EAGON & MCGOWAN

[2016] FamCA 858

FAMILY COURT OF AUSTRALIA

EAGON & MCGOWAN [2016] FamCA 858

FAMILY LAW – CHILDREN – Where the mother has an adverse effect on the child’s relationship with the father – Where a change of residence order is made to place the child with the father – Where the single expert supports that change of residence – Where the mother greatly improves her parenting – Issue whether the matter should be finalised by the court – Where the child needs certainty and security – Where the expert believes the child’s clear understanding of residence with his father will improve the time spent with the mother – Decided that the matter should be finalised –  Issue of what spend time with and communication order should be made – Where the child expresses a wish to spend more time with his mother – Where the father has made responsible decisions in the best interest of the child – Where contact with the mother may undermine the relationship with the father – Decided that the orders need to be defined – Issue over what time period of time the orders should be implemented – Order for the child to live with the father – Order that the child spend time with the mother – Order that the time with the mother gradually increases

FAMILY LAW – COSTS – Application by ICL – Where the mother is legally aided – Where the father is entirely financially responsible for the child – Where the father had the cost of litigation – Where the father contributed to the cost of the single expert – Where a costs order would impose financial hardship – Ordered that the application is declined

Family Law Act 1975 (Cth), s 117

APPLICANT: Mr Eagon

RESPONDENT: Ms McGowan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: NCC 426 of 2014

DATE DELIVERED: 29 September 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 26 - 28 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Jennifer Blundell & Associates

COUNSEL FOR THE RESPONDENT: Mr Murray

SOLICITOR FOR THE RESPONDENT: Catalyst Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Quinn

Orders

1. The mother shall spend time with K born … 2004 (“the child”) as agreed in writing but in default of agreement as set out in the Orders below:

1.From the date of these Orders until the conclusion of the 2016 school year:

1.1Each alternate Sunday from 9.00 am until 4.00 pm.

2.During the Christmas school holiday period in 2016/2017:

2.1From 12.00 pm until 6.00 pm on 25 December 2016;

2.2For three periods of two days and one night not less than 7 days apart and failing agreement otherwise, as follows:

2.2.19.00 am on Saturday 7 January 2017 to 6.00 pm on Sunday 8 January 2017;

2.2.29.00 am on Saturday 14 January 2017 to 6.00 pm on Sunday 15 January 2017;

2.2.39.00 am on Saturday 28 January 2017 to 6.00 pm on Sunday 29 January 2017.

3.In 2017, commencing on the first weekend in the first term of 2017:

3.1During school terms, each alternate weekend from 9.00 am on Saturday until 6.00 pm Sunday, with the mother to ensure that the child attends his weekend sport as advised by the father regarding time and venue;

3.2On Mother’s Day from 10.00 am until 6.00 pm.

3.3During each school term holiday period for three days and two nights, and failing agreement otherwise, from 10.00 am on the middle Saturday until 6.00 pm on the following Monday;

3.4In the Christmas school holiday period 2017//2018 from 12.00 pm on 24 December 2017 until 12.00 pm on 25 December 2017;

3.5For three periods of three days and two nights, with not less than seven days between each period, and failing agreement otherwise:

3.5.1From 9.00 am on Friday 5 January 2018 until 6.00 pm on Sunday 7 January 2018;

3.5.2From 9.00 am on Friday 19 January 2018 until 6.00 pm on Sunday 21 January 2018; and

3.5.3From 9.00 am on Friday 26 January 2018 until 6.00 pm on Sunday 28 January 2018.

4.Commencing in 2018 school year and thereafter:

4.1During school terms, each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, with the mother to ensure that the child attends his weekend sport as advised by the father regarding time and venue;

4.2For one week of each term holiday period being the first week in odd numbered years [from 10.00 am Saturday to 10.00 am the following Saturday] and the second week in even numbered years [from 10.00 am on the middle Saturday to 10.00 am on the third Saturday];

4.3For two weeks in the Christmas school holiday period being the first two weeks [from 9.00 am first Saturday to 9.00 am third Saturday] in years where the holidays begin in an even numbered year; and in holidays commencing in odd numbered years, the two weeks ending at 9.00 am on the last Saturday before the new school term commences [from 9.00 am on the third last Saturday to 9.00 am on the last Saturday of the holiday period].

5.On the following special occasions commencing in 2018:

5.1On Mother’s Day from 6.00 pm on the Saturday prior until 6.00 pm on Mother’s Day;

5.2On Easter Sunday from 10.00 am until 6.00 pm;

5.3On the mother’s birthday from the conclusion of school until 7.00 pm on a school day and from 10.00 am until 6.00 pm on a non-school day;

5.4From 12.00 pm on 24 December until 12.00 pm on 25 December in each alternate year commencing in 2019;

5.5From 12.00 pm on 25 December until 12.00 pm on 26 December in each alternate year commencing in 2018;

6.Notwithstanding any other Order the child shall spend time with the father:

a.From 12.00 pm on 24 December 2016 until 12.00 pm on 25 December 2016 and in each alternate year thereafter [even years];

b.From 12.00 pm on 25 December 2017 until 12.00 pm on 26 December 2017 and in each alternate year thereafter [odd years];

c.On each Father’s Day from 9.00 am [time with mother for balance of period suspended].

7.At such other and/or additional times as are agreed between the parties.

8.The mother is restrained from:

8.1Attending the school which the child attends other than in accordance with Order 9.2 below or as agreed in writing between the parties;

8.2Telling the child that his brother M is not his real brother and that the father’s family are not the child’s family.

9.The mother is at liberty to:

9.1Receive [at her own expense] copies of all school reports, school photographs, notifications and other documents relevant to the child’s welfare and education, and a copy of these Orders shall be sufficient authority for her to do so;

9.2Attend events at the child’s school to which parents are usually invited, such as, but not limited to, concerts, sports carnivals, presentation nights and similar events, subject to the direction or decision of the principal of the school otherwise.

10.Each party shall:

a.Advise the other as soon as practicable in the event of a serious accident or illness of the child whilst the child is in their care;

b.Advise the other party of a change of address or contact telephone number within 24 hours of the change.

11.Each party is restrained from:

11.1Denigrating the other party or any member of the extended family of that party in front of, or in the presence of the child, or permitting any other person to do so;

11.2Questioning or interrogating the child about his time with the other parent;

11.3Using a form of corporal punishment on the child;

11.4Consuming alcohol to excess or being under the influence of any prohibited drugs in the presence of the child or whilst spending time with the child.

12.Unless specifically stated in these Orders, changeover shall take place at the home of the maternal grandmother unless otherwise agreed on any particular occasion.

13.The child shall arrange for the child to see the Independent Children’s Lawyer at a mutually convenient time as soon as practicable to have these Orders explained to the child and for the Independent Children’s Lawyer to answer any questions he may have.

14.Each party has leave to provide a copy of these Orders and the Reasons for Judgment to their respective treating psychologists.

THE COURT NOTES THAT

(A)On 27 September 2016 during oral evidence (cross examination) in this Court, Dr R recommended that the parents work together with the psychologist for the child and the father, Mr B.

(B)The mother intends to seek advice from her treating psychologist about how best to initiate that process of therapeutic co-operation with Mr B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 426 of 2014

Mr Eagon

Applicant

And

Ms McGowan

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is a matter that came before me for final hearing for the three days commencing 26 September 2016. The proceedings related to parenting orders for one child, K, aged 12 years and two months. He is in Year 6 at primary school.

Short History of Relevant Events

1. The last three years have been tumultuous for this child. In mid-2013, he began to withdraw from the relationship between himself and his father, for reasons which relate to the relationship between the child and the mother rather than deficiencies in the father.

2. In March 2015, there were orders made for the child to change residence to live with his father and to spend initially no time, and subsequently very limited supervised time with the mother.

3. The matter was then to be brought back for final conclusion. The father has worked long and hard for the past 18 months, not only to restore the relationship between himself and the child, but to teach him some of the necessary elements of independence and to set limits in a kind but firm way on the child’s behaviour.

4. The father also maintained the relationship for the child not only with the father’s younger son, M, but also the mother’s older daughter, C.

5. There has been a Single Expert Report by Dr R which gave rise to the decision to change the child’s residence in March 2015. This was supported by earlier indicators in the Family Report of 2014 that there were real problems for the child in his relationship with his mother.

The Efforts of the Mother

1. By the time the matter came before me, the mother had, to her great credit, embraced what she learned from reading the Single Expert Report, and did everything that was recommended that she do to effect change for herself and the child.

2. She consulted a psychologist. She amplified her own life by further education and employment. She reflected on the impact of her own anxiety on the child and the fact that it had induced anxiety in him. She came to understand that simply accepting complaints from the child, and then acting on them, had been counter-productive.

3. It was an impressive effort on the mother’s part. She came to court with a new position;  that is, that the child continue to live with his father, and for the father to have sole parental responsibility for him, with provision for consultation prior to final decisions being made by the father. It must have been a difficult decision to make, and I am satisfied it was child-focused.

4. Accordingly, on the first day of hearing, orders were made by me to that effect, and what remained for determination was what time and communication there would be between the child and his mother. He has, since June of this year, begun to have unsupervised time, but still for a very limited period of hours, fortnightly.

Issues for Determination

1. The issues became:

   1)What orders for time and communication should be made;

   2)Whether or not the matter should be finalised in the court; and

   3)In respect of the orders made, over what period of time should they be graduated.

2. In relation to finalising the matter, I am satisfied that it does need to be brought to conclusion. The child himself needs, first of all, to understand that his parents have agreed that he will live with his father, and that his father will make big decisions, and that he will keep the mother advised of what is happening in the child’s life. That should bring a degree of certainty and security to his life.

3. Dr R said this in his oral evidence, given during the course of these proceedings:

   I believe that if the child has a clear understanding that his residence is with his father, then more time with the mother will be beneficial.

4. I give weight to that opinion. I also take into account the evidence of the Single Expert, that the child’s behaviour is reflective of damaged self-esteem which is not fully repaired at this time.

5. The child is, whilst he loves his younger brother very much, confronted by the fact that his father and that child’s mother have an excellent, flexible, easy relationship, whereas his mother and father do not.

6. However, finality comes with a necessity in this matter to speculate to some extent. The father would prefer that there be some progression, but in a limited way. The mother would like to see graduated and increasing time to reflect the fact that the orders are designed to operate for almost six years until the child is 18. That creates, of course, the issue of orders generally being made with a view to minimising the possibility of the parties having to come back, and there being further litigation.

7. I have come to the conclusion that it is better to set out a graduated pattern of time which does reflect the six-year period of operation, such that if there is a problem, the parties would have to come back perhaps in relation to contravention, rather than setting up a situation where the mother would come back to court asking for more time, with all of the inherent preparation, further report and affidavits involved in that process. For that reason, the orders I make will be final orders.

8. In relation to the central issue, which is time, the Independent Children's Lawyer, who very recently saw the child, reported to the court that the child presented as sad and expressing a wish for more time with his mother, even a return to living with his mother. He also said that he was happy living with his father. I take into account that in 2014, in the Family Report, the Family Consultant noted that if the child was moved to live with the father, he would likely be highly distressed at the loss of the relationship with his mother.

9. The Single Expert reflected on the fact that the mother provided a very high level of care and loved the child very much; that this child has experienced a sense of loss in relation to his mother was entirely predictable. He has a good relationship with his 22 year old sister and her partner Mr D. It is not surprising that he wants to be more a part of that household.

10. He may also be feeling a sense of unfairness that over the last three years. He first of all entirely lost the relationship with his father, and then without warning to him, lost the relationship with his mother.

11. I accept the submission made on behalf of the father that the father has made thoughtful and responsible decisions in the interests of the child and the claim that he would continue to do so. For instance, maintaining an independent relationship between the child and C, 

12. The child’s expectation of being fully indulged in whatever he wants to do made the transition difficult for the father. It has taken more than a year to implement regimes to withstand the constant testing of the limits by the child. Creating routine to moderate the child’s behaviour at home and at school has been no easy task. I think it is likely the father is cautious and would continue to be cautious, perhaps even over-cautious in expanding time (with the mother) on the basis of a very understandable fear that over-indulgence of the child will once again lead to undermining of the relationship between father and son.

13. It is for that reason that the orders need to be defined by me and not through any lack of effort by either of the parents to try and fully resolve the matter themselves.

14. The child himself wishes for more time with his mother, and for a more normal life. Orders will hopefully generate certainty for him, and also hope that as time progresses; his life will look more like the lives of his peers at high school.

15. I was concerned, reading paragraph 69 of the father’s affidavit that the child’s questions about spending more time with his mother, and being able to make his owns decisions at age 18 meant that there may be an undermining process operating. However, having heard the evidence of Dr R, I am confident that the questions arose with the child openly asking his father for reassurance that his mother would play a greater part in his life, which is a tribute to the present relationship between the child and his father.

16. The questions reflect the child’s feeling of deprivation of his mother’s company, and wanting to enjoy again the activities that they had been involved in in the past. Of course, there is a risk, given the anxious state which the child was reduced to, that he may again act out or struggle. However, four things are reassuring in that regard:

    (1)That the mother acted on the advice of Dr R so thoroughly and comprehensively; 

    (2)That the mother conceded parental responsibility and residence to the father; 

    (3)That for the eight years post-separation, the mother and father did facilitate a relationship for the child with each of them, and, whilst not perfect, had a working arrangement in place; and

    (4)That the mother must understand, because she has clearly had sound and consistent legal advice, that a return by her to unchallenged acceptance of complaints about the father and the school, indulgence of the child sleeping in the same bed, allowing him his way in every respect which retarded his independence and undermined proper limits on what should be expected for his own self-care, would result in contravention and, likely, the abrupt cessation of time entirely.

17. The person most adversely affected would be the child. His rather fragile self-esteem would not survive it. I do not consider that the mother would invest so much time and effort into restoring a relationship, only to lose it.

18. For those reasons, I have defined the time, graduating in this way:

    In 2016, an extension of daytime;  in the coming Christmas holiday,  a couple of incidents of overnight time; in 2017, regular alternate weekends of one overnight and some holiday time; and, commencing in 2018, what might be considered as more common, although not entirely expansive, weekend time and holiday time. There are also all of those things which were agreed between the parties in the document which I will make exhibit 1, titled ‘The Father’s Minute or Order’ incorporated into the orders I have made.

Cost Application Of The Independent Children’s Lawyer

1. The Independent Children’s Lawyer has made an application for a contribution to his costs in these proceedings. The court is always assisted by the hard work of Independent Children’s Lawyers, and, most particularly, in a case like this, with a 12 year old child, who has had significant disruption in his relationships with each of his parents, and in his life. It was of assistance to the court to hear what he had to say, in the context of the expert evidence and submissions.

1. When considering such an application, the court must take into account the matters set out in s 117 of the Family Law Act 1975 (Cth). In this matter, the mother had a grant of legal aid and is not compelled to contribute. That leaves the father.

2. On the state of the evidence, which is not complete, but probably sufficient, the father is entirely financially responsible for the child, and is likely to be, at least in the short term future, although the mother may become employed and be able to contribute.

3. As significantly, if not more, the father has had the cost of this litigation, and, in particular, has borne the $6000 contribution to the preparation of the Single Expert Report, which was invaluable in assisting the parties, and in finally determining the matter.

4. I am satisfied that, although the father is employed, to make a costs order would impose a financial hardship on him and would not be an adequate reflection of the efforts that these parties made with the assistance of their lawyers to resolve the matter without litigation.

5. I decline that application.

6. I make orders accordingly.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 29 September 2016.

Associate: 

Date:  7 October 2016