time with order was not opposed in final submissions by the Independent Children’s Lawyer. Even if it had been it would have in any event still been in Y’s best interest for the reasons outlined.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 2 October 2014
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Family Law
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