DARBY & GERWIG

[2018] FCCA 1742

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARBY & GERWIG [2018] FCCA 1742

Catchwords:
FAMILY LAW – Parenting – where there is a high degree of hostility – where there are allegations of illicit drug use – where there is alleged family violence – where the children are well cared for – where the parents have the capacity to provide for the needs of the children – where the parents demonstrate devotion to the welfare of the children – shared care arrangement.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS DARBY

Respondent: MR GERWIG

File Number: DNC 39 of 2017

Judgment of: Judge Young

Hearing dates: 7 & 8 June 2018

Date of Last Submission: 8 June 2018

Delivered at: Darwin

Delivered on: 12 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withanlls Lawyers

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

IT IS ORDERED

1. That the parties have equal shared parental responsibility for [X] born 2011 and [Y] born 2013 (“the children”).

2. That the parents will make a genuine effort to come to a joint decision about all major long term decisions, including:

   (a)The children’s education;

   (b)The children’s health;

   (c)Any change to the children’s living arrangements.

3. In the event the parties cannot come to a joint decision about a major long term issue they will do all things necessary to participate in Family Dispute Resolution with a person authorised under Section 10G of the Family Law Act.

4. That the children live with the parties during school terms equally as agreed and in default of agreement as follows:

   (a)In week one (1) from 8.00am Monday to 8.00am Wednesday with the Father and from 8.00am Wednesday to 8.00am the following Monday with the Mother and in each alternate week thereafter;

   (b)In week two (2) from 8.00am Monday to 8.00am Wednesday with the Father and from 8.00am Wednesday to 8.00am Friday with the Mother; and from 8.00am Friday to 8.00am Monday with the Father and in each alternate week thereafter.

5. That the children spend time with the parties during school holidays as agreed between the parties in writing and failing agreement as follows:

   (a)With the father for the first half and with the mother in the second half of the school holidays in odd numbered years and vice versa in even numbered years. 

   (b)In the event that either parent is not able to care for the children personally (if, for example he or she is continuing to work) during the holiday time set out in Order 5(a) the arrangements set out in Order 4 shall continue.

6. To the extent necessary, the time that the children are to spend with the parties under Orders 4 and 5 is suspended, so that the children shall spend time with each parent during days of significance as agreed between the parties in writing and failing agreement as follows:

   (a)With the Mother on Mother’s Day from 8.00am to 5.00pm;

   (b)With the Father on Father’s Day from 8.00am to 5.00pm;

   (c)With the Mother for Easter in even number years and with the Father for Easter in odd numbered years being from after school Easter Thursday to before school the following Tuesday;

   (d)In the event the parties are in the same geographic location commencing in 2018 and every even year thereafter, the children are to spend Christmas with the Mother from 10am Christmas Eve until 12pm Christmas Day, with the Father spending time with the children from 12pm Christmas Day until 12pm on Boxing Day. These arrangements are to alternate between the parents for 2019 and each odd numbered year thereafter.

   (e)On the parents’ birthdays as agreed between the parents but failing agreement for not less than three (3) hours;

   (f)On the children’s birthday, with the parent with whom the children are not staying on their birthday night to spend the following time with the children;

   (i)For 2 hours afterschool if the birthday falls on a school day;

   (ii)From 1.00 pm to 6.00 pm on non-school days

   (g)For the purposes of this order, the parent spending time with the children is to collect and drop off the children at the start and end of their time with the children;

   (h)That if a public holiday falls on a Monday, the parent who is due to have the children on the Sunday shall have the children on the Monday, and return them to school on the Tuesday; and

   (i)That if a public holiday falls on a Friday, the parent who is due to have the children on the Saturday shall have the children on the Friday and collect them after school on the Thursday.

7. That except as otherwise provided for in these orders all changeovers shall occur as follows:

   (a)At commencement of time spent if a school day at school;

   (b)On a school day (excluding Fridays) the Mother may elect to have the children spend time with her from after school until 5.00pm at the Mother’s residence unless the father is available personally to collect the children from school. If the father will collect the children personally from school he is to notify the mother a reasonable time in advance by e-mail. IT IS NOTED that the intention of this order is to avoid the children spending time at after-school care if the mother is available to care for them personally and she wishes to do so.

   (c)In the event that the children spend time with the mother after school pursuant to Order 7(b) the father changeover is to take place at the kerbside of the mother’s home at 5.00pm.

8. The mother is to ensure that her partner, Mr F, shall not be present outside the home when the children are exchanged by the Father at the Mother’s residence.

9. That the parents communicate with the children by facetime, skype or telephone at all reasonable times and in default of agreement on 2 occasions each week being each Friday and each Sunday between 6pm and 8pm and at any other time the children may request further communication.

10. That the parent with whom the children are not staying with shall instigate the communication and the parent with whom the children are staying with shall facilitate the communication.  In the event of a missed communication the parent with whom the children are staying with shall ensure communication subsequently occurs that evening between the children and the parent with whom the children are not staying.

11. That either parent may take the children on an interstate or international holiday provided the travelling parent gives the non-travelling parent:

    (a)Notice as soon as practical and no more than 48 hours after booking and where possible not less than 14 days’ written notice of his/her intention to travel interstate with the children, and 21 days’ notice of his/her intention to travel internationally with the children.

    (b)The holiday travel must not interfere with the time the children are to spend with the non-travelling parent, unless agreed between the parties.

    (c)A travel itinerary and contact details (accommodation name, location and a telephone number) for the children while they are away; and

    (d)They take all reasonable steps to facilitate the children having phone of Skype or equivalent video communication at least twice per week during the period/s of travel.

12. That the parties will do all things and sign all documents necessary to obtain an Australian passport for each of the children within 30 days of a request by either party and that, if either parent does not sign the passport applications for the children within 30 days, then these orders will provide sufficient authority such that the Registrar of the Federal Circuit Court of Australia is authorised to sign the passport application on either parent’s behalf.

13. That the children’s passports must be given to the travelling parent within 10 days of the travelling parents written request.

14. That the parties be and are hereby restrained by injunction from the following:

    (a)Denigrating the other in the presence or hearing of the children and must do all things reasonably necessary to ensure that no other person denigrates the other parent in the presence or hearing of the Children, including removing the children from the presence of that person; and

    (b)Placing photographs or information in relation to the children on public social (or other) media unless prior to posting obtaining the other parties written consent.

15. Forthwith the Father shall either provide to the Mother:

    (a)A copy of the Father’s private health care card naming the children; or

    (b)Cease private health cover of the children thereby enabling the Mother to insure the children on her private health.

16. That both parties shall facilitate the children attending French lessons and ballet and any other agreed extracurricular activities whilst the children are spending time with them and further the parties shall engage in genuine consultation before enrolling the children in extracurricular activities.

17. That both parents shall keep each other informed of any illness or accident of the children as soon as is reasonably practicable, including if any of the children are absent from school, together with the names and contact details of the treating medical practitioner.

18. That each party is hereby authorised to obtain from the children’s school/s all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

19. That each party keep the other advised as to his and her residential address, land line telephone number, mobile emergency telephone numbers and email address and advise the other of any changes to such details 7 days after to such changes.

20. If one of the parents causes the children’s passports to be lost, that parent will pay for the replacement.

21. That the father will retain the children’s Australian passports and the mother will retain the children’s Swiss passports.

22. That both parents are entitled to all appointments and events for the children, including but not limited to medical appointments, health or welfare related appointments, education and extra-curricular events which relate to the children and both parents are to keep one another informed of such events. The parents may communicate with one another on these occasions provided it is in a respectful manner and only in relation to the children.

23. That both parents are entitled to attend school or extracurricular events which relate to the children and both parents are to keep one another informed of such events.

24. That the parents communicate by email only in relation to matters concerning the children and in the event of a medical emergency, either parent may communicate with the other parent by telephone.

25. That within 28 days, both parties shall enrol in a “parenting orders program” or like course, and show evidence of that enrolment to the other party.

26. That in the next 12 months, the father shall complete a “respectful relationships” or like course, and show evidence of completion of that course to the other party. 

27. That in the next 12 months, the mother shall complete a “respectful relationships” or like course, and show evidence of completion of that course to the other party. 

28. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of 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.

NOTATIONS:

A.      The parent who has the care of the children on the morning of the first day of school shall be responsible for arranging a school uniform, books, stationary and shoes for the children.

B.      The mid-point day will be the mid-point day between the last day of school term and the first day of the next school term.

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 the 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 39 of 2017

MS DARBY

Applicant

And

MR GERWIG

Respondent

REASONS FOR JUDGMENT

Ex - Tempore

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 is a parenting matter about two children, [X] who is seven and [Y] who is four.  The parties separated in 2014 but lived together under one roof until about mid‑2015.  Since separation the parties have adopted a 50/50 shared care arrangement on a two or three day rotation.  Both parties apparently agree that the present arrangement for differing reasons is no longer appropriate.

3. The mother’s proposal is for a change to a more conventional arrangement where the children spend five nights out of 14 with the father, alternate weekends, plus two nights during the intervening week.  The father seeks to maintain the existing equal time arrangement but on a different basis.  He says that there ought to be a shared care arrangement on a two week basis where the children spend no more than five nights with one parent.

4. Both parties have re‑partnered.  The mother and Mr F have a child, [C], who is about seven months old.  The mother is intending to stay at home for the foreseeable future caring for [C].  The father is employed full‑time but says he has some flexibility including the ability to knock off work early on a Friday afternoon every second Friday.

5. Both children and well and there are no particular complaints about the welfare of the children.  [X] is doing well at School A, as is apparent from her school reports, and despite some criticisms by the mother of the father’s inability to have the child attend school regularly, her attendance reports appear to me at least to be unexceptional.  And there are no concerns about [Y].  The father annexed a report from his pre‑school which suggested there were no concerns about him at pre‑school.

6. The proposals of the parents are not that different:  five nights on the part of the mother and seven nights on the part of the father.  However, it is clear that there is a good deal of hostility between the parents.  The hostility appears to have its source in unresolved relationship issues.

7. I was not particularly impressed by the credibility of either parent.  The mother took each question in cross‑examination as an opportunity to express her hostility to the father, whether or not her answers were particularly responsive to the question.  She was unwilling to say anything that might appear favourable to him.

8. The father demonstrated a lack of candour in some of his evidence.  His trial affidavit denied, in effect, any use of illicit drugs at any relevant time, that is, during the relationship or after separation.  In response to some direct questions from me, he conceded that he had used a range of illicit drugs during the relationship and after separation:  cannabis, cocaine, ecstasy, and prior to that in his youth, amphetamines.

9. This was of significance because the mother made an allegation that she had discovered what she said was MDMA in the family home around about the time of separation or just before.  She said that she identified this substance as MDMA after taking a photograph of it, on her phone I assume, and sending it to, I think she said, her brother.  I am not satisfied that what she found was MDMA.  I am not entirely sure what she found.  There is no expert evidence about the matter and she professed to be unfamiliar with the substance herself.

10. Nevertheless, regardless of what, if anything, the mother did find, she asserted that she had observed the father to behave erratically at different times and she suggested that illicit drug use may be an explanation.

11. While I am satisfied that the father showed a lack of candour in his evidence about his drug use, I am not satisfied that he continues to use illicit drugs.  His partner, Ms S, was cross‑examined on this subject and she said she disapproved of the use of illicit drugs, although conceding that she had, on one occasion in the past couple of years, used ecstasy at a music concert with the father.  Apart from this, she said that she had not used illicit drugs and did not approve of the use.  She was not cross‑examined to the contrary and I generally considered her to be credible on this issue.

12. The father underwent a hair follicle test earlier in this year which proved negative for all tested drugs.  There was some criticism made of the fact that a quite short sample of hair was taken of no more than a couple of centimetres, so the drug use history, so to speak, was not extensive, but in any event it was negative, and there was another occasion when the father undertook a urine test which was also negative for drugs.  In short, there is no evidence that the father has any continuing use of illicit drugs.

13. Both parties alleged that there have been instances of family violence.  I do not feel I can make any definite findings about this issue.  It appears that if there was some physical violence between the parties it was during the marriage and what the family consultant appears to have considered was situational couple violence rather than controlling and coercive.

14. The mother also alleged that the father had used denigrating and demeaning language to her during the relationship and after separation.  I am satisfied that this has occurred on occasion and there was an SMS message in evidence which showed the father using belligerent and provocative language.  However, the date of that SMS message was not in evidence, so I am not sure whether that is a recent example or from some time ago.

15. There was what appears to have been a peak in conflict between the parties in December 2017 and January 2018 where there was conflict, primarily verbal as far as I can see, between the father and Mr F, the mother’s partner, resulting in mutual domestic violence orders made in the Local Court earlier this year.

16. The partners of both of these parties gave evidence and were cross‑examined.  They appeared to me to be calm and relatively objective about the situation.  I am satisfied that both parties, however, have behaved badly toward each other at times and I suspect, particularly in the case of the father, badly towards Mr F at times.  The father expressed regret about this conflict in cross‑examination and said that he had hoped that there would at least some, if not reconciliation, acceptance, particularly of Mr F.  He suggested a mediation may help at some point.  I do not propose to make any orders about that but I do accept that the father’s regret about the high level of conflict, to which he has made a significant contribution, is genuine.

17. The most useful evidence in the trial, in my view, was that of the family consultant who observed that both children have a strong relationship with each parent.  She observed that both children appeared to be doing well in the present equal time arrangement.  [X] expressed a wish for the equal time arrangement to continue, notwithstanding the fact that [X] is only seven and her wishes are given a weight that is appropriate to her age.  I am satisfied that the fact that she has told the family consultant that she is, in substance, content with the present arrangement, is a good sign.

1. The mother says that the present level of conflict between the parties is unacceptable and damaging to the children.  She gives some instances of conflict:  delay in the father making arrangements for a second private health insurance card to be given to her so that she can make claims on the father’s private health insurance for the children, disagreement about orthotics for [X]’s shoes, delay in arranging for the repair of [X]’s school shorts and a failure to keep up [X]’s (omitted sport) training.

2. While I think that some aspects of the mother’s complaints are probably justified and I think the father has at times been difficult and obstinate, I also think that some of the explanations he gave for these matters had some substance and I consider on balance that while there was a peak of conflict in December of 2017 and January of 2018, particularly between the father and Mr F, I consider that the mother’s evidence tended to exaggerate the level of conflict.

3. The family consultant said at paragraphs 94, 95 and 96 as follows:

   It is apparent that these parents have endured a mutually challenging and tumultuous period of time pre and post‑separation and whilst it seems that they attempted to forge a co‑parenting relationship, their efforts appear to have been undermined by rising conflict and increasingly fraught communication.

   To the parents’ credit, it appears that the children have been shielded to a large extent from their conflict and it is apparent that both parties have made conscious efforts to avoid drawing the children into the hostilities.  This is a characteristic of sensitive and insightful parenting.  As well, the parents adopted a parenting arrangement post‑separation that served their children’s best interests at the time, even though it was challenging for the parents.  This arrangement included frequent changeovers, regular access to both parents and regular communication between the parents.

   It takes much effort and goodwill between parents for such an arrangement to work and demonstrates that these parents have the capacity to negotiate and be flexible for the sake of their children’s interests.  It appears that on the whole, the children have been well cared for in the respective homes of their parents.

4. I accept that those observations are accurate.  The family consultant went on to make a recommendation for the children spending equal time with each parent but on a three week cycle.  Both parents gave evidence that they did not consider that practicable and have rejected it.  I accept the reasons for their rejection of that proposal.  I think over the long term it is likely to be unwieldy and probably inconvenient.

5. In deciding a parenting matter, a court is required to follow the legislative pathway set out in part 7 of the Family Law Act 1975. I will turn to section 60CC. In determining the best interests of children, the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents, and secondly the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. I am satisfied that although there was evidence in January this year of some unpleasant words exchanged between Mr F and the father, where the children may have been present, that part from that instance, I am satisfied that the children have not been exposed to abuse, neglect or family violence.

7. Part (b) of section 60CC(2) is not relevant in this case. The additional considerations in section 60CC(3) are obviously relevant but considering that the disagreement between the parties is substantially about whether the children should spend five nights a fortnight with the father or seven nights with the father, it is implicit in that position that the mother concedes that the father is capable of caring for the children well, and indeed she conceded as much to the family consultant in the family report. Similarly, the father’s position implicitly concedes that the children are well cared for when they are in the mother’s care.

8. In relation to item (a), I have referred briefly to some views expressed by [X], but given her age, I attach not great weight to that.  Item (b), the nature of the relationship of the children with their parents, it is clear that both children have a very strong relationship with each of their parents.  Item (c) does not appear to be relevant, that is, the extent to which each of the child’s parents have taken or failed to take the opportunity to participate in long term decision making, spending time with the children and communicating.  Both parents have sought every opportunity to do that or taken every opportunity when it is available.  Item (ca) maintenance.  It is perhaps surprising but only recently did the mother apply for a child support assessment and there is no evidence in relation to that issue beyond that.

9. Item (d), the likely effect of any change in the children’s circumstances.  The orders I propose to make will see some change in their circumstances, primarily a change from the two night/three night rotation that the children are subjected to at the moment, to a longer term rotation which I think is appropriate given the children are getting older and [Y] will start school probably at the beginning of next year.

10. Item (e), the practical difficulty and expense of spending time with and communicating with each parent is not relevant.  There have been no difficulties about that.  Item (f), the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs.  I am satisfied both parents have the capacity to do that.  Item (g) I do not propose to say anything about that.  Item (h), the children are not Aboriginal or Torres Strait Islander children.

11. Item (i), the attitude to the child or the children and the responsibilities of parenthood demonstrated by each of the child’s parents.  I have said something about that.  While I consider that some aspects of the behaviour of both parents merits criticism, primarily because of, as I have said, unresolved hostility or unresolved issues arising out of their relationship, the fact, as the family consultant observed, that despite their feelings towards each other, both parents have managed, it would appear, to shield the children from the conflict reflects, in my view, very well on them and suggests to me and indeed I am satisfied that both parents are devoted to their children and are very focused on their children and their children’s welfare.

12. I would hope that as this matter settles down and time goes on, that both parents will reflect on what has happened between them and realise that if such a level of conflict or hostility continues into the future, it may well be damaging to the children, but I think on balance that I feel optimistic that given what I consider to be intelligence and sensitivity demonstrated largely by both parents, that that will be avoided.

13. Item (j), any family violence involving the children or a member of the children’s family.  There are mutual domestic violence orders as between the father and Mr F on the one hand, and Mr F and the mother on the other hand, and I am satisfied that those orders were appropriate.  And the inferences I draw from them under item (k) are, as I say, that the orders between the adults are appropriate, necessary, and should remain in place at least for the time being.  There were no findings adduced into evidence by the Local Court about these issues apart from the making of the order.  Items (l) and (m), I do not propose to make any further comment about those.

14. I propose to make orders largely as set out in the father’s proposal, but I also propose to make orders, as I indicated during the trial, that after school if the father is not available and the mother is willing to do this, that she may elect to have the children on any school day in her care until 5.00 pm, and the children are to be collected from the kerbside by the father from outside the mother’s home.

15. There should be an order that that will be the usual arrangement and, of course, Mr F, as is required by the existing order, is not to be outside the house at the time of changeover.

16. In relation to the holidays, the proposal I will make, and this is on the assumption that the mother is likely to be at home rather than working, and the father will be at work, in all probability, apart from time when he takes annual leave, I propose to make orders that if the father is unable to care for the children during the day, that is, he is not on annual leave, of which he has four weeks each year ordinarily, then the term time arrangement is to remain in place.  As I understand is the case, if the father takes additional leave and I understand he is able to purchase, if that is the right word, additional leave from his employer up to two weeks a year, that is six weeks, if he provides 14 days notice to the mother that he will be able to care for the children during the holidays, then the children are to spend that time with their father.  So the intention is that of the 12 weeks holiday, the children would spend four weeks of the holidays with their father and if the father gives appropriate notice and he is available, then the children are to spend six weeks of the holiday time with the father.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 29 June 2018