Deck and Poors

[2007] FamCA 710

FAMILY COURT OF AUSTRALIA

DECK & POORS [2007] FamCA 710

FAMILY LAW - CHILDREN - With whom a child spends time - Variation of orders

APPLICANT: MR DECK

RESPONDENT: MS POORS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3987 of 2003

DATE DELIVERED: 13 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms R. Stoikovska

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr C.P. Arnold

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. The orders made by consent on 23 June 2005 be discharged.

2. Orders by consent as per minutes to be provided as per the solicitors for the mother.

3. It is further ordered the father spend time with the child in the school term overnight from after school on each other Thursday until the commencement of school on the Friday morning.

4. The father be permitted to attend outside the time when the child is otherwise with him:

   (i)at any extracurricular activity that the mother invites him to attend;

   (ii)at any school related sporting final (including semifinals) or milestone events and any school-related celebrations.

5. The father pay $950.40 for the costs incurred by Ms D in attending at the court on 12 July 2007.

6. The father pay towards the mother's costs of the application the sum of $7500.

7. The applications and responses thereto be otherwise dismissed.

8. The usual order as to the 65DA annexure.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3987 of 2003

MR DECK

Applicant

And

MS POORS

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application seeking to vary parenting orders that were made on 23 June 2005.  The application was brought by the father some four and a half months after those orders were made.  In recollection, it sought to radically change the arrangements for the child that had been agreed upon only some months earlier by seeking an equal shared parenting arrangement of week‑about.  In the course of the period of preparation of the case and the ensuing matters, it has morphed into a significantly different application in its form.  An amended final application for final orders was filed as recently as 25 June of this year.

2. The father was then seeking effectively that the child, a son, who was born in October 2001 and is now five and a half years of age, was seeking that the child reside with him from after school Thursday until 9 o'clock on Monday - that is, alternate weekends - from after school Thursday till Friday morning in the alternate week, and from Monday after school until 7.30 pm in the other week, so that the child would spend five nights per fortnight with the father during school term, plus on a sixth night he would have an evening activity with the father, and otherwise there were orders sought relating to school holidays and the like.

3. As this case has progressed before me, the matters in issue have narrowed down to two areas of concern only.  In his final address which he has just delivered, the father has withdrawn his application for Monday night time with every second week, and the dispute primarily left for me to determine is whether in alternate weeks the child should see his father from after school Thursday until the commencement of school on Friday as the father would have it, or from after school Thursday until 7.30 pm Thursday as the mother would have it.

4. In addition there was some other dispute about whether the father should be able to attend at the child 's extracurricular activities no matter which parent had organised them, and I think that issue has now resolved itself down to a formulation that the father will be able to attend any school sporting final or milestone event, and any annual or Christmas celebration associated with any school activities, and will otherwise be entitled to attend at any extracurricular activities organised by the mother only at the mother's invitation.  I think that is the formulation that is now effectively agreed upon.  So really this whole dispute I am now having to deal with is whether on Thursday once a fortnight during the year, that is about 20 Thursdays a year, the child goes home at 7.30 pm on the Thursday or stays overnight with the father till Friday morning.

5. The criteria by which that dispute is capable of being determined are not entirely clear to me.  I do not gain a great degree of assistance from the relevant legislation because it deals with much broader concepts rather than the finetuning that this dispute requires.  The legislation says that I should regard the best interests of the child as the paramount consideration and then make orders accordingly.  I am to take into account as a primary consideration the benefit of the child of having a meaningful relationship with both of the child's parents, and it is difficult to say objectively that the meaningful relationship that the child will have either with his mother or his father will be enhanced or will somehow be adversely affected if I do or do not make the narrow order that is the ambit of this dispute.

6. The parties have agreed to extensive orders relating to the amount of time that the child should spend with his father, whether he spends an extra 20 overnight periods for most of which he will be asleep, whether that ultimately means he will have a more meaningful relationship with both of his parents is a matter about which I cannot draw any positive conclusion.  The additional considerations that I am required to take into account under section 60CC(3) do not particularly help me when I look at the peculiarities of this case.

7. The father says "I'm a very genuine man.  I want to be involved in my child's welfare.  I want to be an active player in his life.  I have made large sacrifices to achieve this.  I have given up my career path which saw me living in New South Wales.  I've moved to Melbourne to be near my child.  I have endeavoured from his early age to become a very involved player in the child's life.  I have had to do so with resistance from the mother, yet I have now reached a position where those who have seen me with the child, and particularly the court counsellor, have indicated that I am a caring, loving and involved father and that I want to increase my role in the child's life and give the child the benefit of all of the positive things that I can give him."

8. The mother's case is that she has for good, bad or other reasons an inability to cope with the father playing an increased role in the child's life.  She has found the whole exercise of the litigation process and indeed the father's involvement in the child's life to be a stressful one for her, so much so that she has been undergoing therapy for the past 18 months or so, in order to deal with the stresses that she finds it creates for her.  She says she struggles economically to provide for the child with limited assistance from the father.  She finds the child that comes back to her after periods with the father to be "cranky" I think was the word that was used, and less amenable to her authority.

9. In the circumstances she says "the less the better".  She points by her counsel to the passages of the welfare report that indicate that the child is doing sparklingly well in the present arrangement, and in those circumstances it is as counsel said, "If it ain't broke, why fix it?"  Those are the competing cases in this circumstance that are before me.

10. The independent children's lawyer has adopted the submissions, recommendations of the report writer, namely that it would be in the child's best interest to have the time the child spends with the father maximised and that an overnight on the Thursday is the more appropriate arrangement than that which the mother envisages.  There are a couple of reasons, not the least of which is that in midwinter, taking a child as young as this one out at 7.30 at night unnecessarily, which is a requirement if there is to be a changeover, cannot be seen to be particularly advantageous to the child.  Secondly, there remains a level of hostility between the parties and the less face-to-face contact the parties have the better, although as there is not any evidence that the hostility has actually flared at changeovers, just that the mother had difficulties with the father's presence, and in those circumstances it is said that it is probably better for there to be less opportunities for face-to-face contact.

11. So when I put those facts into the criteria that the legislation requires me give consideration to, I am not sure that the legislation draws me one way or another to the better answer in these proceedings.  I am to look to the nature of the relationship of the child with each of his parents, and it is clear from the reports of Ms D that the child has an excellent relationship with both parents.  She says:

    From observations of [the child] with his parents there was little observable difference in his interactions with each parent.  [The child] was settled with both parents and generally played well on his own for one and a half to two hours while his parents were separately interviewed.  Notably there was a similar amount of interruptions by [the child] of each parent's interview, the interruptions were simply because the child wanted to show each parent what task he had completed in the playroom or he needed assistance with a task.  Notably both parents were attentive to [the child] and able to give him direction and encouragement.  In summary, [the child] appears to have integrated the two separate parts of his life quite well at such a young age.  He has a good understanding of who is in his family.  In the absence of good communication between his parents, [the child] will have to varying degrees learn what to say, and say what he believes each parent wants to hear.

12. Then later she says:

    From observations of [the child] with his parents and from what the child himself says, it is wholly apparent that [the child] has a close, affectionate, reliable relationship with both [parents].  It is also apparent that [the child] has integrated the two separate parts of his life quite well for a young child and the current living routine affords the child necessarily emotional stability and security.

13. I should say that those latter remarks need to be read in the context of the court; at the time this report was originally prepared the father was still seeking a really significant change in relation to the child's living arrangements and seeking to move to a fifty-fifty arrangement.  I will skip for a moment to the criteria of section 60CC(3)(l) which is whether it would be preferable to make an order that would be least likely to lead to institution of further proceedings in relation to the child and comment that that criteria which was in the act before its amendment is a double-edged sword, and one unfortunate edge glinted in the sunlight in the course of these proceedings when reference was made to the father's summary of argument. 

14. The father concluded his summary of argument with what could in some senses could be read as a threat.  "If I cannot get involved in his extracurricular activities in the future, then I will be returning to court in the future when my son is older and more mature to seek that time so that I can be involved in his extracurricular activities."  I just want it noted that the father has retreated from that position in his final submissions to me, saying that he now understands that enough is enough.

15. Throughout the child's short life his parents have been litigating.  The mother says she is exhausted by the litigation and it is part of the reason she has had to seek therapeutic intervention.  There are difficulties when there is lack of parental trust, and the background to this case is such that the parties' relationship was a most casual one, and as I think one of the expert witnesses commented, in those circumstances one has to expect a different quality of interrelationship between the parents of the child than had they lived together in a long-term relationship and had some understanding of each other's personalities and desires. 

16. In this case the mother has not adjusted well to the father's understandable desire to be a serious player in his son's life.  The constant threat of litigation on doubt adds to that concern and I hope that it is a gratifying matter that the father, having now understood or purports to understand that the ongoing litigation is something that the mother is having serious difficulties in coping with and has at least formally before me removed a threat that was implicit in his written submissions.

17. Returning back to the other criteria that may be of assistance under section 60CC(3).  I am required to pay attention to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  There are serious limits presently to the mother's capacity to encourage a greater relationship than the child has with his father.  She has gradually come to learn to adjust to the existing regime and is now being asked to change that existing regime.  It is convenient that I remind the reader that the existing regime which had been agreed to in June 2005 was alternate weekends 5 pm Friday until Monday, and then some midweek contact once the child commenced kindergarten or school.

18. The new change is for a longer alternate weekend period, and the mother views that as a significant change to which she is going to have to come to grips with as a result of the new set of orders that have been agreed to.  The parties communicate basically through a communication book.  There is some evidence of some increased capacity for them to communicate by electronic means, but at the moment it is by way of a book that travels with the child.  I am not convinced there is any evidence of the likely effect on the child of any separation from either of his parents for the very small amount of time that we are talking about here, namely overnight once a fortnight, in circumstances where for half the school holidays and four other nights of the fortnight the child will be living with his father.  I am not convinced that by giving him the extra night it would act detrimentally in respect of the quality of the relationship with his mother, although it is arguable as to whether it would impact significantly on the quality of the relationship with his father.

19. Each of the parents is clearly capable of meeting the child's emotional and intellectual needs.  Each of the parents have demonstrated the responsibilities of parenthood appropriately, albeit that on an economic basis perhaps the father's change in career has not been the wisest move as far as being able to provide an economic base for the child, albeit that if he did not change his career, then he would be too far away from the child to provide him with an emotional base, so one has been sacrificed to promote the other.

20. In the only other relevant factor in this matter is the evidence of Dr K, the mother's treating psychologist, who continued to emphasise that the mother has difficulties with the number of changeovers and the extent of contact, and that those difficulties manifest themselves in significant anxiety issues for her.  Therapy has not yet moved her to a position where the anxiety has abated.  Dr K's view, in contradistinction to Ms D's view, was that the Thursday night not be an overnight period, but he conceded he had not seen the child at all, he had not seen the father at all and whilst he was in a better position to understand the mother because of the length of time and the frequency with which he had seen her, he was not in any position to comment upon matters that Ms D could comment on, namely the quality of the relationship between the child and the father, nor make any comments about the father's suitability as a parent and the advantages to the child of an increased exposure to him.

21. One of the paradoxes here is that the father wanting to become more involved in the child's life has moved to be close to where the child's school is and where the child resides, and the mother views that as an intrusion into her life, and a confinement on the manner in which she is able to go around and about her life, and finds that extremely stressful.  It is a paradox because many parents say, "The logistical difficulties created by us living at different ends of the country or at different ends of the city are such that contact becomes unworkable," and yet in this circumstance where the father has placed himself in a proximity where it becomes extremely workable, the mother complains that she views that as an intrusion upon her life.  That is somehow interwoven with the issue that these parties never knew each other really before the child was conceived.

22. The only other comment of Dr K that is of significance is that the mother has shown an ability to cope by steeling herself to the situation as it has been presented to her.  So that is really what the legislation required me to give consideration to when making a parenting order, to give consideration to whether the father should spend substantial time with the child, which is really conceded in these proceedings, there is no claim any longer for equal shared parenting.  But I am not assisted by what is made up by substantial time in that whilst the legislation tells me substantial time includes weekends and non‑weekends; that is already agreed to in this case and it is really a question of degree ultimately that I am asked to take.

23. I think ultimately on the balance that the final position of the father is the one that I propose to adopt.  It has the great advantage that these parents, with limited capacity to deal with each other on a face-to-face basis, will have even less opportunity to do so as a result of the orders.  I am sympathetic in the middle of a cold winter night to the non-removal of the child from a warm existence, although that of course is a very momentary matter.  I happen to be deciding this case in a cold July.  If I was deciding it in a warm February, I might have a different emotional reaction to it, but I think there is also some merit in the father being able to arrange on Thursday nights a range of activities for the child without having to concern himself that the child has to be back with the mother by 7.30 out in some changeover point.  It enables the father and the child to begin a series of extracurricular activities together which will be their special activities, just as the mother has been insistent, and understandably so, on her special times with the child, makes that a much more manageable exercise, and those matters I think ultimately tip the scale in favour of the father's application.

24. There is an application for costs in these proceedings, two sets of costs: firstly, the costs of the proceedings themselves, and secondly, the cost of Ms D's attendance at court yesterday. Ms D's attendance at court yesterday is agreed at $950.40 and the issue is how that should be met between the parties. The criteria for costs orders are set out in section 117(2A) of the Family Law Act. The section commenced with the presumption that costs do not follow the event in family law matters; however, if there are circumstances that justify in making an order, then the court has the power to make an order and the relevant matters are then set out in section 117(2A). Those that seem relevant to these proceedings are the financial circumstances of the parties to the proceedings, the conduct of the parties in the proceedings generally and matters the court considers relevant. The other criteria are not particularly met.

25. The major difficulty in this case has been brought about by the extent of the father's initial application.  After a long process that had seen the court have some 50 documents already on the file, extensive orders were made relating to arrangements for the care and welfare of the child, and four and a half months later the father brought an application seeking to dramatically change those and to achieve an equal shared parenting arrangement.  He retreated from that position only in April of this year, well into the issues that relate to the proceedings and then the matter was fought on a narrower basis than that. 

1. Each party has been somewhat successful in relation to the issues that have been fought about.  Neither has been wholly unsuccessful, neither has been wholly successful, but as I say, the matter seemed to have been aggravated significantly by the original demands for the father in his original application.  His financial position is significantly stronger than the mother's although both of them are comparatively weak.  He has some capital resources of about $80,000 net, the mother has none.  He has employability.  The mother is in receipt of social security for her survival and that of the child.  The father pays some modest child support. 

2. In all of the circumstances I am of the view that the father should be responsible to meet Ms D's expenses at court and that he should make a contribution towards the mother's costs, not in the sum sought but a substantial contribution, having regard to the issues as they commenced and the eventual outcome. 

I certify that the preceding () paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DECK & POORS