Fegley and Salway (No 2)

[2016] FamCA 341

FAMILY COURT OF AUSTRALIA

FEGLEY & SALWAY (NO 2) [2016] FamCA 341

FAMILY LAW – INTERIM PARENTING – Whether the 13 year old child should spend more time with the mother – Where the child has not spent time with the mother for a considerable period – Where the child has made allegations about mother – Where the child has expressed views about spending time with the mother – Where two younger children spend time/live with the mother – Where there is a high conflict relationship between the parents.

Family Law Act 1975 (Cth)

APPLICANT: Mr Fegley

RESPONDENT: Ms Salway

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYC 6044 of 2013

DATE DELIVERED: 15 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 7 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Breeze

SOLICITOR FOR THE APPLICANT: HA Miedzinski Lawyers

COUNSEL FOR THE RESPONDENT: Mr Crawford

SOLICITOR FOR THE RESPONDENT: Crawford Ryan Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : Mr Ng

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Adams & Partners Lawyers

Orders

Pending further order:

1. The orders made 12 June 2014 which provide for the child to live with and spend time with each of the parents are discharged.

2. The child C born … 2002 (the child) is to live with the father.

3. The father is to encourage the child to spend time with the mother at times and places agreed to between the parents and evidenced in writing (email or text message will suffice provided a copy of such is retained by each parent). To this end the father is to encourage and facilitate if possible the child spending time with the mother as follows:

   (i)Commencing from the first weekend hereafter when D is with the mother, and thereafter during NSW school terms, every alternate weekend from 10.00 a.m. to 4.00 p.m. on whichever day the child is not engaged in his sporting activities.

   (ii)That all non-school day changeovers occur at the McDonalds family restaurant at Suburb J (unless it also involves the changeover of D or B in which case order (4) hereof applies) OR if the changeover time coincided with one of the children’s sporting fixtures then changeover shall occur at the location of the child’s sporting fixture.

4. On occasions when the children are not attending school or otherwise provided for in these orders changeovers shall take place at the McDonalds Family Restaurant at Suburb K when the children are in the care of the mother (and being delivered to the father ) and at the McDonalds Family Restaurant at Suburb J when the children are in the care of the father (and being delivered to the mother).

5. That the parties are to do all such acts and things and make such appointments as soon as practicable upon the making of these orders to attend upon Ms L.  For the purposes of implementation of this order the parties shall:

   a)Ensure their respective attendance on each and every appointment as scheduled by Ms L;

   b)Ensure that if the children, and in particular the child the child, are in their respective care at the time that appointments are made by Ms L for the children to attend such appointments with Ms L.

   c)The parties are to equally and promptly pay the costs of the therapy/counselling session scheduled by Ms L for the children’s attendance and the parties shall each be responsible for the payment of their own personal costs of attendance on Ms L.

6. The parties are each to inform the Independent Children's Lawyer when they have made an appointment to meet with Ms L and thereafter the Independent Children's Lawyer is to provide Ms L with a copy of the Family Report released to the parties in this matter and also the Child Responsive Memorandum when it is made available to the parties.

7. The Independent Children's Lawyer is to ask Ms L to advise the Independent Children's Lawyer should either of the parents fails to attend upon any session of therapy or counselling scheduled for the parents or the children.

8. That the children B and D spend time with the mother from immediately after school on the mother’s birthday until the commencement of school the following day in the event that the children are not otherwise spending time with the mother on a school day. If the birthday falls on a non-school day then for a period of two hours between 1 pm and 3 pm.

9. For the purposes of calculating when the weekend time during school terms is to commence after a school holiday period, the parent who spends time with the children during the first half of any school holiday period, shall spend time with the children on the first weekend after school resumes and every alternate weekend thereafter.

10. During any time that the child is spending time with the mother she is to not remove his mobile phone from him and she is to permit him to text message his father should he wish to do so. The father is permitted to respond to any text message received from the child during that period however, he is not to initiate any such text message exchange unless it is absolutely necessary.

Notation:

If the mother is in Sydney during the 2016 April school holidays it is the father’s intention to encourage the child to spend time with her from 10.00 a.m. to 4pm on Sunday 17 April 2016 noting that it is proposed by the father that changeover involving all 3 children should occur at 10.00 a.m. on 17 April 2016 being the midpoint of the school holidays.

1. Upon release to the parties of the Child Responsive Memorandum following the meeting with the Family Consultant on 20 June 2016, each party and the Independent Children's Lawyer may relist the matter upon giving 7 days’ notice to the court and to the other parties.

2. Any party seeking to re-list is to provide to the other parties a minute of the order which will be sought at the time notice is given of the request for re-listing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fegley & Salway 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 6044/2013

Mr Fegley

Applicant

And

Ms Salway

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by Mr Fegley (the father) on 10 February 2016. He seeks variation of parenting orders made 12 June 2014 in relation to the child C born in 2002 (the child).

2. The respondent Ms Salway (the mother) also seeks a variation of the parenting orders made 12 June 2014.

3. The parents have three children who are the subject of the orders made 12 June 2014. They are B born in 1998 (B), the child and D born in 2008 (D).

4. The father relied upon his affidavits sworn 10 February 2016 and 3 March 2016. He also relied on two affidavits sworn by Mr H on 28 January 2016 and 4 March 2016.  He tendered the Family Report of 30 October 2014.

5. Each of the parents moved upon hand written minutes of order sought, which were prepared to show a narrowing of issues between them. The father’s minute marked as exhibit F1 and the mother’s marked as exhibit M1.

6. The mother relied upon her Response to an Application in a Case filed 29 February 2016, her Affidavit sworn 27 February 2016, an Affidavit of Mr M sworn 25 February 2016, an Affidavit by Ms N sworn 29 February 2016, and an affidavit of Mr O sworn 26 November 2015. The mother also relied upon the Judgment of Watts J delivered 14 December 2015, the reasons of Judge Scarlett in the Federal Circuit Court dated 8 July 2014 and the Family Report dated 30 October 2014.

7. The orders sought by the father are as follows:

   1.      That the parties do all such acts and things and make such appointments as soon as practicable upon the making of these orders to attend upon [Ms L] for the purposes of implementation of this order the parties shall:

   a.Ensure their respective attendance and each and every appointment as scheduled by [Ms L];

   b.Ensure that if the children, and in particular the child the child, are in their respective care at the time that appointments are made by [Ms L] for the children to attend that they shall ensure the attendance of the children at such appointments with [Ms L].

   c.That the parties shall share equally in the costs of the fees of [Ms L] for the children’s attendance and the parties shall each be responsible for their own personal costs of attendance on [Ms L].

   2.     That the child live with the father and Orders 3 and 4 of the Orders made 12 June 2014 in relation solely to the child be suspended.

   3.     Commencing 12 March 2016 and during NSW school terms, that the child spend time with the mother every alternate weekend or whichever day the child is not engaged in his sporting activities from 10 am to 4 pm, being the weekend that [D] and [B] are also spending time with the mother.

   4.     That all non-school changeovers occur at the McDonalds family restaurant at [Suburb P] OR if the changeover time coincided with one of the children’s sporting fixtures then changeover shall occur at the location of the child’s sporting fixture.

   5.     That the children spend time with the father from 12 noon on Christmas Eve until 12 noon on Christmas Day in years ending in an even number and that the children spend time with the father from 12 noon on Christmas Day until 12 noon on Boxing day in years ending in an odd number.

   6.     That the children [B] and [D] spend time with the mother  from immediately  after school on the mother’s birthday until the commencement of school the following day in the event that the children are not otherwise spending time with the mother on a school day of a non-school day for a period of two hours between 1 pm and 3 pm.

   7.     For the purposes of calculating weekend time during school terms the parent who spends time with the children during the first half of any school holiday period shall spend time with the children on the first weekend after school resumes and every alternate weekend thereafter.

   Notation

   A.    If the mother is in Sydney during the 2016 April school holidays the child the child is to spend time with her from 10 am to 4pm on Sunday 17 April 2016 noting that it is proposed by the father that changeover involving all 3 children should occur at 10 am on 17 April 2016 being the midpoint of the school holidays.

8. The orders sought by the mother are as follows:

   Alternative Minute of Order proposed by the mother

   1.    That pending further determination of the Court that the orders of the Federal Circuit Court of Australia on 12/6/14 in relation to the child the child [C] (born …2002) be suspended as to Order 2

   2.    That the child [C] spend time with the mother each alternative weekend from the conclusion of school Friday until 1 hour prior to the child’s football game on a Sunday.

   3.    That for the purposes of implementation of Order 2 herein the following shall apply:

   a.[The child] is to spend time with the mother contemporary to his siblings [B] and [D] living with the mother;

   b.The mother is to deliver the child to the football ground that the father advises the child’s game is to be played upon;

   c.That the father is to notify the mother at least 48 hours prior to the commencement of the child’s game by SMS message of the venue and time of such game.

   4.    That the father be restrained from making contact, electronically, by telephone or otherwise with the child during the time [the child] is spending with his mother and shall only respond to [the child] in the circumstance of an alleged emergency after first contacting the mother by SMS message.

   5.    That the  parties do all such acts and things and make such appointments as soon as practicable upon the making of these orders to attend upon [Ms L] Family Therapist or such other Family Therapist as they may agree upon and for the purposes of implementation of this order.

   a.Ensure their respective attendance at each and every appointment as appointed by the Family Therapist;

   b.Ensure that if the children and in particular the child the child are in their respective care at the time that appointments are made by the Family Therapist for the children to attend that they shall ensure the attendance of the children of such appointments with the Family Therapist;

   c.That the parties share equally the fees of the Family Therapist;

   d.That the Independent Children's Lawyer provide a copy of the Family Report of 30 October 2014 to [Ms L] within 14 days

   6.    On occasions when the children are not attending school or otherwise provided for in these orders changeovers shall take place at the McDonalds Family Restaurant at [Suburb K] when the children are in the care of the mother and at the McDonalds Family Restaurant at [Suburb P] when the children are in the care of the father.

   7.    On Good Friday 25 March 2016 the children are to be returned to the mother at 8am at the McDonalds Family Restaurant at [Suburb P] by the father.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. The parenting orders which each party seeks a variation of were made 12 June 2014. The orders were made as interim parenting orders and provided for the parents to have equal shared parental responsibility in relation to all three children. The orders further provided for the children to live with the mother and spend time with the father. That time was to be alternate weekends from Thursday to Monday during school term and school holiday time. There was an order for the family to undertake therapeutic counselling with Mr Q.

3. The father sets out in his affidavit of 10 February 2016 details of interaction with the child in May 2014 where he requested his father to be able to live with him.  The child complained of the mother’s physical chastising of him.

4. On 3 February 2015 the father says there was a circumstance where both the child and D presented themselves at his partner’s workplace at a time when they were to be in the care of the mother. The father thereafter had a conversation with the child who told him he was not returning to live with the mother. He described the mother’s behaviour toward him which he found repugnant.

5. The father sets out detail of what happened following that incident involving the child’s school and with police officers.

6. Since 3 February 2015 the child has lived with the father.

7. The relationship as described by the father between himself and the mother is highly conflicted. So much so that police action was taken against the mother for alleging the father had sent her a text message which he did not send. That charge was later withdrawn in circumstances unknown to the father.

8. The father set out detail of difficulty the parties have faced in implementing the June 2014 orders, in particular a changeover point for non-school days. There has also been an issue about when school holidays start and finish.

9. Since February 2015 the child has spent only one occasion of time with the mother and that was on Christmas Day 2015. Following that event he complained to the father about his treatment from the mother.

10. It is the father’s proposal that both the child and D should live with him.

11. In his Affidavit sworn 3 March 2016 the father answers a series of affidavits served by the mother. The affidavits of the mother inter alia allege aggressive and confronting behaviour by the father to the mother and others with whom she has association. The father explains and denies the incidents were illustrative of aggressive and combative behaviour.

12. The father relied upon two affidavits sworn by Mr H. He is the principal of R School. He describes his interaction with the child and the father at the school on 4 February 2015. He sets out his interaction with the mother. He sets out the complaints the mother made to him about the father. This culminated in her telling him “[Mr Fegley] sexually abused his brother in the past. And now with D, D sleeps in his father’s bed and [Mr Fegley] kisses [D] on the lips”. She said she had been told these things.

13. Following that allegation Mr H describes the demeanour of the mother and other statements made by her including “[C] is a wretched child”. The mother had asked Mr H to have the child make his allegations about her directly to her face.

14. The mother relied upon the affidavits detailed earlier in these reasons. Her principal evidence addressing the issues to be considered in this determination can be found in her Affidavit sworn 27 February 2016.

15. In her affidavit the mother provides an extensive history of the marriage, the birth of the children, the care of the children during and since the separation. She says the current arrangements (contrary to the existing June 2014 orders) have B and D residing with the mother at her father’s residence at 10 Taronga St, Suburb K.

16. The mother is currently employed as a public servant. She works “flexi-hours” for a total of 35 hours per week.

17. The mother makes complaints about the accommodation which the father has available for the children. Her complaints are grounded on statements made by the children to her. She also says the father leaves the two boys to be cared for by B.

18. The mother outlines her proposals for the care of the children into the future. She proposes the child be required to live with her and have no time with the father for a period of 4 months unless that contact is in a session with a therapist.

19. In relation to altercations with the father post-separation, the mother describes her version of some of these including what occurred on 28 June 2015 at the S Markets. She details text messages passing between the father and herself. She details allegations of violence and confrontation between she and the father. These portray appalling behaviour by the father towards her.

20. The mother denied the allegation made by the child about her behaviour towards him including holding his head under water. The mother details other incidents of bad behaviour and aggressive behaviour the child has exhibited as reported to her by B.

21. The mother responded to the affidavit of the father sworn 10 February 2016. Notwithstanding that the mother’s solicitor knows that an affidavit in response is not permitted under the Family Law Rules I have read what she has sworn to be true. The short summation is that she denies or defends words and actions attributed to her by the father.

22. Perhaps one of the most revealing paragraphs of the mother’s affidavit is contained in paragraph 94. This related to the allegation made by the child to his father about his attendance upon his mother on Christmas Day 2015. The mother does not deny that part of the allegation that stated there was no Christmas gift for the child by his mother. She did say: “[The child] did attend Christmas lunch and I agree the child was made a gift of money by his aunt and uncle during Christmas lunch as [Mr Fegley] in the past has taken the children’s money from them and I wish to preserve the child’s gift so that he could use it for his own purposes when he returned to me on 2 January 2016.”

23. The mother relied on an affidavit by Mr M sworn 25 February 2016. This affidavit described a confrontation between the father and the deponent on 23 October 2015. The deponent set out details of words spoken and behaviour witnessed by him on that day. If true, this describes very aggressive and frightening behaviour exhibited by the father.

24. The mother relied upon an affidavit by Ms N sworn 29 February 2016. This affidavit describes an incident which occurred on 28 June 2015 at the S Markets. If true, she has described very aggressive, confronting and frightening behaviour exhibited by the father on that occasion.

The Family Report

1. Each of the parties relied upon the Family Report. The report resulted from interviews which were conducted in October 2014. Even at that time the child was stating a preference to spend more time with his father than his mother. He was forecasting taking things into his own hands should the court order that he live mainly with his mother. He complained about the way his mother physically chastised him. He complained about his maternal grandfather.

1. Under the heading “Evaluation” the Family Consultant describes the parents as “being locked in an intense and intractable conflict about each other, their relationship, and what is best for their three children”. Thereafter the Family Consultant sets out one of the most condemning picture of parenting practice by the parents that I have seen in a Family Report where each party does not appear to be afflicted with addiction to drugs and/or alcohol, mental illness or physical brain damage.

2. The Family Consultant recommended that all communication and contact between the parents be minimised to the greatest extent possible.

3. The recommendations of the Family Consultant included that the children all live in one residence and spend time with the other parent at least 4 or 5 consecutive nights each fortnight. It was recommended that the Court impose a variety of restraints to control the parents’ conflict impacting upon the children further.

The Submissions

1. Each of the parents and the Independent Children's Lawyer addressed the minutes of order marked as exhibit M1 and F1.

The Mother

1. The mother said she does not oppose the appointment of Ms L, Family Therapist. This matter appears to have been the subject of discussion which took place between the legal representatives of each party and the Independent Children's Lawyer at court on the day of the hearing.

2. The mother pressed for an order that the child be required to spend time with her. She said that if the requirement of the court was for the father to encourage the child to spend time with the mother then it will not occur.

3. The mother pointed to paragraphs 97, 98, 99 and 102 of the Family Report. She said the Family Consultant predicted what would happen with the child. The mother said she was eager to be able to work with the child in a therapeutic situation.

4. The order sought by the mother relative to the child was addressed. This would see the child with the mother for an overnight period from Friday until the commencement of his football match on Sunday. She suggested the changeover at school or the football match should avoid parental contact.

5. When asked why the mother was proposing the child not be able to have telephone contact with the father during the time he spends with the mother, it was submitted that the mother does not intend to stop the child contacting his father.

6. In relation to the mother’s proposal for handover of D (and B if she wished to be involved) to the father at the commencement of the time the father is to spend with D, she submitted that the most appropriate place was McDonald’s at T Street, Suburb K. On the return she said the McDonald’s at U Shopping Centre would share the travel for each of the parents.

7. In relation to exhibit F1 (the father’s minute of order) the mother said the football game, referred to in order 3, takes place on Sundays.  In relation to proposed order 5 the mother says a determination of what is to occur on Christmas Day is premature at this time. The mother opposes orders 6 and 7 as sought by the father.

The father

1. The father made submissions through his counsel.

2. He submitted that he would have greater possibility of succeeding in having the child spend time with his mother if there was not a specific order requiring that to occur. He submitted that it was more likely to succeed if the wording of the order saw the word “ encourage” incorporated therein.

3. It was submitted that the mother’s submissions and evidence all point to the father being solely responsible for the situation in which the child now finds himself. It was submitted that such a circumstance illustrates that the mother has no insight to her own actions which have clearly contributed to the present outcome.

4. Submissions were made as to an appropriate changeover venue for the children during school holiday time and time when changeover does not or cannot occur at the children’s school. The father submitted that the Suburb J McDonalds was the closest McDonalds outlet to his residence.

5. In relation to communication between the father and the child whilst the child is in the care of the mother, the father submitted there should be no embargo on communication. If that was to exist then it would make the father’s task more difficult in encouraging the child to join in spending time with the mother. At the very least there should be an allowance of text messages between the child and the father at those times.

Independent Children's Lawyer

1. The Independent Children's Lawyer submitted on 7 March 2016 as follows.

2. It was submitted that the Independent Children's Lawyer’s preference sat with the father’s minute of order as to how the matter was to progress.

3. The Independent Children's Lawyer expressed some concern at the mother’s proposed order which included overnight time to recommence immediately for the child. It was submitted that the child had expressed some hesitancy in relation to spending time with the mother.

4. I raised with the Independent Children's Lawyer the question of why I should make orders that the child was to spend time with the mother, rather than leaving the option open until such time as the allegations he made could be tested. The Independent Children's Lawyer submitted that the orders were “in line” with actions and steps taken in the matter, that the child had spent overnight time with the mother at Christmas with no further allegations arising. I note however that the child had made allegations against the mother about that Christmas Day time he spent with her which, if true, would amount to cruelty to him at her instigation. He said there was no Christmas present for him from her and added to which, the money which he had been given as a present by his uncle and aunt was confiscated by the mother. The mother agrees she confiscated his present, at least temporarily, and she does not respond to his allegation that she did not give him a present. At one level, given the mother’s response to the “confiscation of his money” allegation, it is possible the mother was using the offer to give him the money back when (or if) he visited with her in January holidays.

5. The Independent Children's Lawyer further submitted that since the allegations in February 2015, there have been no attempts to regulate the time that the child spends with his mother, and the concern was raised that if no steps were taken now, the relationship between the mother and child might drift further away.

6. In relation to the parents’ ability to facilitate the child’s expressed desire (see Family Report) to see his mother (should that happen) the Independent Children's Lawyer  submitted that if the Court were satisfied that the parties could communicate to “make things happen” then the court would not need to make orders as to the time the child spends with the mother. It was submitted, however, that the Independent Children's Lawyer was not of the view that the parents were able to do so. The Independent Children's Lawyer drew the Court’s attention to the fact that although the allegations were made by the child in February 2015, the parties were not able to organise any time with the mother and the child until Christmas 2015.

Conclusion

1. This case evidences a level of parental conflict which is bordering on extreme. It seems likely that the child’s response has been to opt out of the conflict if he can. He is at an age where his views as clearly expressed to the Family Consultant should be given weight.

2. Given the child’s actions in effectively running away from his mother, it seems unlikely that he will willingly re-engage in spending time with her without the benefit of engaging with a therapist. Both parties apparently recognise that fact and have each agreed to partake in therapy with Ms L.

3. It is not possible in the confines of this determination, and, in the absence of viewing each parent cross-examined, to determine who is at fault in relation to the many accusations each has made against the other. Therefore it is not possible to reach conclusions about matters required to be considered in s 60CC(3) such as parental capacity and parental responsibility. Drawing upon the Court’s experience it is possible that each parent should bear some of the responsibility for the events which have been canvassed in the affidavits and if found to be true cast each in a poor light as parent role models for their children.

4. The relationship between the child and the mother is clearly problematic at this time, however, the important relationships between the child and his siblings need to be preserved and expanded where that is possible by ensuring sufficient contact between them. There may also be some conflict in the relationship between the child and his maternal grandfather.

5. The communication between the parents is very poor and their relationship seems toxic. It is difficult to see how they can continue to have equal shared parental responsibility for the children unless there are some orders to control how the parties may deal with a decision which needs to be made.

6. The current care arrangements for the children see them split between two houses. Given the level of dispute within the family it is difficult to see how that might change. Each of the parents appears to concede that B should be able to make arrangements with each of the parents in relation to where she lives and the time she spends with each parent.

7. The capacity of each parent is seriously brought into question by the affidavit material filed by and on behalf of each. No determination can be made about that at this time. Some insight can be gleaned from the Family Report, however, that is now nearly 2 years old.

8. This is a matter where each of the parties has alleged family violence against the other. There have been proceedings in the State courts in relation to AVOs and the father says the mother has been charged by NSW police with an offence which was not ultimately proceeded with. He father successfully defended one proceeding in a state court and was found guilty of another.

9. It seems that the Court can only really make orders at this time which preserve options for the children and the Court and move towards a circumstance which may assist in reinstating the relationship between the mother and the child, if in fact that has truly broken down.

10. During the hearing the parties discussed their availability to participate in a meeting with a Family Consultant for the purpose of the preparation of a Child Responsive Memorandum. It was agreed that they will see the Family Consultant on 6 July this year and that upon release of the report flowing from that meeting the parties may relist the matter for further determination should that be required.

11. This matter was heard as part of a Duty List. The parties had time while waiting to commence the hearing before me on that day to discuss, through their lawyers and the Independent Children's Lawyer some aspects of the care of the children which gave rise to partial agreement. Where the parties have identified such I am prepared to make an order or notation in accordance with same.

12. For all those reasons I make the orders set out earlier in these reasons.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 15 April 2016.

Associate:

Date:  15 April 2016