Crimmins & Montagu (No 2)

[2017] FamCA 1035

FAMILY COURT OF AUSTRALIA

CRIMMINS & MONTAGU (NO. 2) [2017] FamCA 1035

FAMILY LAW – CHILDREN – Parenting arrangements for a young child – Where there has been an agreed arrangement in place – Where each parent is seeking an alteration of that arrangement – Where there is no evidence from a child psychologist – Where a meeting with the child psychologist is scheduled – Further determination to be made after that evidence is available.

Family Law Act 1975 (Cth)

APPLICANT: Ms Crimmins

RESPONDENT: Mr Montagu

FILE NUMBER: SYC 8485 of 2016

DATE DELIVERED: 9 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 6 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Clinch Long Woodbridge

Orders Pending Further Order

1.   The husband and the wife shall each have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the child of the marriage, E born on …2013 (“the child”), such major long term issues to include:-

a.   The child’s education (both current and future); and

b.   The child’s religious and cultural upbringing; and

c.   The child’s health; and

d.   The child’s names; and

e.   Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent;

And the parties shall consult with each other prior to making any such decision.

1. The husband and the wife to each have sole parental responsibility for making decisions concerning other aspects of care, welfare and development of the child on a day to day basis during the periods when the child is in their care respectively.

2. The child is to live with the husband as follows:

   Week 1 - From after day care on Tuesday until 4.30 p.m. on Thursday.

   Week 2 - From after day care Tuesday until day care on Wednesday and from after day care Friday until 5 p.m. Sunday.

3. Week 1, as specified in order 3 hereof, is to commence on 14 February 2017.

4. The husband is to deliver the child to the wife’s residence at the conclusion of his time with her on Thursday in week 1 and at the conclusion of his time with her on Sunday in week 2.

5. The child is to live with the wife at all times when she is not required to live with the husband pursuant to these orders.

6. The child shall live with the wife from 6.00 p.m. on the day preceding Mother’s Day until 6.00 p.m. on Mother’s Day.

7. Both parties are restrained from denigrating the other party, or any member of the other party’s family, in the presence or hearing of the child and they are to use their best endeavours to ensure that no other person denigrates the other party, or any member of the other party’s family, in the presence or hearing of the child.

8. Each party is restrained from sending emails and/or text messages to the other party unless such communication is in relation to:

   a.A delay or issue relating to changeover;

   b.The child’s clothing/toys;

   c.The child’s medical appointments and/or medications;

   d.Any party the child has been invited to, activities for the child and the like whilst in the other parent’s care;

   e.Urgent issues regarding the child’s care, welfare and development; or

   f.In the case of emergency.

10.Each party is to enrol in, and attend, a Post Separation Parenting, Triple P – Positive Parenting Program, or similar course with an accredited provider, such appointments to be made within 14 days of the making of this order.

11.The husband is to communicate with the child, when the child is in the wife’s care, once per day by telephone or facetime communication, such communication to be instigated by the husband at about 6.30 p.m. and each call to last for a maximum of 15 minutes.

12.The wife is to communicate with the child, when the child is in the husband’s care, once per day by telephone or facetime communication, such communication to be instigated by the wife at about 6.30 p.m. and each call to last for a maximum of 15 minutes.

13.The matter is listed for hearing before Registrar Campbell in the Registrar’s Duty List at 10 a.m. on 27 June 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crimmins & Montagu (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8485/2016

Ms Crimmins

Applicant

And

Mr Montagu

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for final and interim orders sought by the wife, Ms Crimmins. The orders sought in this determination are interim parenting orders.

2. The husband, Mr Montagu, opposes the orders sought by the wife and seeks other interim orders.

3. The wife filed an Initiating Application on 20 December 2016. The interim orders recited therein are the orders she seeks. The husband filed a Response to the wife’s Initiating Application on 3 January 2017 and he set out therein the interim orders he seeks.

4. The competing applications relate to the interim parenting arrangements for the parties’ child E, born in 2013. She has been living with each of the parties in a consensual arrangement following the husband vacating the parties’ residence on about 1 November 2016.

5. Since the physical separation of the parties the child has lived with the husband on Tuesday, Friday and Saturday nights (specific times are set out in the parties’ evidence) and the balance of the time with the wife. The parties have instituted electronic contact between the child and the parent she is not with, twice each day.

Background Facts

1. There is very little fact dispute between the parties.

2. Cohabitation commenced before marriage. Marriage occurred in 2012.

3. The husband is 47 years of age and employed as a manager. The wife is 45 years of age and has a casual job which varies in its frequency.

4. The child attends a childcare facility four days each week (not Thursday). The establishment is called M Pre-School.

5. The wife lives in the former matrimonial home at N Street, Suburb O and the husband lives at P Street, Suburb Q. The residences are reasonably close to each other.

6. The Court has ordered the parties to attend a meeting with a Family Consultant of this Court on 24 May 2017.

The issues

1. The wife provided evidence in an affidavit sworn by her on 20 December 2016. Her submission before this Court summarised some of the evidence in that affidavit, which it is said compels the making of parenting orders which reduce the time and days the child should spend living with the husband.

2. The wife seeks the husband’s time with the child be restricted to 2 nights per week. That would be a reduction of one night per week from the current consent arrangement. The husband proposes a continuation of the current 3 nights per week, together with one additional night per fortnight.

Evidence

1. The wife relied on an affidavit which consisted of 94 paragraphs and 19 pages of annexure. The husband responded with an affidavit of 156 paragraphs and 18 pages of annexure. Both affidavits are clearly too lengthy to enable an urgent hearing. However, the wife’s counsel helpfully identified that part of the affidavit which really identified the wife’s concern and supported, she contended, the making of the orders sought by her. Paragraphs 78 to 89 of the wife’s affidavit were specifically addressed.

2. The husband responded by directing the Court’s attention to those parts of the husband’s affidavit which it was said canvassed the wife’s identified concerns. In particular paragraphs 139 to 151 and 152 were drawn to the Court’s attention.

3. The wife tendered a letter from Dr R, Consultant Psychiatrist Emeritus. This letter, inter alia identified the wife’s treatment for postnatal depression.

4. In the wife’s affidavit, between paragraph 78 and 89 inclusive, provides evidence which sets out her complaint/concern about the impact upon the child and/or her of the current parenting arrangement:

   ·Threats made directly to her by the husband at the time of separation that “[the child] is going to live with me”; ‘I’m going to prove that you are an unfit mother”.

   ·The child has regressed since the shared care arrangement was commenced, in being able to dress herself (now cannot).

   ·The child has become increasingly “clingy”. She appears “anxious” when left by the wife at day care.

   ·The child seeks more of the wife’s attention at bed-time.

   ·The child has regressed with toilet training.

   ·The child is now afraid of the dark. She seeks close physical contact with the wife at bed-time.

   ·The child is resisting speaking to the husband on “facetime” for a daily contact.

5. The wife says the husband requires the wife to provide information to him about specific aspects of the child’s routine during times when he is having “facetime” with the child. She said the husband reprimands her for behaviour indirectly through his facetime conversation with the child. She said the husband has exhibited angry disposition on facetime when speaking with the child.

6. In submission the wife said through her counsel that the husband does make concessions in relation to a number of the wife’s stated complaints. Paragraphs 86, 98, 99, 107, 108, 110, 112, 115, 121 and 126 of the husband’s affidavit, the wife says, contain such concessions.

7. In submission, the wife said that the face to face change-overs were unpleasant for her as they involved information exchange in the presence of the child. The frequency of the facetime contact between the husband and the child was also stressful for the wife and, she claimed, the child as well.

8. The wife submitted the Court ought conclude the husband acts, and has acted, in an angry manner to the wife in the presence of the child and otherwise.

9. The wife seeks one occasion only per day for facetime contact between the child and the husband. The wife agreed that orders should be made as sought in paragraphs 4, 5 and 6 of the Interim Orders sought by the husband. Further, the Court was informed the parties agreed an order should be made about the child spending Mother’s Day with the wife as proposed by the husband in paragraph 2.1 of his proposed Interim Orders.

10. The wife relied upon a report provided by Dr R. After providing a history of the wife’s illness and treatment, Dr R then answered specific questions directed to him. He said the wife is in remission from postnatal depression. The prognosis for recovery is good. The report states that the wife is quite capable of attending to the child’s physical and emotional needs at this time.

11. The husband in his affidavit sets out a history of his significant involvement in the day to day care of the child. He provides evidence of his observations of the wife after the birth of the child and the impact upon her actions and reactions whilst suffering postnatal depression. He states his observations of occurrences of lack of proper care of the child by the wife prior to separation.

12. The husband discounts the wife’s raised concerns about aspects of his interaction with the wife and with the child.

13. By way of establishing the arrangement for the child are absolutely appropriate and that both he and the wife are capable of co-operating in a sensitive and positive manner for the sake of the child, the husband sets out at paragraph 139 and following how the parents dealt with the requirement for the child to have her adenoids removed in January this year. If accurately recorded, the events surrounding that operation demonstrate a high level of co-operation and focus on the child’s needs on that occasion.

Submissions

1. The wife in her written submission argued the current negotiated arrangement for the child is having an adverse impact upon the child. The manifestation of the adverse effect of the arrangement is regression in different aspects of her development (self-dressing, self-security), interrupted sleep and fear of the dark (less than scotophobia).

2. In her submission the wife points to the husband being verbally abusive to his family and her during their cohabitation. However, the wife agreed to the current arrangements for the care of the child between the parties well-armed with that knowledge. The wife provided evidence that the agreement for post separation care of the child was crafted amid threats made to her by the husband that she would lose all contact with the child unless she agreed to his terms.

3. The wife’s submission suggests that the current arrangement is not appropriate for the child, given her age and developmental stage. She says an arrangement which would have the child spending four nights a fortnight with her father is a better match for the child’s current circumstances and best interests.

4. The husband in his written submission claims to be the adult to whom the child is primarily attached. The inference arising from that assertion is that the child needs to have extensive time with him in order for her to feel secure.

Conclusion

1. This case comes before the Court requiring an urgent determination in circumstances where there is no available evidence from a child psychologist or other appropriate professional to assist the Court in relation to this child’s particular needs and each parent’s capacity to properly care for the child. The parties were advised of the Court ordering their attendance upon a Family Consultant for the purpose of the preparation of a memorandum by the Family Consultant which might assist the court in a determination as sought here. The appointment is scheduled for 24 May 2017.

2. In cases such as this the Court can only, in the absence of acceptable evidence urging some other outcome, move cautiously relying on experience gathered from the determination of parenting cases over many years.

3. In this case, the Court is alerted to a potential adverse outcome for the child because of her age. The Court’s experience is that parents of children of the child’s age commonly report observations of the impact upon the children of a parental separation, which the wife in this case has set out in her affidavit and specified in these reasons. The Court has the experience of hearing evidence from child psychologists and other witnesses with specialist qualification relating to a child’s development which urges predominantly the child should reside overnight with the primary carer and spend frequent time with the other parent. However, such experts are quick to emphasise each child is an individual and has had a unique experience of development to the point where they are seen by the expert.

4. There are aspects of the life of the child to this point which have been highlighted by the undisputed facts in this case. Some of those facts are as follows: the child has been attending day care for four days each week since August 2014. The wife has suffered significant episodes of postnatal depression.

5. The impact of the above circumstances means that it is not possible to reasonably predict how the child is attached (if at all) to each of her parents. Both parents present themselves as the traditional primary carer for the child.

6. As a consequence of the above the Court must move with caution. A change to the current care arrangements for the child as sought by the wife may be deleterious to her.

7. Since the physical separation in November 2016 at least, the child has been spending more nights living with her mother than her father. The wife resides in the residence which the child would be reasonably expected to see as her home at the date of separation and now. Six nights per fortnight away from the traditional home and primary caregiver (where there is no issue which parent that is) is not uncommonly viewed by judges of this Court as too disruptive and potentially damaging to the emotional/psychological development of a child of the child’s age. There will be a delay of nearly 16 weeks before the matter can be considered by a specialist Family Consultant of this Court and another six to eight weeks before the matter will be before a Registrar for determination.

8. I conclude that there is more likely to be a benefit flowing to the child by the Court making an order which makes a slight change in the number of nights the child spends away from the former matrimonial home and the wife than if the Court either makes no change to the current arrangements or makes an order for the time the husband seeks in his orders.

9. There are some practical matters to consider about the parties work commitments and the child’s attendance at day care. The child does not attend day care on Thursday and therefore one of the parents has to take responsibility for her supervision on that day each week. Further, the current arrangement is such that the child is with the husband each weekend. The wife therefore has no weekend time with the child. The husband says he is able to adjust his work schedule to accommodate any arrangement for the care of the child.

10. The parties have agreed to the making of orders which are contained in paragraphs 4, 5 and 6 of the husband’s interim orders sought. They have also agreed to an order which would see the child spend Mother’s Day with the wife.

11. The wife seeks that the number of daily electronic contacts between the child and the other parent be reduced from two occasions as currently undertaken to one occasion at 6.30 p.m. each evening for about 10-15 minutes. The wife’s evidence is that the requirement to have the child participate in the communication with the husband is stressful at times for the child. I conclude that given the amount of time the child will spend with the husband pursuant to the orders I will make it will be sufficient if there is one electronic session per day with each parent as the wife seeks.

12. I propose to make an order which will see each parent having an opportunity to spend Thursday with the child on a fortnightly basis. I propose that on the husband’s day he deliver the child to the wife at 4.30 p.m. on that day.

13. The parties each informed the Court that the further hearing of the interim parenting application could be heard by a Registrar. I will so order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 9 February 2017

Associate: 

Date:  9 February 2017