Dionett and Reynes (No 2)

[2013] FamCA 1054

FAMILY COURT OF AUSTRALIA

DIONETT & REYNES (NO 2) [2013] FamCA 1054

FAMILY LAW – INTERIM PARENTING – Where the parties both seek to vary the current interim parenting arrangements – Best interests of the child – Where the mother agrees it is important for the child to maintain and meaningful relationship with the father – Where the child’s overnight time with the father is extended and that time spent with the father at Christmas is to include overnight time.

Family Law Act 1975 (Cth)

APPLICANT: Ms Dionett

RESPONDENT: Mr Reynes

FILE NUMBER: SYC 1686 of 2012

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 19 December 2013

REPRESENTATION

THE APPLICANT IN PERSON: Ms Dionett

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. That Order 2 of the Orders made on 8 February 2013 are varied as follows:

   (a)   from the commencement of school in 2014, the child shall spend time with the father as follows:

   (i)Each alternate weekend from after school on Friday until 6.00pm Sunday with the Father to collect the child from school and deliver the child to the Mother at [Suburb B] at 6.00pm Sunday.

   (ii)Each Wednesday from after school until 6.00pm with the Father to collect the child from school and deliver her to the Mother at Suburb B.

2. That the time C is to spend with her father at Christmas 2013/2014 shall be as set out in the case outline of the father, set out in Annexure A.

3. The substantive application is stood over for call over only on 4 February 2014 at 10am.

4. That the father shall ensure that the photograph of the mother and the child is displayed in the child’s room at all times when the child is spending time with the father .

5. That when the child is spending time with her father, the mother shall have telephone contact with the child at 5pm on Saturdays.  For that purpose, the mother shall telephone the child on the father’s contact telephone numbers provided by him and the father shall ensure that the child is available to take the mother’s phone call.

NOTATION:

1. It is otherwise noted that whilst the child is spending time with her father, the father will facilitate the child having additional telephone communication with her mother if the child expresses a wish to do so.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dionett & Reynes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1686 of 2012

Ms Dionett

Applicant

And

Mr Reynes

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application to vary the current interim parenting arrangements that take place in relation to the child of the parties.  C (“the child”) was born in 2008, she currently lives with her mother and spends time with her father every Tuesday from after day care until 6.30 pm, from Saturday 10 am until Sunday 5 pm, then the following week on Sunday from 10 am to 5 pm., which is then repeated. 

3. The child commences school next year, and the effect of that arrangement will be that the child would spend three days out of the four weekend days with her father and only one with her mother.  Everybody agrees that that is not an appropriate arrangement to continue as an interim arrangement.

4. The parties, however, disagree as to what to do about that.  The father’s proposal is that the child have an extended period of time with him each alternate Saturday commencing at 6.30 pm on Friday extending through until Sunday afternoon, effectively giving him every second weekend, which would enable the child to spend the alternate weekend with the mother.  The mother’s proposal is to reduce the time that the child spends with her father by eliminating the alternate weekend whereby the child spends the Sunday with her father. 

5. The other issue before the court is what times that the child is going to spend with the father over Christmas.  The parties generally agree on the days on which the child is to spend with the father.  The disagreement is whether, when those days are consecutive, the time should be overnight or not.  The father submits there should be; the mother said there should not be.

6. The task of the court ultimately is to act in the best interests of the child.  In doing so, the court has to do its best to ensure that the child has a meaningful relationship with both parents. 

7. The child is clearly closely attached to the mother, who is her primary carer.  There is no suggestion by the mother that the current arrangement whereby the child spends from early Saturday morning to late Sunday afternoon every second weekend with the father is inappropriate.  Indeed, the mother says in her evidence that she agrees it is important for the child to maintain a relationship with the father. 

8. The parties were seen by a family consultant for the purpose of the Family Report which was dated 22 May 2013.  This was before overnight time with the father commenced.  The family consultant said:

   48.During separate and informal observations with her father and informal observations with her mother, [the child] was comfortable, playful and warm with each parent.  [The child] sought her father out in the waiting area and took his hand to go to the childcare room.  In observations of the child with [Mr Reynes], he was warm and responsive, joining in with the child’s focused and imaginative games.  She was responsible to [Ms D], who was friendly and encouraging towards her.

9. Ms D is the father’s new partner. 

10. Later, the family consultant said:

    51.[The child] appears to be a confident, imaginative and articulate child who is developing well according to childhood norms.  Both her parents are able to engage with [the child] warmly and are responsive to her in meeting her needs.  Both parents appear sensitive and thoughtful about providing guidance and some structure for the child albeit with different parenting styles.  [The child] appears to have a close relationship with both of her parents.

11. The family consultant noted that it was of concern to her that the mother has not been able recently to manage her psychological state when caring for the child.  She also described the child viewing the father positively and wanting to spend more time with him, and in the family consultant’s view, a graduated plan increasing her time with him is indicated.  I draw from that, that the child has a beneficial relationship with both parents and that, in order to maintain her relationship with the father, it is important for her to spend overnight time with him and that it was the view of the family consultant that that time should gradually be increased.

12. An important consideration required to be taken into account is the exposure of a child to family violence, which includes not just physical violence but psychological abuse as well. 

13. There was an incident prior to Christmas 2012 that ultimately led to an apprehended violence order being made in favour of the mother against the father.  It appears that the child viewed this. 

14. It is the mother’s case that, as overnight time has commenced, the child has not coped well.  The mother said on the first overnight visit which occurred on 20 April 2013, the child burst into tears when she was collected by her mother and said, ‘I missed you’.  This is not entirely surprising, as a change to a routine of a child that age and a first overnight visit is likely to be somewhat challenging for them. 

15. Essentially, the mother said the position has remained the same.  Her response to this is twofold.  The mother practices what she describes as attachment parenting, the purpose of which, amongst other things, is to create a close bond between the parents and the child.  To that end, immediately upon separation, as the father had not agreed to this approach to parenting, the child commenced to sleep in the same room as the mother and frequently in the same bed. 

16. In order to cope with what is described as the difficulties, the child insists that her mother stay with her while she goes to sleep, makes her promise that she will stay with her all night and not get up.  The child even insists that the mother puts on her pyjamas so that she does not have to get up to put them on later.  The child tells the mother she is too scared to sleep on her own and regularly asks the mother whether she will be staying with her while she sleeps so she will not get scared.  The mother says this has not been a problem in the past but now that the child wakes up regularly during the night and as she is there with her, it is not a problem.

17. The mother puts the difficulties that she describes with the child down to the child having viewed abuse by the father of the mother, that it continues to prey on her mind and that it is this that has caused her to feel scared and anxious about staying with the father.  To that end, she has looked into providing professional help.  She attended a three week parenting group in May to June this year where she was taught strategies to encourage children to express their emotions.  In November 2013, the mother attended a session with a counsellor which she said was to identify ways to help the child feel secure at her overnight visits and overcome her anxieties.  She said:

    They advised that [the child] was anxious about overnight stays at [Mr Reyne’s] as she did not feel secure with him due to her witnessing him to be abusive to me.  They recommended implementing a plan to help her build a sense of security which includes…

18. And then one of the matters reported was:

    Let her know what’s not okay - no hitting, what [Mr Reynes] does is wrong and she is to let me know if he ever hurts or hits her.

19. I understand from the mother’s evidence that she had that discussion with the child. 

20. Thus, in short, the mother describes the child as a child who has witnessed family violence, is scared it will occur to her if she is on her own and that the overnight time is already causing her stress and anxiety which will be worsened if overnight time is increased.  On the other hand, the father describes the child as enjoying her time with the father, she has her own room at his premises and describes no difficulties whatsoever about the time that the child spends with him and says that the child has often said to him that she wished to stay with him for longer.

21. It is not possible on an interim application of this kind to determine which of those two competing views is correct.  Indeed it is perfectly possible that both parents might be correctly describing the comments that the child is making. If that is the case, this would mean that the child has been placed in a most invidious position by her parents and is doing what she can to please both.

22. The position is that something has to be done about the current orders because the child needs to go to school next year and everybody agrees the orders need to be changed.  Everyone also agrees that it is in the child’s interests to continue to see the father and the mother’s evidence is that she accepts that overnight time is appropriate but she says it should be limited to one night at a time, not two.  She agrees that the child seems to be a confident, well adjusted young girl.  From what can be drawn from the family consultant’s report she seems to have a good relationship with the father in all of the circumstances.

23. There is concern that was first raised by the family consultant that the mother is, in fact, not able to manage the break-up as well as possible.  It is the case of the father that if there are difficulties about the child spending overnight time with him, they arise from the mother’s response to that and not from the child’s own difficulties.  Thus, it is said encouraging the child to sleep with the mother, and the response to what the mother describes as the child’s difficulties with the overnight time (by the mother sleeping with the child as the child’s wishes and requires) is making it harder for the child to spend time away from her mother with her father and is not assisting the overnight time.

24. It is also suggested that advising the child that what her father does is wrong, even if by reference to the incident prior to Christmas last year, and that the child is to let her mother know if he ever hits or hurts her is to reinforce a negative aspect of the parents’ relationship to the detriment of the father.  As I understand the position, there has never been any suggestion of any threatened violence by the father towards the child.  There is force in those submissions.  I appreciate that the mother’s evidence says that her approach to the child reflects her views as to what are appropriate parenting arrangements, and that she is doing so on advice.  Notwithstanding that, the mother does not seek to change the present overnight time arrangement.

25. The better course is for the child to spend approximately the same amount of time with the father as she now does.  These are interim orders and significant changes to the status quo ought not be made unnecessarily.  Thus neither a significant increase nor a significant decrease in time that she spends with the father is desirable. 

26. The task then is how best the maintenance of that time may be achieved.  The only realistic way is to increase the overnight time so that the child commences to spend time with the father on Friday afternoon.  If he collects her from school on Fridays, that would have the significant advantage of removing one face to face changeover between the parents which is an obvious source of conflict and something to be avoided if possible.

27. It is clearly in her interests to maintain her relationship with her father and as I have found that should involve her seeing her father for at least the same amount of time she is presently spending with him.  This accords with the view of the family consultant that the child views her father positively and wants to spend more time with him and that a graduated plan increasing her time with him is indicated.  I note, of course, that that family report was written in May 2013 some five to six months after the assault that is referred to frequently by the mother’s evidence.  At least, at that stage, it was not a significant part of the child’s relationship with the father.

28. There is no real suggestion that the father is not able properly to care for and look after the child.  There is some suggestion that on occasions she has returned thirsty and hungry.  Other than that, there is no suggestion that she is not properly cared for by him or that the arrangements are not reasonably practical.  It is not suggested by her, save in one respect, that the father does not have the appropriate ability to care for the child and to promote her welfare and development.  The one aspect is that she provided the child with a photograph of the two of them for her to place beside her bed on overnight visits.  Apparently that photo is not on display because it upsets the father’s present partner.  It would be appropriate for that photo to be displayed whenever the child is staying with the father.

Conclusion

1. For these reasons therefore the appropriate order is that from the commencement of school next year the child will spend time with the father each alternate weekend from after school on Friday. 

2. There was an issue at to what time the child should be returned.  She normally goes to bed when she is with her mother at about 7 pm.  If the father provides the child with dinner, a return at 6 pm would give her mother approximately an hour to spend some time with the child and settle her down for bed.  Accordingly, the order will be return to be at 6 pm.

3. The issue then is what is to happen over Christmas.  Of particular concern to the father is the fact that his mother is visiting Australia from the United Kingdom towards the end of July and he submits it would be appropriate for the child to spend some significant time with her grandmother.  There was no suggestion by the mother that this was not appropriate. Indeed she proposed that during that time there be three consecutive days where the child spends time with her father, but no overnight time.  That is not satisfactory.  It seems not only does it send the wrong message to the child about her father in that he is not an appropriate person to spend time with overnight, but it is also not practicable. It also involves far too much contact between the parents which, as I have said, seems to be cause of significant conflict.

4. Given that there is going to be two nights spent with her father from the commencement of school, there seems to be no reason why that overnight time should not commence during the school holidays.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 19 December 2013.

Legal Associate:  

Date:  16 January 2013