Fenn and Jarvis

[2017] FCCA 1399

FEDERAL CIRCUIT COURT OF AUSTRALIA

FENN & JARVIS [2017] FCCA 1399

Catchwords:
FAMILY LAW – Parenting – interim – supervised contact between child and father.

Legislation:

Family Law Act 1975

Applicant: MR FENN

Respondent: MS JARVIS

File Number: SYC 2354 of 2017

Judgment of: Judge Henderson

Hearing date: 7 June 2017

Date of Last Submission: 7 June 2017

Delivered at: Sydney

Delivered on: 9 June 2017

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Ms Clifford

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

1. The child [X] born 22 (omitted) 2016 spend time with the father in each week, supervised by, and in the home of the maternal grandparents:

   (a)From the date of these Orders and continuing until the child turns 6 months of age:

   (i)Each Saturday from 3:30pm until 4:15pm;

   (ii)Each Tuesday from 7:15am until 8am;

   (b)From the time the child turns 6 months of age until she turns 9 months of age:

   (i)Each Saturday from 3:30pm until 4:30pm;

   (ii)Each Tuesday from 7:15am until 8am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2354 of 2017

MR FENN

Applicant

And

MS JARVIS

Respondent

REASONS FOR JUDGMENT

1. In the matter of Fenn & Jarvis, the court has attempted to contact the father on two occasions to deliver judgment and has been unable to do so. The court notes he may be in court. He is a barrister. However, the judgment will be delivered, and if the father wishes a copy of the judgment he can seek that be done.

2. This was an application by a father for defined time to his daughter aged five months. The father acted for himself. Ms Clifford of counsel for the mother.

3. I directed the parties to attend a child dispute conference and listed the matter for a full interim hearing on 20 October 2017. My task today was to put in place a fixed regime of time until that interim hearing.

4. The evidence for the father was his initiating application filed 8 April 2017, notice of risk and affidavit of 18 April 2017.

5. Exhibit 1, a series of text messages between he and the mother.

6. For the mother, her affidavit and response filed 6 June 2017.

7. The mother alleges intimidation and coercive behaviour by the father towards her including in their workplace. The parents were each working as lawyers in a legal firm. The parents had a short, unhappy relationship and have never lived together with their child on any bona fide domestic relationship for any significant period of time. The child is a healthy child and is currently being breastfed.

8. The father’s own affidavit has caused me concern in relation to his lack of insight into the needs of a young child or parenting matters generally. It is consistent with the mother’s case that the father lacks education or, and it is hoped not, a capacity to understand the needs of a child and appropriate conduct towards the mother of a child of five months of age.

9. The mother’s concerns are well-founded. Despite my best efforts to focus the father on the needs of his daughter, his affidavit and submissions to me were concerned with the lack of evidence to support the mother’s assertions of his poor behaviour towards her.

10. He had no ability to concede or understand that some of his actions and behaviours as alleged could have caused or did cause the mother anxiety and stress and were not appropriate. He demonstrated no understanding that his barrage of text and emails requesting to spend time with his daughter immediately at her birth, for example, the child is one day old:

    You have not nominated any time in which you will let me see [X]  and thus clearly are, in fact, preventing me from seeing her. I’m left with no choice but to pursue other avenues.

11. When the child is 16 days old:

    “The timing, again, indicates an intention on your part to institute an indefinite once a week arrangement to which I have never agreed and which is completely unsuitable. Appropriate communications in that regard will be forthcoming.”

12. The mother put forward a proposal when [X] was nine weeks old that the father could come and see her in the morning 7.30 to 8 because she was awake and alert then. This is the father’s response on 23 February 2017:

    The time is obviously completely impractical in light of the travel time between [Town A] and [Town B].

13. The father lives with his parents in [Town A], the mother in [Town B] with her parents.

    …and my need to get to work. I indicated my availability in previous messages.

14. Those text messages indicate that the father sees every aspect of his relationship with the child as the child and the mother fitting around his needs and the convenience and practicality for him.

15. These barrage of texts, and I’ve only read out a few of them, the mother found harassing, threatening and stressful, and I accept from the mother’s position that they were for her. His text messages about his newborn child did not help the mother settle the child into a routine or establish a routine and a pattern of behaviour and indicates to me the father had no idea how important it is at this stage of this child’s life that the priority is establishing routine and stability in her primary carer home so that she can, in time, commence a secondary primary relationship with her father.

16. The father had no idea of the needs of a child following the child’s birth. For example, and I read paragraph 20 of his affidavit of April 2017. The child was four days old at this time:

    On (date omitted), I sent a text with no request inquiring as to [X]’s health. I received no response.

17. The child was four days old. The mother may well have been recovering from the birth. The child was born healthy. The father knew she had been born healthy.

18. The father’s complaint is that mother has failed the father by not instantly responding to her.

19. Paragraph 24 of his affidavit:

    I visited [X] at Ms Jarvis’s parents’ house for an hour. I did not see Ms Jarvis. I would like to speak to Ms Jarvis. Is she around?

20. This constant pressuring wanting to speak with and deal with the mother when the mother had made it clear to him in text messages she did not want to speak to him as she was recovering from the birth. This was sought six days after the child’s birth.

21. At paragraph 41 of his affidavit:

    6 April I sent an email to Ms Jarvis concerning practical arrangements for taking [X] out.

22. The child was not yet four months of age and demand breastfeeding.

23. The father follows nothing of what the mother says and does. He will not take or follow a lead from the mother who is the child’s primary carer.

24. His application is that he spends three hours with his child each of Saturday and Sunday every week until she’s nine months of age, and then he will seek more time. That of itself causes me concern as [X] has an older brother. Her mother has another child. There is no mention in the father’s affidavit of the importance of the mother and the child and her older son [Y] bonding, having a relationship, doing activities with the family on the weekend as we do with children. Merely a pressing of the father’s needs because, as he said to me in his submissions, Saturdays and Sundays suit him with his work.

25. The father wrote an email to the mother which is attached to her affidavit on 23 March 2017. This is dated Saturday, 25 February 2017. The child was not eight weeks of age:

    It’s not true you’ve offered a number of times before when I’m available. I’ve clearly stated my availability any time on the weekend and weekdays after business hours.

    Your suggested time being 7 am or 7.30 am on a weekday are patently absurd and impractical and will not warrant further discussion. It’s open to you to suggest any time at all this weekend and after work.

    Failing you doing so, my mother and I will visit on Tuesday after work, and you will be there around 7. As stated, should [X] be asleep, I’m happy to let her sleep. Obviously, I assume that whether she’s awake or asleep, I will be in the room with her throughout my visit, and you will not obstruct that.

26. This says to me the baby and mother must fit around his work schedule and his work commitments.

27. The father attempted to ameliorate this concerning SMS in his submissions. He agreed that perhaps, it was not appropriate. The SMS was totally and absolutely inappropriate and supports that which the mother says about him particularly in relation to his lack of insight into the needs of the child.

28. There is no request in a polite courteous way from the father to the mother, no insight or willingness to take the mother’s lead on the best way to spend time with his even now only five-month old baby, to understand the type of child she is, to understand her needs are the priority, not his working schedule. Rather, as he said in his opening paragraph of his affidavit which, perhaps, encapsulates the father’s attitude:

    I am the father of [X]. I wish to spend substantial and significant time with [X] and be involved in all aspects of her life. I also wish to be involved in decision-making with respect to long-term issues for [X]’s care and welfare.

29. It is an exceedingly rights-based approach the father takes to parenting.

30. The father’s submissions to me were that it was impossible for him to spend time with his child each morning or any morning as he has to be at work at 8. However, as I pointed out to him, he is a barrister and has no compunction to be at work at any time other than that which he chooses. His answer to me was that is when the briefs come in, the briefs for the day that other barristers cannot do and he needed to be there, and it would be inconvenient to his work schedule. The father does not seem to understand that having a child, spending time with the child, forming a relationship and a bond with the child may come at a significant inconvenience to one’s work routine and schedule.

31. The father demonstrated no insight or little concept and appeared to not understand when I pressed him on the issue that having a child means your routine will be or may be affected. You may have to vary your work hours, and that you, because you are working, do not have all the weekend time such or fracture all the weekend for the mother, the baby, and the child’s older brother.

32. The father said he was no risk to the child and he did not require supervision when he spent time with the child. I need not have read the mother’s affidavit other than the annexed SMS or the litany of concerning behaviour she sets out chapter and verse to share the mother’s concerns of the father’s lack of insight and current incapacity to parent a young baby. His affidavit and SMS to the mother in February 2017 raises a significant concern to the Court.

33. The father may commence medical studies. He has completed the Bar course and recently gone to the Bar, and his life is clearly not settled. He is highly intelligent. He has enrolled in and completed some parenting courses to his credit.

34. The mother is an experienced mother of two young children, and the father has no such experience, yet has failed to accept the experience the mother has and take her lead about the appropriate times and schedule for their daughter.

35. Looking at the Act[1].

    [1] Family Law Act 1975.

36. I will not at this time deal with parental responsibility. It is not sought by either party and I leave that to the interim hearing in October.

37. I find the child is potentially at some risk in her father’s care due to his lack of insight, understanding, education, or perhaps capacity to care for a young child. His rights-based attitude to parenting and his disregard of the mother as an experienced parent is cause for concern. At this stage, the child’s mother is the only parent who has the appropriate insight and understanding to her needs, and in those circumstances, I will adopt the position she sets out in her material as she is the parent who knows her child best, and the Court will be guided by her position, given the very young age of this baby.

38. [X] needs to establish a secure primary bond with her mother, and she requires only time with the father at this time in a supervised setting so that her mother is not anxious and [X] is protected. Time with the father must be supervised. He cannot care for this child on his own. I am not confident at all that he could manage this baby. If the father pushes his attitude of relationship with his child at this early age as he sees fit too so far, he may disrupt her primary attachment to her mother, which will have a significant impact on her capacity to attach to him in the future.

39. I find there is a possible risk to the child in the father’s care due to his rights-based need to clear his name, and a substantial lack of any insight into the needs of his child. Therefore I will make the orders as sought by the mother in paragraphs 1.2 and 2.1 of her response, which is.

40. That the child, [X], born (omitted) 2016, live with her mother.

41. The child spend time with her father weekly, each Saturday from 3.30 pm until 4.15 pm, and each Wednesday from 2.30 pm to 3.15 pm, which are times that the child is awake and the father is available to spend time with her supervised by and in the home of her grandparents.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 21 June 2017