Earle and Quinnell

[2017] FCCA 1219

FEDERAL CIRCUIT COURT OF AUSTRALIA

EARLE & QUINNELL [2017] FCCA 1219

Catchwords:
FAMILY LAW – Interim parenting orders.

Applicant: MR EARLE

Respondent: MS QUINNELL

File Number: ADC 2398 of 2016

Judgment of: Judge Mead

Hearing date: 1 May 2017

Date of Last Submission: 1 May 2017

Delivered at: Adelaide

Delivered on: 1 May 2017

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Lee Kelly Legal

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Angela Ferdinandy Solicitor

ORDERS

So the order will be:

1. That during the period of the adjournment, X spend time with his father:

   (a)On Tuesday of each week in term 2, 2017, from the conclusion of school to 7pm with that time to increase in term 3 of 2017, such that it conclude at the commencement of school on the Wednesday morning.

   (b)On Saturday, 6 May 2017, from 9:30am to 9:30am on 7 May 2017 and each third weekend thereafter between the same times.

   (c)On Saturday, 13 May 2017 from 9:30am to 6:30pm and each third weekend thereafter between the same times.

   (d)On Saturday, 20 May 2017 from 9:30am to 6:30pm and each third weekend thereafter between the same times.

   (e)From 9:30am on 8 July – this is during the school holidays 2017 - to 3:00pm on 9 July 2017.

   (f)From 5:30pm on 15 July 2017 to 5:30pm on 16 July 2017.

   (g)From the commencement of term 3, 2017, the time referred to in paragraph 1(b) hereof extend to 3:00pm on the relevant Sunday. 

   (h)From the commencement of term 3 in 2017, the time referred to in paragraph 1(d) hereof extend to 9:30am on the relevant Sunday.

   (i)During the October 2017 school holidays, on 7 October 2017 to 5:30pm on 8 October 2017.

   (j)During the October school holidays in 2017 from 9:30am on 12 October 2017 to 5:30pm on 13 October 2017 and we will come back during that time.  

2. That the time provided for in paragraphs 1(b), 1(c) and 1(d) hereof be suspended during the July and October 2017 school holidays.  That keeps the Tuesdays going.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2398 of 2016

MR EARLE

Applicant

And

MS QUINNELL

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court today with the parties remaining in dispute as to parenting arrangements for X.  The nub of the matter is the concern of the mother, who is a protected person under an intervention order, as to the capacity of the father to empathise with X, such as to pick up on, if you like, issues that are indicators of how X feels, what he is looking for and to emotionally support him. 

2. There is not a great deal of issue as to the father’s capacity to physically care for X, although it would be helpful, I agree – and this is raised in the report of Ms H – for a communication book to be shared so that those sorts of matters can be communicated.  Ms H recommends that such a communication book would be helpful.

3. The current order with respect to X’s time with his father is that of 29 August 2016 which provides for X to spend time with the father on each alternate weekend from the conclusion of school Friday to 6:30pm Saturday, and on the intervening Tuesday from the conclusion of school to 7:00pm. 

   RECORDED  :  NOT TRANSCRIBED

   That was varied on 22 November last to provide for X’s time with the father to occur during school term time, from the conclusion of school to 7:00pm on a Tuesday and on Saturdays from 10:30am to 6:30pm.  There was provision then in relation to the Christmas holidays – which is no longer relevant – and Christmas Day. 

4. Since then, there has been more helpful information filed in the Court,  firstly from a psychologist Ms Y of Headstart in relation to an assessment of the father’s psychological wellbeing and presentation and secondly a Family Report provided by Ms H. That report involved interviews with each of the parties and observations of X with each of his parents and also with his paternal grandparents. Ms H also obtained information from X’s school report from his 2016 teacher at (omitted) and from the school counsellor, as well as from X’s brother, A – his older brother - who is the mother’s child from another relationship.

5. The father is seeking to extend the time that X spends with him, such that from now – which is the beginning of term 2, 2017 – X spends time with him from after school Tuesday to the start of school on Wednesday morning, and on alternate Saturdays from 9:00am or prior to the commencement of any sporting activity to 10:30am Sunday.  He also seeks gradual increases, such that the time moves from 10:30am Sunday to 12 noon Sunday, then to 3:00pm and 5:30pm each such visit. He seeks the time to commence on 13 May.  He also seeks time on the intervening Saturdays from 9:30am or prior to sport until 5:30pm.

6. He proposes during the July 2017 school holidays that X’s time with him be from 7:00pm on Tuesday to 7:00pm on Wednesday of each week – a 24 hour period from 7:00pm Friday to 5:30pm Sunday each alternate weekend and from 9:30am or prior to the commencement of sport to 5:30pm Saturday in the intervening week.  He proposes that in term 3, 2017, time occur each week from after school Tuesday to the start of school on Wednesday and from after school Friday to 5:30 Sunday each alternate weekend.

7. The mother’s proposal involves a slower increase of X’s time with his father.  She proposes that from now until the beginning of term 3, X’s time with his father occur on Tuesdays from after school until 7:00pm as it currently does, and then on a three week rotation, such that in week 1, the time occurs for a 24 hour period overnight, then in week 2 on Saturday during the day only and then in week 3, not on the weekend at all but rather on a Thursday from after school until 7:00pm in circumstances where she submits that otherwise X does not spend any uninterrupted weekend time with her.  She has also a proposal for X’s time with the father as and from the commencement of term 4, 2017.

8. In relation to school holidays, in paragraph 17 of her affidavit filed on 24 April, she proposes that on days when X’s time with the father starts at the conclusion of school, it be extended to commence at 9:30am on that day and on the days when the time concludes at 9:30am, it be extended to 5:30pm.  Both parties are agreed on an increase in X’s time with the father.  What they are not agreed on is as to the rate of that increase.

9. Ms Lindsay of counsel for the father directed the Court to the report of Ms Y filed in the Court on 3 February.  The report does refer – although not necessarily something that it was asked to the issue of whether her diagnosis of the father would have any bearing or impact upon his parenting capabilities.  She refers to the fact that many of her clients are parents who have autism spectrum disorder and that they are very good parents.  In her report she said that Mr Earle did not meet any formal diagnosis.

10. Important in that report was the material on page 8 of 13 pages of the report, under the heading, “Deficits in developing, maintaining and understanding relationships ranging, for example, from difficulties adjusting behaviour to suit various social contexts to difficulties in sharing imaginative play or in making friends to absence of interest in peers”.  Ms Y was of the view that criterion was met by the father.  She referred to him always having struggled with maintaining friendships, not having any friends with whom he currently has contact, allowing friendships to dissipate, not maintaining one friend that he did have at high school, feeling that he associates best with people who have similar academic interests, not keeping up friends from university and not believing that friendships are important to him, rather valuing family more.

11. He did comment to Ms Y that he felt that he may not value friendships enough.  His mother expressed her belief that he was content in doing what he enjoys and if he feels he has connections, he is happy to be by himself.  That is of some concern in terms of his ability to appropriately ensure that X interacts at a level that is appropriate for a young boy of X’s age.  He was born on (omitted) 2009, so he will be eight years old in a couple of months’ time and of course socialisation is a very important part of X’s life at this particular time.

12. In Ms H’s report, she had discussions with X as to what he thought about the matter.  At his age, his preferences are not necessarily definitive of what should happen but he told Ms H – and this is set out on pages 4 and following of the actual report – that he understood that he was there to talk about the time that he spent with his parents.  He told Ms H that he visited his father on Saturdays and Tuesdays after school and he reported that he liked it how it was.

13. He was asked whether he thought he might be ready to have an overnight stay and he reported “in three weeks” and suggested he have an overnight stay with Mr Earle once every three weeks from Saturday morning until Sunday lunchtime.  He said he thought that was enough because he missed his mother and A and he wanted to keep Tuesday visits the same.  He said he did miss his father sometimes but missed his mother and A more.  He had referred to some difficulties he had being left by his mother at school.  Those difficulties were confirmed by the school where there was observations of some difficulties experienced in X separating from his mother.

14. X outlined to Ms H the activities he enjoyed with his mother and said he thought overall that A was a good big brother.  He also outlined to her activities that he enjoyed with his father.  He told Ms H that he mostly related well with his father but he did not like his father getting cross.  He liked going to the park and playing a miming game with his grandparents but said he thought he related better to his mother than his father.  He said this was because he always did more things with her and mainly, if he had worries, he would tell his mother or A but if he did not tell them, he would tell his father.

15. X told Ms H that he enjoyed school and talked about the subjects that he enjoyed.  He explained to Ms H his perception of A’s relationship with Mr Earle during the parties’ relationship, where he reported that, “Dad was quite mean, said A was stupid, yelled at him and kicked him” and he also talked about his father yelling at his mother, which X said made him feel sad and scared.  His mother apparently yelled as well but he thought it was mainly his father and he was sad that his parents were fighting.

16. He said he had nightmares sometimes and slept in Mum’s bed at night on occasions, but thought if he spent a sleepover at his father’s home he would probably sleep in his own bed and wake his father if he had a bad dream.

17. He perceived according to Ms H that he saw his paternal grandparents enough and that he liked them visiting at his father’s house, but he did not want to sleep at their house.

18. He was observed in the company of his parents (I am now on page 6 of the report) and he impressed as happy and relaxed and communicating freely when he was engaged in play firstly with his father and then his mother and his grandparents, and the next day with his mother.

19. Ms H described the father as being quietly spoken with X.  X chatted freely during the play and he enjoyed the play and the music.  He noted that when the paternal grandparents arrived, they greeted X warmly but no affection was shared.  He subsequently enjoyed the games that he played with his grandparents as well.

20. When he attended with his mother, he also played games with her.  They laughed and chatted which, of course, had also occurred with his father and grandparents.  He was apparently a bit tired at the second appointment because he had had a slightly later night than usual the night before.

21. Ms H also spoke with A, who described from his point of view how life had been in the family home.  There were also interviews with both of the parents.

22. At page 17 of Ms H’s report under the heading “Conclusions and Recommendations” she said that X presented as sharing a strong emotional attachment to his mother and his brother, A.  She said that was evidenced in his reports that he missed them when separated, sought their comfort when scared or worried and enjoyed the activities shared. 

23. She said that he also reported positively on his time spent with his father but that he generally referred to activities shared, rather than emotional closeness.  She also noted that the father reported a preference for week about care. His position now, since reading this report, has changed.  She said she noted that father’s position because according to her he expressed his belief that it was important for X to experience the arrangement as fair, rather than the father reporting that he was missing X or that he wanted to be involved in all aspects of X’s life. The father’s expressed concern goes back, in some ways, to the issues referred to in the report from Headstart.

24. Ms H noted that the father’s ability to share a meaningful relationship with X was limited by the current arrangements, but she noted that there was a need to prioritise X’s emotional wellbeing, particularly given concerns in relation to separation anxiety and the father’s awareness of and ability to be appropriately responsive to X’s emotional needs.

25. She referred, on page 19 of her report, to a possibility of future arrangements and said, at about point 2:

    Regarding future arrangements, in view of X’s preference to commence overnight stays slowly, once every three weeks between Saturday morning and Sunday lunchtime, a cautious approach is advised.  One option is to accept X’s preference, which could be trialled over the course of one school term.  In subsequent school terms, this could move to one overnight stay on alternate weekends with an additional overnight stay introduced during each school holiday period to a maximum of three overnights.  Continuing visits after school on Tuesday between 3.30 and 7pm on a weekly basis is advised at this time and consideration might be given to introducing an overnight stay on intervening Tuesdays in 12 to 18 months, dependent on X’s wishes and his progress with the arrangements.

26. She expressed a view that he also needed to be given the opportunity to telephone or Skype either parent according to his wishes and of course, what X said in regard to that to Ms H was that he had no doubt that if he wanted to contact his father, his mother would facilitate that.  She considered an alternative option, being to immediately commence one overnight stay on alternate weekends, Saturday morning until Sunday lunchtime, gradually extended to 6:30pm handover after four visits and an additional overnight stay introduced each school term, as described above, but said she preferred option 1.

27. Taking all of those matters in account view is that this is a child who loves both of his parents but at this stage, perhaps because of his primary parenting dependency on his mother and perhaps also because of his father’s particular personality, he feels emotionally closer to his mother than to his father.  This is not to say that he does not enjoy the time he spends with his father.

28. I find is that if this time is going to work well for X, the increase in time should be at a rate that X feels comfortable with, otherwise we may very well end up in a situation where X’s preparedness to attend at his father’s and spend time with his father may dissipate if he becomes distressed about being away from his mother too long.

29. What is pleasing is that a recent agreement between the parties during the school holidays for overnight time seemed to work well.  The mother, in her affidavit, referred to X expressing pleasure at the activity undertaken with the father during the April holidays, which he enjoyed.  She said that on occasions, X has said that he is bored. It was pleasing to read that the father took that on board and facilitated an exciting and interesting activity for X during the holidays.

30. I find that the time should progress reasonably slowly.  I understand the father’s frustration but the mother’s proposal – or something similar thereto – seems to me to have a significantly greater prospect of working well for X, extending his time with his father at a pace that he can manage and therefore, in the long term, being far more successful.  I am only going to make orders up until the beginning of term 4 and then we will come back and have another look at the progress.

31. I am going to increase the Tuesday night time to overnight in term 3, to see if that is workable from X’s point of view but otherwise, move cautiously.  The reason I am extending it on the Tuesday rather than on the weekend time is because it enables the father to have the capacity to be involved in collecting X from and taking him to school.  Extended weekend time does not provide that capacity.

    RECORDED  :  NOT TRANSCRIBED

32. So those Tuesday orders continue through, plus there are two overnight periods in the school holidays.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date:  7 June 2017