Davidson & Calder

[2021] FamCA 448

FAMILY COURT OF AUSTRALIA

Davidson & Calder [2021] FamCA 448

File number(s):	CAC 335 of 2021
Judgment of:	GILL J
Date of judgment:	25 June 2021
Catchwords:	FAMILY LAW – appointment of a single expert – application for equal shared time – application for injunction to prevent the respondent from coming within 500 metres of the applicant’s residence – application for family therapy.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:
Number of paragraphs:	25
Date of hearing:	25 June 2021
Place:	Canberra
Counsel for the Applicant:	Mr Hogg
Solicitor for the Applicant:	Orman Solicitors
Counsel for the Respondent:	Mr Harper
Solicitor for the Respondent:	Dobinson Davy Clifford Simpson

ORDERS

CAC 335 of 2021

BETWEEN:

MS DAVIDSON

Applicant

AND:

MR CALDER

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	25 JUNE 2021

THE COURT ORDERS THAT:

1.I discharge order 3 of the orders made on 1 June 2021 which deals with the time that the father will spend with the children. 

2.I order that the children live with the mother and spend time with the father as detailed below: 

(a)During the current school holiday period and thereafter during school terms on an alternate week basis as follows:

(i)In week one from Wednesday after school, or 3 pm if not a school day, until Friday morning before school, or 9 am if not a school day;

(ii)In week two from Thursday after school, or 3 pm if Thursday is not a school day, until before school on Monday, or 9 am if Monday is not a school day, save that if the Monday is not a school day during term time then until before school Tuesday.

(b)Save for the current school holiday periods, during the school holidays the children live with father as follows, and at all other times with the mother:

(i)Commencing with the term three school holidays 2021, one half of all school holiday periods and unless otherwise agreed:

A.The second half of all school holiday periods in 2021 and in each odd numbered year thereafter; and

B.The first half of all school holiday periods in 2022 and each even numbered year thereafter. 

3.Orders 16 and 17 made on 1 June 2021 are discharged. 

4.That the parties keep each other informed of all social activities that the children are invited to and will not make any arrangements involving the children when they are in the care of the other party without the other party's consent. 

5.The parties may seek the relisting this matter following the release of the expert's report.

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. The parties have resolved between them the dispute as to the appointment of a single expert in this matter and the purposes of that appointment.  To that end, within seven days they anticipate filing a minute of orders which will discharge the order for a s 11F report, appoint Dr B as a single expert in the proceedings, set out terms of reference for him and identify the scope of the material that will be sent to him such that orders may be made in chambers.

2. There are two matters in dispute before me today.  The first, which is in the context of an ongoing order for equally shared parental responsibility, is the nature and progression of time between X, who is now aged 13, and Y, now aged 11, with the father.  They primarily live with their mother at present.  Each of the parents anticipates that there will be ultimately an increase of the time that X and Y spend with the father, with the mother expecting the ultimate result to include alternate weekend times.  They disagree as to the extent of the time that X and Y should now spend with the father and the timing of any increases.

3. The further context of these proceedings is that they occur with a pending single expert's report, that is a single expert has been agreed on, is about to be appointed, terms of reference are about to be provided and then a report will be prepared by that single expert. 

4. Although as part of his application the father seeks orders for a transition to equal time there was a concession by the father that the consideration of equal time could be deferred until after a report is received by the single expert.  This was a sensible concession made by the father and accompanied the sensible concessions made on behalf of the mother during these proceedings. 

5. The second issue relates to an injunction to prevent the father coming within 500 metres of the Homestead at Property D, being the place at which the mother resides with the children and with other relatives.  That context occurs where orders 29 and 31 of the orders of 1 June 2021 by consent restrict attendances to those agreed in writing, being attendances at the home, and specify that the father will attend only on reasonable notice at Property D and in the company of another person. 

6. The second matter can be dealt with summarily.  There is no application filed with the Court, the application being made effectively as part of the case outline document.  The orders were also identified in the late filed affidavits of the mother.  Accordingly, there was almost no notice given as to the intention to pursue this particular order.  It was further conceded that the father has not attended at the property since the issue raised by the mother, being her concerns about him attending close to the Homestead.  I presume it was raised with him.  Where there are in place already restrictions in the orders made by consent an adequate basis is not put forward in a context where sufficient notice was not given of the intention to pursue such an order, and I dismiss that in so far as it constitutes an application.

7. Returning then to the issue of time. The time that X and Y are to spend with each of their parents is to be determined based on their best interests, which in turn are determined by consideration of the various matters set out at s 60CC of the Act. Not all of the considerations are either applicable today or, if applicable can have a bearing on the outcome of the case, but those matters which appear to be key basis of the various submissions made by the parties are the benefits of meaningful relationships, the nature of the relationships that X and Y have with each of their parents, X's characteristics and Y’s characteristics and the capacity of each of the parents.

8. There are background issues of family violence raised by the parties which will undoubtedly ultimately require further consideration, but they are more saliently here considered in terms of the capacity to parent and nature of relationships, rather than of an immediate risk of exposure to family violence.  That was the manner in which those issues appeared to be emphasised in submissions particularly the issues that related to the potential volatility of the father. 

9. The arrangements for X and Y are to be considered in line with the legislative pathway that follows once an order for equally shared parental responsibility is made, as it has been here.  I am to consider firstly whether or not there should be an order for equal time and whether that is in X and Y's best interests or reasonably practicable, and if not, I am to then consider whether an order for substantial and significant time for them is in their best interests and reasonably practicable. 

10. I note that neither of the parents seeks an immediate change to equal time and it has been indicated by the father who ultimately seeks such an order that it can await the single expert's report and so it can readily be determined that is not now in X and Y's best interests to move to an arrangement for equal time.  It is a matter to be potentially considered post the single expert's report.

11. I move then to consider whether or not arrangements for substantial and significant time are in their best interests.  I observe that orders were made by consent on 1 June 2021, which provided for alternate weekend time for X and Y with their father from 3 pm on a Friday to 5 pm on a Sunday or Monday, if the Monday was a public holiday, along with each Tuesday after school as agreed, which by agreement became each Wednesday after school. 

12. The father now proposes a 6/8 split in the time in the mother's favour, proposing that in week one the girls live with him from Wednesday to Friday and in week two from Thursday through Monday. 

13. The mother proposes that they spend time with their father from after school every Tuesday until 5:45 pm, after school each Wednesday until 7 pm, each Thursday morning immediately prior to school, in week one from Friday after school until Saturday at 5 pm and in week two, from Saturday after sports until Sunday at 5 pm.  She has crafted these arrangements around the many activities engaged in by X and Y. 

14. The mother leads evidence that X and Y have been upset and unsettled in the time surrounding spending time with their father.  She observes this in a broader context of the father having been emotionally volatile, that is exhibiting temper in the past.  The father has conceded a number of instances of such volatility in the past. 

15. As noted this application occurs in a conceded history of the mother as being the primary carer.  The incidence of X and Y’s upset and unsettledness have reasonably been focused in relation to today's proceedings on those matters that have occurred post-separation, prior to the current orders and immediately following the current orders.  The affidavit of the mother does indicate that both X and Y have been upset and have been unsettled and that such has been exhibited around the time that they spend with their father, but not in a manner which indicates why that has occurred.  There are indications of a previous history of upset or hesitancy being expressed by the girls in relation to a transition to having two overnights with the father.  They showed upset, fears and anxiety, expressing those at the prospect of moving to two overnights in a row with their father, as described in the mother's affidavit following the making of the orders at the start of June.  However, following their first experience of the two overnights there was a significant abatement of any upset.  That observation is qualified by the fact that X was crying at the following handover for a two night period, but what does not follow from that is any subsequent upset, anxiety or fears being expressed by either of the girls in relation to the two night arrangement.  Concerns that they would not cope with the transition to two nights have not been borne out.  Clearly, the prospect of an adjustment was productive of some upset but the experience itself mitigated that upset and appears to have removed it. 

16. It should also be observed that a complaint is made by the mother about a lack of good routine and structure on the part of the father and also she raises questions about his deficiencies in terms of parenting and providing appropriate food and health care for the children.  It should be noted that the particular arrangements that have been in place do not point to good opportunity to have good routine or structure on the part of the father.  That is a matter that speaks towards an increase in the blocks of time with him to enable that criticism to be met insofar as that criticism drives at what is best for the girls. 

17. The father, in his affidavit material, attests to his conduct during the time following the making of the orders at the start of June.  That time, as described by him, is rather unremarkable, demonstrative of peaceable interactions between him and the girls, and shows his attention to the matters that the mother had concern about insofar as they relate to exercise and food.  In short, the transition that has been observed to take place to two nights in a row per fortnight has not been sufficiently problematic to suggest that it has been less than successful, but rather that the increase in block times has been apt to enable the girls to enjoy the relationship with their father and to experience benefits of that relationship as may be inferred from his description of their time together in the affidavit, and may be inferred from the mother's description of their reactions to having spent nights in a row with their father, in particular the absence in that description of significant upset on the part of the girls. 

18. These circumstances are not suggestive that there should be a regression to one overnight period per week as suggested by the mother.  It should be observed that the proposals made by each of the parties are made against a background of significant tension and mistrust, yet also against a background where appropriate behaviour has been engaged in by each at handovers and the like, such that this is not a case which is characterised by significant complaints being made by either of the parties as to the conduct of the others at handover in the presence of the children.  Further, it occurs against a background where the mother has determined particular arrangements for the girls to spend time with the father which is indicative that whether or not the arrangements that she has put in place have been the most appropriate arrangements, she has certainly pursued the children having a relationship with their father.  That is, she has been demonstratively supportive of that relationship, despite concerns that she has had about the father's capacity.  Now against that background the mother urges caution and a slow approach to any further transition as she pursues orders that would involve continual short but high-frequency times with the father.  Such arrangements one might think would be workable if the parties had a cooperative and amiable relationship.  They have done well to cause those arrangements to work to date despite not having such a relationship but it may be supposed that the absence of such a relationship makes such arrangements difficult.

19. One of the difficulties is that pursuing a slow and cautious approach is not the touchstone that I am required to follow.  I am required to make orders that are in the children's best interests. 

20. It may be observed that the stress exhibited by the girls, or their upset, or unsettledness were far more apparent prior to the transition to the longer block times and the transition to the less frequent time.  If anything, the limited experience that has occurred since there was that transition at the start of June this year points away from the regime as suggested by the mother and points towards a regime as suggested by the father.  That is, what is observable from the change that has taken place at the start of June is that the girls have been able to reap the benefits of meaningful relationship with less stress, less upset and less demonstration that they are unsettled than they did in the past under alternative arrangements.  It also leads to a tentative conclusion that the longer block periods of time are adapted to the children's characteristics, the nature of their relationships with each of their parents and the parenting capacity that is available from each of the parents. 

21. The issue then arises as to what the appropriate shape of the orders should be.  Despite the parents’ success to date with handovers, it is better to reduce their interaction given the tension that is apparent between them.  It is also better to give X and Y a full clear weekend with the father during alternate weeks as that will enable or support a move to better structure being able to be provided by him and routine as was pursued by the mother.  It is appropriate that there also be time on the off week that is not simply limited to immediately after school but also constitutes a block given the success that has been experienced in the move towards block time to date.  Such a regime retains a high regularity.  It does not reflect either what the mother sought, or what the father sought however. 

22. School holidays ought to be equally shared, but only after X and Y are given the opportunity to adjust to an increase in time with their father, such that there should not be particular arrangements for the division of school holidays outside the regular arrangements to spend time with the father for this school holidays but that there should be a division of school holidays from the next school holidays.  The girls are likely to benefit from having an extended time with each of their parents and it may be thought that such looms large as a matter of importance to them given one of the disputed issues between the parents is whether or not they should attend boarding school in the future, which may have the consequence that school holiday time becomes even more important. 

23. There should be no order for family therapy, despite the mother's pursuit of such.  There is insufficient evidence before me to dictate the imposition of a regime of family therapy for the parents.  However, I note that the mother has sought that family therapy take place.  I note that the father, through his counsel, has expressed a willingness to attend on family therapy if the mother is willing to do so.  Although I will not make orders compelling the parties to attend on family therapy, I anticipate that family therapy will occur given the representations made by each of the parties in respect of their willingness to undertake such therapy.  It might be thought that engagement in such therapy will reap benefits for both X and Y. 

24. Although the father's orders addressed arrangements for special days I am unable to make particular orders about the special days given the nature of the affidavit material that was before me did not sufficiently address such to enable me to address particular arrangements as being in X and Y's best interests.  Hence, I will not make specific orders about special days over and above those that are already in place under the consent terms.  However, I note it is within the province of the parents to make agreement as to special days.

25. I further anticipate that the matter will return before the Court following the family report, dependent on the contents of that family report and dependent on the extent to which the parents are able to incorporate what they learned from that into future arrangements for the children. 

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       25 June 2021