Day-Garner and Garner

[2007] FamCA 1564

FAMILY COURT OF AUSTRALIA

DAY-GARNER & GARNER [2007] FamCA 1564

FAMILY LAW – CHILDREN – Shared Parenting – Dispute between parents with little capacity for understanding the effect their attitude had upon the future development of their two children – Orders made following negotiation and some contest

Family Law Act 1975 (Cth)

APPLICANT: Ms Day-Garner

RESPONDENT: Mr Garner   

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2613 of 2005

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Morrison & Sawers

COUNSEL FOR THE RESPONDENT: Ms Martin

SOLICITOR FOR THE RESPONDENT: Martin Irwin & Richards

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bender

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. THAT all previous parenting orders be discharged.

2. THAT the husband and the wife retain equal parental responsibility for the children of the marriage namely K born … day of March 1996 and C born the … day of June 1997.

3. THAT the children live with the husband.

4. THAT the wife spend time with the children as follows:

   (a)on the first weekend of each calendar month (and for the sake of clarity the first weekend shall commence on the first Friday in the month) from 6.00pm Friday until 5.00pm Sunday (or 5.00pm Monday if the Monday is a public holiday or a non-school day), such time to be suspended during school holiday periods;

   (b)for one half of each school term holiday period from 6.00pm on first Friday until 5.00pm on the second Monday, unless otherwise agreed, subject to the wife being in substantial attendance;

   (c)during the Christmas school holiday period as follows:

   (i)for 21 days commencing 12 noon on the day after the last day of school term in even numbered years;

   (ii)      in other years for 21 days commencing 12 noon on 2^nd January;

   (d)by telephone

   (i)each Tuesday and Thursday between 7.00pm and 7.30pm;

   (ii)on the children’s birthdays;

   (iii)on the wife’s birthday;

   (iv)on Mother’s Day;

   (v)for the purpose of the wife spending time with the children by telephone the husband shall provide the wife with a current land telephone number and mobile telephone number and ensure that the children are available at such time;

   (vi)at other times as agreed.

4ATHAT the party having the care of the children on Christmas Day have the children telephone the other party that morning.

1. THAT the children be at liberty to telephone the husband and or the wife  at any time.

2. THAT unless otherwise agreed changeovers shall occur outside the police station in S.

3. THAT the wife shall be at liberty to extend weekend time with the children pursuant to paragraph 4(a) until 9.00am on Monday (or Tuesday if the Monday is a non-school holiday or public holiday) to enable the wife to take the children to school, with the wife to give the husband two weeks written notice of her intention to so extend her time with the children.

4. THAT in the event the living circumstances of either party change or either party is convicted of an indictable offence, that party shall forthwith notify the other party and there be liberty to apply.

5. THAT both the wife and the husband (and their agents) be restrained by injunction from taking the children to or allowing the children to see any counsellor, social worker, psychologist or psychiatrist without the written consent of the other party.

6. THAT both the wife and the husband be restrained by injunction from

   (a)denigrating the other parent or discussing these Orders or the proceedings with the children, to or in the presence or hearing of the children, or allowing the children to remain in the presence or hearing of any other person so denigrating either parent or discussing these proceedings;

   (b)consuming alcohol to excess during their respective periods of care.

7. THAT the Independent Children’s Lawyer be discharged.

8. THAT otherwise all extant applications be dismissed and the proceedings be removed from the Pending Cases List.

9. THAT 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.

AND THE COURT NOTES

A.That the wife and the husband have agreed that the wife shall spend time with the children from 7.00pm Friday 23^rd November 2007 until 5.00pm Sunday 25^th November 2007 in lieu of her time with the children on the weekend commencing 14^th December 2007.

B.Each party shall be in substantial attendance during school holiday periods when the children are in their care (substantial attendance being defined as having leave from their employment for at least half of the period of holiday care).

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 2613 of 2005

MS DAY-GARNER  

Applicant

And

MR GARNER  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter the parties have presented Minutes of Proposed Orders by consent, save for one issue.  I do not regard the issue as modest, as it is important to both of them.  This matter was last before me on 30 April 2007 when following various submissions, orders were made that day.  I well recall the proceedings. The parties were greatly assisted by a report dated 26 February 2007 presented by Ms L.  I ordered a further report.  That report has been filed and is dated 3 October 2007.  The contents of that report, together with the recommendations and the evaluation are quite clear.

2. The parties have, to their credit, adjusted the proposed consent orders within the umbrella of the evaluation of Ms L.  There was one minor issue between the parties which was firmly argued by Mr Dickson.  To recite the oft used words of other judges, all that could be said was said in the submission of Mr Dickson.  I listened carefully to that which he had to say.  It was quite complex and the parties in the result demonstrated an utter inability to communicate in a reasonable and dignified manner.

3. The area for dispute within the parameters of these orders is clear to me and I will forecast that there will be dissent between the two of them over the forthcoming years.  However, I hope not, but I have little confidence to the contrary. 

4. Put simply, the arrangements for Christmas Day, New Year's Eve and New Year’s Day are important to both parties.  On the submission of Mr Dickson, the husband would miss out on New Year's Day on one of the alternating years.  It was submitted by Ms Martin that was also an important day for the family generally.  It seems to me to be fair and appropriate that each party should have the benefit of the Christmas Day and the New Year's Eve and Day during one year and in the alternating year the other party enjoy that benefit.  It is the best I can do in the straightened circumstances of this particular case.

5. There is one thing that I wish to add.  I would hope that the parties will carefully read the two reports of Ms L.  Both K and C, aged 11 and 10 years respectively, should grow up in an environment with order, structure and contentment.  Without that, I do not think the future is going to be a very rewarding one for them.  They each have had a considerable say in these proceedings, which is made clear through the reports of Ms L.  The affidavits of the parties, together with the reports, address a high degree of tension within the separate households of the husband and the wife and what I am about to say is addressed to them so that they understand that issues of domestic stress and tension should be avoided in the best interests of K and C.

6. All of the material reveals to me that the situation in which the two children reside and their transfer from one household to the other is grossly affected by elements of stress to varying degrees which can only be contrary to their best interests. This, as much as possible, should be ameliorated.  The impact of such stress upon children was forcefully addressed by Dr Jennifer McIntosh in a paper, "Enduring conflict in parental separation:  pathways of impact on child development," (Journal of Family Studies, volume 9, number 1, April 2003), focusing upon the known impacts of entrenched parental conflict on the development of children.  In the course of her paper, Dr McIntosh had this to say:

   “Unresolved, enduring parental conflict can violate children's core development needs and threaten their psychological growth.  These findings provide a strong impetus to child-focused practices in family law dispute resolution.  They point to a need in the practitioner for an unapologetic mindfulness of the needs of children.  The challenge that this research throws down to the practice front is real, to deal with this not as a "flavour of the month" nor the latest itch in the Attorney-General's Department but as a fundamental evidence-based push for evolution in practice.” 

7. Later, under the heading "Through a developmental lens:  impact of parental conflict," Dr McIntosh went on to say:

   “Secure family environments and emotionally responsive parenting in all family constellations provides the core foundation for the developmental needs of children.  Certain developmental goals for children at different stages are more easily threatened by virtue of their age-related ability to understand nuances and the implications of parental conflict.”

8. Subsequently, under the heading, "Impacts of parental conflict on core development tasks," Dr McIntosh had this to say:

   “Enduring parental conflict disrupts the very organisation of emotional experience in any childhood.  This type of disruption may have both escalating and cumulative developmental consequences.  It interrupts vital attachment processes in infancy and toddlerhood, with high-intensity conflict linked with the development of insecure, disorganised attachment styles.  In turn, this interrupts the development of emotional security, with children becoming more prone to negative emotional arousal and stress, less able to regulate their feelings, less optimistic about their ability to cope and less able to cope.”

   [Later:]

   “A child's ability to regulate their emotions and behaviours develops primary in a family context.  It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them and coaching of adaptive responses.  When these normative parental functions are eroded by conflict, children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.”

9. I have taken the time to address these fundamental issues for the benefit of the parties so the future development of K and C will be one travelled by the parents free of ignorance.  I have marked the Minute of Proposed Orders Exhibit “A”.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  15 January 2008