DAVIEGA & HARPE

[2019] FCCA 3199

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVIEGA & HARPE [2019] FCCA 3199

Catchwords:
FAMILY LAW – Parenting – mother seeks variation of existing shared parental responsibility order – where she alleges inability of the parties to communicate due to hostility – where both parents are capable parents but highly distrustful of each other – where no actual evidence of significant disagreement about long term  issues – shared parental responsibility order not varied – where equal time is not practical due to child’s age and inability of parents to communicate effectively – spend time orders varied.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice and Asplund, In the Marriage of, Re (1978) 6 Fam LR 570

Applicant: MR DAVIEGA

Respondent: MS HARPE

File Number: CSC 265 of 2015

Judgment of: Judge Young

Hearing dates: 15 – 18 October 2019

Date of Last Submission: 18 October 2019

Delivered at: Darwin

Delivered on: 18 October 2019

REPRESENTATION

Counsel for the Applicant: Ms Noble

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Franz

Solicitors for the Respondent: Darwin Family Law

Counsel for the ICL: Ms Romeo

Solicitors for the ICL: Marris & Co

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

CSC 265 of 2015

MR DAVIEGA

Applicant

And

MS HARPE

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 case concerning X who was born on … 2014 and is now four years and 11 months old. His parents were in a short-lived relationship from 2013 until about mid-2014. The relationship ended before X was born.

3. The parties separated in circumstances of considerable acrimony. The mother said that she was deceived by the father about his circumstances at the time, including whether or not he was a resident in Australia or Country C and whether or not he was in a relationship with someone else. I make no findings about those matters.

4. The mother also alleged that the separation was precipitated by an episode of what she described as “family violence”. She was cross-examined about this incident and it is described in her trial affidavit where she said that during an argument she was “held against the wall by the father by his elbow.”

5. She was cross-examined on an earlier affidavit where she described the same incident and had not mentioned any physical contact but merely said that she was “cornered” by the father yelling at her. In cross-examination she did at one point say that it was “not physical”, at another point she said that she was held by the father using, she implied, physical force.

6. I am not satisfied that the mother’s evidence about that episode has the requisite clarity for me to be satisfied that there was an episode of family violence at that time and I am not satisfied that there has been any family violence between these parties at any time.

7. She also complained about an episode in Town D soon after X’s birth. She said that when X was about four months old, a baby in arms in other words, she was having a coffee with a male friend at a café with outdoor seating in Town D. She said the father rode past on his bicycle, stopped and approached her. She said he was insulting or offensive and yelled at her. The father denied anything of the kind, though he said that he did stop and inquire whether the baby was X.

8. The mother said that, at a minimum, the father created an embarrassing and unwelcome scene in a public place. Her evidence that the father was yelling at her across a distance of about five metres in a public place would, if accepted, suggest that his behaviour was at least threatening.

9. She said that she went to the police after that episode. I asked whether she went to the police because she had been frightened. She said she had not been frightened but wanted information from the police. I was left feeling uncertain about precisely what her intention was in visiting the police but in view of the mother’s evidence that she was not frightened by that episode and it did not involve any physical contact I am satisfied that that did not amount to an incident of family violence.

10. I should say something about the background of these parties. I have alluded to the mother’s doubts about whether the father was a resident in Australia or elsewhere. He holds a degree in qualifications. He went to Country C some years ago and did post-graduate studies relating to studies and was eventually employed in Country C. He has a long-term connection with Country C and has conducted or conducts a business in Country C: a business and consultancy. He owns property in Country C and is a person with a good deal of familiarity with Country C, Country C culture and Country C people. He has a serious interest in Country C and its culture. His partner before his relationship with the mother, and since, is a professional employed in Country C.

11. The father is very well travelled and still continues to conduct business in Country C though I am satisfied he is now resident in Australia, at least over the past 12 months according to his travel records.

12. The mother has a degree in qualifications. Her professional career, as far as I can see, has been varied. She was a Public Servant at one point and now, after having done various professional jobs, is employed by an employer on the Region A, although she is not a health care worker herself.

13. Both parents are educated. They are, according to my assessment, each highly intelligent. They are both very competent in their fields, I am sure, and successful.

14. On the face of it, each of them has a great deal to offer their son. In that sense, X is fortunate. X’s misfortune is that his parents are deeply mistrustful of each other, although over a number of years they have endeavoured to reach agreements about X. I suspect that their underlying mistrust of each other has played a significant part in the breakdown of many of those agreements and arrangements.

15. In December 2015 consent orders were made in this Court in Town D that the child live with the mother. Further orders were made by consent in 2017 that X would progressively spend time with his father leading to overnight time. At the time of those orders X would have not-yet been three years old. Under those orders X did spend time with his father on a number of nights. I have looked for a complete record of that in the trial materials and the only reference I found to it was in the mother’s trial affidavit where she said that up to the time that she swore her trial affidavit on 24 September this year, X had spent a total of 56 days with his father and 12 nights in total.

16. The time spending under the 2017 orders commenced either at the end of 2017 or at the beginning of last year, 2018. That continued over some months until about August 2018 when there was a regrettable incident where, to use the most neutral description I can find, X was proving reluctant to transition to his father and both parents became excited, if I can put it that way, and emotional. That display of emotion took place in front of X.

17. That incident plays a large part in the trial affidavit of the mother and that incident and other matters she refers to is intended to have the court infer that, first, the father lacks insight into the child’s needs and, secondly, that the child is inadequately attached or the child’s attachment to the father is not sufficiently strong for him to comfortably spend overnight time with the father.

18. It is true that the child has spent relatively little time with the father and little overnight time with the father. Of course, given the circumstances of the parties’ separation, that is, before X’s birth, there has been very little opportunity for X to form an attachment to his father as an infant.

19. The mother, as I have already mentioned, considers the father to have deceived her about various matters. She still holds the view that the father has been dishonest with her and her view remains that the father is dishonest about various things. Her trial affidavit is unremittingly critical of him.

20. One of the matters that was revealed in her oral evidence, perhaps more than in her affidavit, was that she holds a deep-seated fear that the father will abduct X. Due to the father’s connections to Country C, including owning a home in Country C; having a relationship in Country C; at various times, at least, conducting a business in Country C and having been resident in Country C, she fears that the father will abduct X and that she will not be able to obtain his recovery promptly, notwithstanding that Country C is a signatory to the Hague Convention. She points to certain criticisms of Country C’s performance under the Hague Convention, particularly from the US State Department.

21. I am satisfied that the mother’s anxiety about this particular issue, that is, the risk of abduction, has led her to take some relatively extreme positions about what orders this court should make. One of them is that the child should not be able to travel with the father until the child is 18 years old. Another position she has taken is that the child ought not to spend any overnights with the father until he is eight years old, more than three years away.

22. The father on the other hand, takes the view that the mother is committed to preventing X developing a meaningful relationship with him. He considers that the mother’s various claims are untrue and motivated by the matter I have just mentioned. I think the father is mistaken about that but his view leads him to be dismissive of any of the mother’s concerns, some of which are well-founded. The concerns I am talking about do not involve abduction but concern evidence of what I am satisfied is some anxiety or stress that X has exhibited at various points and perhaps still exhibits.

23. The mother gave extensive evidence about X’s distress. There was also not only the incident from August 2018. In her trial affidavit and her oral evidence she said that X is suffering from urinary incontinence. She said that in 2017 or early 2018 he was successfully toilet trained but, particularly after the incident in August 2018, began to experience incontinence, particularly urinary incontinence, sometimes during the day (although that is apparently rare) as well as more frequent night-time bedwetting. She also alleges that the child has become distressed in the father’s care.

24. She relies on X reporting such distress and she alleges that the father has refused to permit X to telephone her in order to alleviate his distress and anxiety. The father said in evidence that he has not seen evidence of this distress while X is in his care and has not seen any examples of incontinence and he says that the child is happy with him. He allows one exception. He said that after the incident in August 2018, X was exhibiting some distress and he initially helped X telephone his mother and then returned him to his mother early.

25. There is some other evidence that the child is anxious that he may not be returned to his mother. There is evidence from two workers at X’s child care centre that following the August 2018 incident that X displayed some anxiety after the unannounced arrival of the father at the centre. According to the affidavit of one of the workers, X nevertheless settled when he was reassured that he wasn’t going to be taken away or, at least, that he would be returned to his mother. It is difficult to say exactly what may be the source of such anxiety.

26. The family consultant observed that this may be indicative of a stage of development, bearing in mind the fact that X is not yet five and when this incident happened in August 2018 he was not yet four. It may be indicative of a stage of development and it may be coincidental that the mother herself has a deep fear that X will be abducted. The family consultant, during her observation of X at the beginning of this year, particularly with the father, noted that X appeared initially somewhat anxious about being returned to his mother but, when reassured, he spent the observation happily interacting with his father.

27. As I have mentioned, the family consultant expressed the view that this kind of anxiety was normal for a child of X’s age who was, certainly at the time of the observation, barely more than four years old.

28. I should say something more about the mother’s fears that X will be abducted. I am satisfied that her fear is genuine. I am also satisfied that it is not well-founded. The father was cross-examined about this issue and I am satisfied that he has no intention of abducting X, that he would understand the catastrophic effects of anything of that kind, and I am also satisfied that he is an intelligent and level-headed person who would simply not contemplate such a course.

29. The issues between the parties at trial were as follows. The mother seeks a variation of the existing shared parental responsibility order. She seeks sole parental responsibility. The ground which was advanced by the mother was that such is the level of the hostility between the parties that they cannot effectively communicate and an order for equal shared parental responsibility would be empty of substance or content and simply invite further disputation. The thing to be observed about that submission is that I was not actually directed to, nor did counsel point to, any actual disagreement between these parties about a long term parenting issue.

30. They have not disagreed about the child’s health, they have not disagreed about the child’s religion (neither parent seems to have any interest in religion) and they have not disagreed about the child’s education. He is due to commence school next year. The father, in a zealous effort to research the available schools for X, researched on the web some 20 schools in the Region A region and created a “priority list”. He sent that to the mother. The mother was not particularly responsive to these proposals by the father, suggesting, I am satisfied, a reluctance to engage with him on such issues but, nevertheless, the school chosen by her, Town B Primary School, was, according to the father, one of his preferred schools.

31. There is agreement that the child go to Town B Primary School. As noted, I did not see an example of any significant disagreement between these parents about equal shared parenting issues. The father has, albeit somewhat reluctantly, but perhaps for reasons that could be understood, consented to the mother relocating from Town D in 2015. He consented to her relocating from Darwin to the Region A this year. He was criticised for being slow about that but the fact is, on both occasions, he ultimately consented. Both parties agree that the child should live with the mother.

32. The real area of disagreement was about the arrangements for X to spend time with his father. The father wants to progress to overnight time or recommence overnight time. Overnight time was suspended by orders in September last year following the August 2018 incident and the mother’s allegations that the child’s overnight time with the father was deeply upsetting for the child. The father wants orders to recommence time spending almost immediately and, as I understood his initial order at least, was seeking to have time progress to the child spending one week in four with him eventually.

33. The mother’s position is that the child should not spend any overnight time with the father until he is eight years old. The family consultant took the view that the mother’s time proposals which, roughly speaking, are for the child to spend three days a month with the father until he is eight were minimal or at least were the minimum required in order for this young child to have the benefit of a meaningful relationship with his father.

34. I accept the mother’s evidence that the child has displayed anxious or stressed behaviours over the past few months in particular and her evidence of the child’s urinary incontinence. Having regard to that I consider that a relatively cautious approach is warranted. The family consultant was of the same view.

35. The family consultant was initially of the view that overnight time could commence almost immediately without any ill effects on the child. After she heard the mother’s evidence about the child’s urinary incontinence, which the family consultant accepted might indicate that the child is feeling a degree of stress, either because of developmental issues relating to his age or the intensity of the conflict between his parents or other issues, that a more cautious approach was warranted. She thought it may be appropriate that overnight time did not begin until the child was six years old. Not surprisingly, the family consultant did not express a definite view but I understood her evidence as expressing the opinion that it may be appropriate for X to commence overnight time with his father at some range between turning five, which will be next month, and turning six, which will be in … 2020.

36. I should say that there is no independent evidence that X is actually fearful of his father. I do not recall the mother giving such evidence either. The mother’s evidence was that while the child displays some anxious or stressed behaviours around the time he spends with the father she also said that X is excited, or sometimes excited, about spending time with his father. That does not appear to me to be consistent with X being afraid of his father and I am satisfied that he is not. I am satisfied that if there is anxiety or stress it has its source elsewhere, either because of the child’s developmental age or because of the intensity of the conflict between his parents or for other reasons. I make no particular finding about that.

37. I also am satisfied on the basis of the family consultant’s observation of the child with the father that the child is not afraid of his father and is comfortable in his presence and played happily with him.

38. The legislative pathway the court is required to follow in making parenting orders is set out in Part VII of the Family Law Act 1975. I should also say that given that there are existing orders there is a Rice & Asplund (1978) 6 Fam LR 570 issue to be determined.

39. I am satisfied that it is in the best interest of the child that the time orders be revisited. I am satisfied that the time orders that were made by consent in 2017 were inappropriate and I am satisfied that those orders do not realistically address the child’s developmental stage and his readiness to begin overnight time with his father. For that reason, I am satisfied that the requirements in Rice & Asplund in relation to time spending are satisfied in this case. I am not satisfied that the requirements of Rice & Asplund are satisfied in relation to the question of parental responsibility and I do not propose to make any change in the parental responsibility order.

40. Under Part VII the best interests of a child are to be determined by having regard to two primary considerations under s 60CC(2):

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    The second part, 60CC(2)(b), is fortunately not an issue in this case.

41. The additional considerations in subsection (3) are as follows.

42. Any views expressed by the child. No views have been expressed by the child. Having regard to his age, that is not surprising.

43. The nature of the relationship of the child with each of the child’s parents. There is no question that the primary carer of the child has been the mother and the child is securely attached to his mother. Somewhat different issues arise in the child’s relationship with his father for the reasons that I have already discussed.

1. The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in decision making about long-term issues, spending time with the child and communicating with the child. I am satisfied that both parents have sought to participate in that decision making, to spend time with the child and to communicate with the child. The latter, of course, is applicable only to the father’s situation.

2. The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. The mother’s trial affidavit alleged that the father has not paid child support or there were difficulties in seeking child support but as I understood the evidence, there is currently a child support assessment and child support is being paid. I did not understand that to be an issue in this trial.

3. The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from his parents or any other child. There is not going to be any significant change in his circumstances of that kind.

4. The practical difficulty and expense of a child spending time with each parent. That is not a particular issue though the father is at the moment, I am satisfied, resident in Sydney. The mother is living on the Region A and X is living there so the father’s time proposals are a little unusual in that he is proposing to travel from Sydney to the Region A to have X spend time with him. He also has a yacht moored in Town E and might live there for some time but in order to perhaps minimise the expense of travel he has suggested that X spend time with him on two consecutive weekends in a month.

5. That would also, it would appear, permit the father to pursue his business interests in Country C, should those continue. That in itself does not appear to me to be an unreasonable matter to seek to accommodate.

6. The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs. Both of these parents were reasonably mature when they had X and, as far as I know, he is the only child of each of them. The parents, therefore, were starting from scratch in a reasonably unusual situation, that is, where neither of them had lived together, certainly for any length of time, and their relationship was very short and they separated before X was born. In the circumstances each would be uncertain of the other’s parenting capacity and I think that is the context of the suspicion that each holds about the other.

7. My assessment of each parent is that they are competent parents. I saw nothing to suggest, as the mother implies in her trial affidavit, that the father lacks emotional insight or sensitivity into the child’s needs. It may be that, as with any parent, as a parent gains experience in parenting, then greater experience leads to greater insight. By making that observation I am not intending to be critical of the father. It was not in issue that the mother is a highly competent parent.

8. The maturity, sex, lifestyle and background of the child and either of the child’s parents. I have said something about that already, particularly the father’s interest in Country C, his business, his interest in Country C and Country C culture.

9. The child is not an Aboriginal or Torres Strait Islander child.

10. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. I am satisfied that each of these parents is a highly responsible parent devoted to X.

11. Family violence. I have previously made a finding about that.

12. Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. The father proposed that there be interim orders to test, as it were, a time regime. I am satisfied that that proposal ought to be rejected. I am satisfied that this litigation has been particularly stressful for these parents and they ought to be given some certainty about the outcome as soon as possible.

13. Any other factor or circumstance that the Court thinks is relevant. There is no other relevant matter.

14. As there will be an order or is an order for shared parental responsibility, I have to consider the matters in s 65DAA.

15. I am satisfied that equal time is not practicable in this situation because of the child’s age and because of the inability of the parents to communicate effectively and flexibly about X’s needs. In relation to substantial and significant time, the orders that I propose to make, over time, will provide for X to spend substantial and significant time with his father.

16. I accept the proposal of the independent children’s lawyer. In summary, those proposals provide for X to spend daytime with his father until May 2020 when X will begin to spend one night on two occasions a month until he turns six in … 2020 when he will begin to spend one night and then two nights; one in the first weekend and two nights in the second weekend. Then beginning in February 2021, when X will be six and a quarter, for two nights in the first weekend, Friday to Sunday, and three nights in the second weekend, progressing through to August 2021.

17. I also propose to make orders that in the school holidays beginning in December 2021 X will spend two one-week blocks of time with his father and beginning in December 2021 that the child may travel to Sydney with his father.

18. Weighing all of those matters up, I propose to order that the airport watch remain in place until the child is nine years old which will be … 2023.

19. In relation to the airport watch order, the father wishes to, at least in the orders he seeks, be able to travel with X to Country C next year. I am not satisfied that that is appropriate for a number of reasons. The first and the most obvious one is that the time regime that I have ordered will not permit that. Under the time regime, the father is not going to spend a significant time, or long blocks, until the December 2021 holidays when X will be eight.

20. The father wants to be able to travel overseas with X as soon as possible. The mother, as I have said, opposes that. The independent children’s lawyer was of the view that the child could travel with the father when he turns eight. The family consultant expressed the view, initially, that 10 years old may be appropriate, at another time, eight years old. I do not think there is any particular science behind all of this but I do take into account the fact that there needs to be a reasonable block of time under the orders for the father to travel with X overseas.

21. On my calculation, that would not begin to happen until he turns eight.  I also take into account the mother’s anxiety about this and I think that latter factor is an important one because I am satisfied if the mother’s anxiety about this, which I have found is unreasonable, continues unabated, it is likely to have a deleterious effect on her capacity to support a relationship between X and the father.

22. The independent children’s lawyer is to bring in a minute of orders reflecting these reasons for judgment within 28 days.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  7 November 2019