Finnerty and Finnerty

[2012] FamCA 190

FAMILY COURT OF AUSTRALIA

FINNERTY & FINNERTY [2012] FamCA 190

FAMILY LAW - CHILDREN – with whom a child shall spend time and communicate – application for variation of prior consent orders by mother – neither party sought comprehensive revision of the existing parenting regime – issue of whether the eldest child now aged 16 years should be excluded from the existing parenting orders and permitted to make own decision about how he communicates and spends time with the father – issue of whether the father should be compelled to ensure the attendance of the middle child at sporting activities during the father’s time with the children – issue of whether father should be restrained from sleeping in same bed or bedroom as children – best interests of the children considered - children’s views – where eldest child was dissatisfied with the current orders and wanted to dictate terms on which he communicate and spent time with the father – eldest child of sufficient age and maturity for his wishes to carry considerable weight – finding that circumstances of eldest child have materially changed and evidence warrants amendment of existing orders – orders for eldest child to communicate and spend time with the father pursuant to his wishes

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Goode & Goode (2006) FLC 93-286
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363

APPLICANT: Ms Finnerty

RESPONDENT: Mr Finnerty

FILE NUMBER: CRC 93 of 2008

DATE DELIVERED: 2 April 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 15 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Rice More and Gibson Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. Orders 3, 4, 5 and 7 made on 28 April 2009 are amended by excluding the eldest child, T, from the operation of those orders.

2. The parties shall take all reasonable steps to ensure that the eldest child, T, spends time and communicates with the father in accordance with that child’s wishes.

3. The Application filed on 7 March 2011 and the Response filed on 6 April 2011 are otherwise dismissed.

4. Any and all other outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finnerty & Finnerty 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 NEWCASTLE

FILE NUMBER: CRC 93 of 2008

Ms Finnerty

Applicant

And

Mr Finnerty

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings are participating in their third round of litigation concerning their three children.

2. Parenting orders were originally made with their consent in September 2006, but those orders were subsequently replaced by orders made in April 2009, again with their consent. The existing orders provide for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, for the children to spend time with the father on the fourth weekend of each school term and for some periods of school holidays, and for the children to communicate with the father by telephone.

3. The mother commenced these proceedings in March 2011 seeking further revision of the parenting orders.

4. The competing applications of the parties reveal that they are in dispute about relatively few discrete issues. They are:

   a)Whether the eldest child, who is now aged over 16 years, should be excluded from the existing parenting orders and permitted to make his own decisions about when and how he communicates and spends time with the father;

   b)Whether the father should be compelled to ensure the attendance of the middle child at sporting activities that fall on the weekends the children spend time with the father;

   c)Whether the father should be restrained from sleeping in the same bed or bedroom as the children; and

   d)Whether the father should be restrained from taking the children to his workplace.

The evidence

1. In support of her Application filed on 7 March 2011 the mother relied upon her affidavit filed on 3 February 2012 and the affidavit of the Family Consultant sworn or affirmed on 10 May 2011.

2. Despite procedural orders requiring him to do so, the father failed to file any affidavit in support of his Response filed on 6 April 2011.

3. The father attended Court for the trial and represented himself. When appraised of his failure to adduce any evidence he elected to proceed with the hearing rather than seek an adjournment and risk incurring a costs order for the costs thereby thrown away by the mother.

4. It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity to prepare and present their case. The father was given such an opportunity but he failed to make full use of it. No-one was to blame for that but the father. There was no procedural unfairness in the trial proceeding, as the father requested. The father participated by cross-examining the mother and Family Consultant and by making submissions.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

9. Orders in respect of children are intended to be final but they are never immutable. However, in order to thwart the prospect of endless litigation over children, principles evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances and no revelation of some previously unknown feature of material relevance since litigation was last finalised in respect of such children (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).

10. The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden v Winch at [46-47]; Miller v Harrington (2008) FLC 93-383 at [80-83]), but whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration (see Marsden v Winch at [55]; Miller v Harrington at [101]) and procedural fairness should always be observed (see Marsden v Winch at [56]).

Parenting orders

1. Although both parties sought discharge of all prior parenting orders, that was not their real intention.

2. The parties each proposed replacement orders which largely replicated those previously agreed in April 2009. Consequently, neither party sought comprehensive revision of the existing parenting regime. The contentious issues were few and discrete.

3. As was observed in SPS v PLS at [83]:

   …the rule [in Rice v Asplund] may not impede hearing an application for a small alteration [to existing orders], which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.

4. An order for equal shared parental responsibility is already in place. Neither party seeks to disturb that order.

5. Neither do the parties seek to disturb the orders that provide for the children to live with the mother and spend time infrequently with the father. The mother lives with the children in Town A and the father lives in Newcastle. They sensibly recognise that the lack of proximity of their homes precludes the children from living with them for equal time or spending substantial and significant time with the father.

6. The parties desired adjudication of the discrete contentious issues in isolation, but that must still occur in the context of the statutory provisions and the authorities to which reference has already been made.

Issue 1 – the eldest child

1. The eldest child was born in August 1995. He is now aged 16 years and 7 months. He is in Year 11 at secondary school.

2. He leads a busy life. Apart from his school commitments, he plays sport, holds down part-time employment and wishes to socialise with his friends.

3. The mother proposes that he spend time and communicate with the father only when he desires to do so, which would necessitate the parenting orders treating him differently from the two younger children.

4. In May 2011 when the eldest child conferred with the Family Consultant he told her he was dissatisfied with the current orders that dictate when and how he spends time and communicates with the father.

5. The mother adduced evidence as to how his attitude remains unchanged. The mother deposed the child said to her:

   I just want to see Dad went (sic) I want to. I’m over sixteen, you can’t make me go, I should be able to decide for myself.

6. The eldest child is much bigger and physically stronger than the mother, who is anxious about her inability to compel or cajole the child to comply with existing parenting orders against his will.

7. The Family Consultant advised that the eldest child is in the adolescent phase of development, in which he is “individuating” from his parents. She considers that the eldest child’s view about the unsuitability of the current arrangement for him is developmentally appropriate.

8. The Family Consultant recognised that parental relationships remain relationships of primary significance even for adolescents, but she was concerned the eldest child’s relationship with the father would suffer detriment if the eldest child was forced to spend time with the father against his wishes. On the other hand, the Family Consultant also recognised that permitting the eldest child to decide not to spend time with the father would make it easy for him not to do so and their consequent lack of interaction may also impair their relationship.

9. The Family Consultant recognised the underlying tension between the desirability of an adolescent spending sufficient time with a parent to retain a meaningful relationship and the need for the adolescent to exert his or her individuality. In her view, neither aspect was more important than the other.

10. I harbour considerable misgivings that acceding to the eldest child’s demands will inevitably lead to him communicating and spending time with the father quite infrequently. The mother reported that he currently refuses to spend time with the father. If he knows he can make that choice without recrimination then perpetuation of his current sentiment is likely.

11. While that outcome would likely lead to some deterioration in the relationship between the eldest child and the father, the unavoidable reality is that the child is of sufficient age and maturity for his wishes to carry considerable – even overwhelming – weight. The mother has attempted to discipline the eldest child for his refusal to comply with the orders and there is little more that can be expected of her.

12. I am persuaded that circumstances for the eldest child have materially changed since the time the last parenting orders were made in April 2009. He is now resistant to as much interaction with the father as before and the stage has been reached where his views must be respected. The evidence warrants amendment of the existing orders so that the eldest child communicates and spends time with the father pursuant to his wishes.

13. Perhaps the eldest child will come to regret any decision he makes to distance himself from the father, but at least he and the parties will know the father resisted such an outcome.

Issue 2 – weekend sporting activities

1. Presently, the younger children spend only one weekend per school term with the father. Although the parties’ households are a considerable distance apart, it is not unduly onerous for the children to travel and spend time with the father for one weekend so infrequently.

2. The middle child plays football, the season for which extends from April to September each year. His weekend sporting commitments will probably therefore clash with the time he spends with the father on one weekend during both the second and third terms of school. That amounts to only two weekends over six months.

3. The child prefers not to miss his games, which is the reason the mother advances for the father to be compelled to ensure the child’s attendance. The father does not wish to be bound to take the child to those games on weekends when the child is to spend time with him.

4. The father has told the mother:

   I am not taking him, it is my time with the children, I don’t have to spend it doing activities that you have decided to place him in.

5. The father also told the Family Consultant he did not wish to be obliged to facilitate the middle child’s participation in sports on the weekends the child spends with him because it would:

   …not allow for him to spend quality time with the children.

6. Clearly, it would be preferential for the father to facilitate the middle child’s participation in team sports that he enjoys as it will enhance the child’s socialisation. Moreover, as the Family Consultant stated in cross-examination, the father’s refusal to ensure the child’s attendance at his games on those weekends signals to the child that the father does not appreciate or support the importance to the child of his participation. The Family Consultant said that would “possibly” be detrimental to their relationship.

7. That may be so, but they are not the only considerations.

8. It was almost inevitable when the orders were made in April 2009 that the children would participate in sports and extra-curricular activities as they grew older and that those activities would conflict with the time they were due to spend with the father. The current situation must therefore have been contemplated when the orders were made in 2009 so it is not an unforeseen change in circumstances. The middle child only spends two weekends with the father during the football season. It is hardly a burdensome imposition for the child to miss the games on those weekends. He may miss them in any event due to injury, substitution or inclement weather. The Family Consultant conceded that the missed games themselves are inconsequential.

9. The father lives a considerable distance from the mother. Time is precious on the few weekends the children spend with him. Forcing the father to stay in the area near the mother’s home, or worse still, travel considerable further distances to the middle child’s representative games, for part or all of those weekends, would be a significant burden on the father and the youngest child.

10. There is no warrant to subjugate the interests of the youngest child to those of the middle child by forcing her to travel extensively just so the middle child can pursue his activities of choice. The two youngest children spend little time with the father already. The time they do spend with him should benefit them both equally.

11. The concerns of the mother about the middle child seem unnecessarily elevated in any event. When the middle child spoke with the Family Consultant he was reluctant to express a view regarding parenting arrangements, but he did say he did not think any changes were required. Inferentially, while he may prefer not to miss his sporting activities he acknowledges the sacrifice is relatively painless.

12. I am not satisfied that there is any need for amendment of the orders in the manner proposed by the mother.

Issue 3 – sleeping arrangements

1. The mother believes the youngest child, a female, sleeps in the same bed as the father when she spends time with him. Although she deposed to concern about only the youngest child, she proposed an injunction to prevent it from occurring with any of the children.

2. The father occupies a three bedroom house. The mother deposed that the children reported to her that the boys each have a bedroom and the youngest child sleeps with the father. However, the mother’s stated concerns extended back to the period following separation many years ago. She also referred to negotiations between them over the issue in 2008. Despite the issue allegedly being such a long-standing problem, it was not addressed in the orders made consensually in April 2009. Accordingly, it is not a situation in which the issue has only arisen since the last orders were made. It is not a change in circumstances.

3. The youngest child is now 12 years of age. There is no suggestion the father has acted sexually inappropriately with her, but without saying so explicitly, the potentiality for that is the mother’s concern. She deposed:

   I have discussed the facts of life with [the youngest child] and the inappropriateness of her father sleeping in the same bed, however children can be very naïve and I am extremely concerned about this type of behaviour.

4. I do not doubt the veracity of the mother, but her concerns alone are not sufficient to justify the imposition of an injunction, which would almost surely entail the mother’s interrogation of the child after each visit to ensure compliance by the father. That would likely exert pressure on the child to make reports to the mother and induce in her a sense of disloyalty to the father. That could be emotionally damaging to the child because the mother’s interrogation would demand her to divide her loyalty to both parties.

1. The father denied to the Family Consultant that he shares a room with the children, unless the children wake during the night and “seek to co-sleep with him”. The implication was that it was not a common occurrence. The mother adduced no evidence from which it could be more fairly imputed that it was, conversely, a common occurrence.

2. The Family Consultant reported that the youngest child has positive relationships with both parents. She told the Family Consultant the current parenting arrangements are “alright for me”. There is no basis to infer that she has been troubled by anything that has occurred in the father’s home.

3. The child is sensible, enjoys a loving relationship with the father and, according to the mother, is now attuned to sexual propriety. She is probably mature enough to resist any advance of sexual impropriety, which occurrence is nothing more than a bare and isolated fear in the mind of the mother. In any event, the youngest child will only spend time with the father in the company of her older brother, and given the likely withdrawal of the eldest child from the parenting arrangements, the youngest child will have a separate bedroom available to her at the father’s home.

4. The mother trusts the father to share parental responsibility for the children with her. It is somewhat of a paradox to trust the father to undertake that role but not trust him to properly care for and protect the youngest child. Imposing injunctions of the type contemplated by the mother will undermine the trust between the parties and likely increase hostility between them. The Family Consultant opined that the children are aware of and disturbed by the conflict that exists between the parties.

5. As was fairly conceded by the mother’s solicitor during final submissions, the issue is really one of importance to the mother rather than the child. But the paramount consideration is the child’s best interests, not the mother’s.

6. The best interests of the youngest child seem more compromised by making the injunction proposed by the mother than by refusing it. I therefore decline to impose the injunction.

Issue 4 – father’s workplace

1. The children have each complained to the mother about being taken to the father’s workplace from time to time because they are bored. On that basis alone the mother seeks an injunction restraining the father from taking them to his workplace.

2. The mother imputed from the reports of the children that they are almost always taken to the father’s workplace, but that is not necessarily so. The statements attributed by the mother to the children do not necessarily support that imputation. Nor does such an imputation clearly arise from the children’s reports to the Family Consultant. The children’s expressions of dissatisfaction are liable to be laced with hyperbole.

3. The eldest child stated that the father continued to work during school holiday periods, but he also said he and his siblings sometimes went to the movies together while the father needed to work. The middle child reported the father worked for the majority of the time the children spend with him, but that the father also “goes places” with them. The youngest child reported that she “sometimes” has to go to the father’s workplace. Nevertheless, it is clear the father takes the children to his workplace with such frequency that they are disillusioned.

4. Ideally, the father would keep the children entertained and exhilarated for the entirety of the time they spend with him, but that is not real life. Sometimes life is boring and sometimes children need to endure experiences they would prefer to avoid.

5. I do not accept the bald assertion that the father prioritises his own needs over those of the children. Parents need to meet employment obligations. Their employment and income is also important to children’s welfare. However, if the father exercises good judgment as a parent, he will minimise the time he compels the children to spend at his workplace, for otherwise he will risk the younger children becoming disenchanted about spending time with him – just as occurred with the eldest child.

6. The Family Consultant reported:

   Unless the father adequately addresses the experiences of the children during the time that they spend with him and develops an understanding of evolving developmental needs of the children it is likely that [the two younger children] may soon express views similar to [the eldest child] regarding arrangements to spend time with the father.

7. While the father may be forewarned about such potential developments, it hardly justifies the severe remedial measure of an injunction restraining the father from taking the children to his workplace at any time for any reason. I decline to make the injunction proposed by the mother.

Conclusion

1. For those reasons I am satisfied that the orders set out at the commencement of this judgment are made in the best interests of the children.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 2 April 2012.

Associate: 

Date:  2 April 2012