GAINFORTH & GAINFORTH
[2011] FamCA 757
FAMILY COURT OF AUSTRALIA
| GAINFORTH & GAINFORTH | [2011] FamCA 757 |
| FAMILY LAW – CHILDREN – interim orders – parental responsibility – mother primary carer of children – children of very young age - allegation of family violence against father by mother – untested evidence – no finding of family violence made – mother reported incident to police – allegation unlikely to be fabricated - conservative approach taken in the best interests of very young children – reasonable grounds for presumption of equal shared parental responsibility to not apply – orders for mother to have sole parental responsibility on an interim basis FAMILY LAW – CHILDREN – interim orders - with whom children shall live and spend time - father diagnosed with depression and receiving treatment - father’s past use of excess alcohol and illicit substances - significant illness of the second youngest child of the marriage – mother has greater capacity to meet the developmental needs of younger two children – children to have greater stability in living with the mother – orders for children to live with mother and spend regular time with father with overnight visits once father has independent accommodation |
| Family Law Act 1975 (Cth) ss 60CC, 61DA |
| APPLICANT: | Ms Gainforth |
| RESPONDENT: | Mr Gainforth |
| FILE NUMBER: | (P)NCC | 2132 | of | 2011 |
| DATE DELIVERED: | 15 September 2011 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 12 September 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mullane & Lindsay Ms Carty |
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | Jarratt Webb Graham Lawyers |
Orders Pending further order:
That the mother have sole parental responsibility for the children B … 2002, C born … 2004, D born … 2007 and E born … 2009 (“the children”).
That the children live with the mother and spend time with the father as follows:
(a) Until the father has independent accommodation:
(i)each Tuesday and Thursday from 4.30 pm to 7.30 pm; and
(ii)each Sunday from 9.00 am to 5.00 pm.
(b) From the time the father has independent accommodation:
(i)Each alternate weekend from 4.30 pm Friday to 4.30 pm Sunday;
(ii)each Tuesday from 4.30 pm to 7.30 pm;
(iii)on Thursday from 4.30 pm to 7.30 pm in each alternate week where the children spend the following weekend with the mother
(c) That the paternal grandmother be present on the first two occasions when the children are with their father for a weekend including overnight periods.
(d) At such other and/or additional times as are agreed between the parties.
Notwithstanding any other order herein:
3.1The father shall spend time with the children from 3.00 pm Christmas Day to 3.00 pm Boxing Day in odd numbered years and from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in even numbered years.
3.2The mother shall spend time with the children from 3.00 pm Christmas Day to 3.00 pm Boxing Day in even numbered years and from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in odd numbered years.
3.3The mother shall spend time with the children from 5.00 pm on the day immediately preceding Mother’s Day to 4.00 pm Mother’s Day if the children are not otherwise in her care.
3.4The father shall spend time with the children from 5.00 pm on the day immediately preceding Father’s Day to 4.00 pm Father’s Day if the children are not otherwise in his care.
3.5The children shall spend time with the parent with whom they are not otherwise living with from after school or 3.00 pm to 7.00 pm on each of the children’s birthdays if such birthday falls on a school day or from 2.00 pm to 7.00 pm if such birthday falls on a weekend.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Gainforth & Gainforth 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: (P)NCC2132 of 2011
| Ms Gainforth |
Applicant
And
| Mr Gainforth |
Respondent
REASONS FOR JUDGMENT
Ms and Mr Gainforth are the parents of four sons, B, C, D and E aged nine, seven, four and two respectively. Both parents are school teachers.
Their marriage broke down in July 2010. The children continued to live in the family home, while their parents moved in and out in a fortnightly pattern amounting to equal time with each parent.
The mother considers that the arrangement is not working well for the children or for her. The father would like the arrangement to continue, but has acknowledged that the two younger children are struggling.
Competing proposals for interim orders
The mother seeks sole parental responsibility, residence with her and time with the father in a fortnightly pattern as follows:
Week 1Tuesday and Thursday from 4.30 pm to 7.30 pm
Week 2Tuesday from 4.30 pm to 7.30 pm
Friday from 4.30 pm to Sunday 4.30 pm (with the weekend period to be supervised by the paternal grandmother).
The mother seeks a psychiatric assessment of the father and non-denigration orders.
The father seeks equal shared parental responsibility, exclusive occupation of the family home and living arrangements as follows:
Week 1from 3.00 pm Friday to 9.00 am Monday
Week 2from 3.00 pm Wednesday to 3.00 pm Friday.
The father also seeks orders for school holidays and other special times.
The father rejects the proposal that supervision of his time with the children is required.
Issues in dispute
Has there been family violence on17 August 2011?
The mother alleges an assault by the father; that on the afternoon of this day the father knowingly and in front of the children, slammed a door on her arm jamming it in the doorway[1]. The mother says she reported the incident to police.
[1] Affidavit of mother filed 19 August 2011, par 34.
The father asserts that the parties were together in the home at the relevant time and had a terse conversation. He denies there was any physical violence[2].
[2] Affidavit of father filed 7 September 2011, par 56.
I cannot make a finding about this matter on untested evidence. However it is clear that there was an angry scene.
What is the capacity of the parents to meet the children’s needs?
In August 2010, the father was referred by his general practitioner under Workcover to a clinical psychologist, Ms F. The referral was through Workcover because the father had been assaulted by a year eight student in February 2009. The father took four days off school after the incident but did not believe at that time he needed counselling.
By the time of the referral to Ms F the father apparently considered that his work-related stress had perhaps contributed to marital difficulties.
The father was diagnosed with an Adjustment Disorder with depression and anxiety. He was treated with a combination of cognitive behavioural therapy and anti-depressant medication over approximately 12 months. Ms F assessed the father on 1 September 2011 as having maintained good progress, his depressive symptoms well managed.
The mother expressed a belief that the father has suffered depression for years. On balance, the evidence of the father tends to support the proposition that he was probably depressed, certainly stressed from at least early 2009.
This is consistent with the mother’s assertion that for the period of 12 months before separation, the father was going straight from work to a hotel, was limited in his interaction with the children when he came home and was quick-tempered.
The parties agree that in mid 2009 the father put a dent in the plaster of a bedroom wall with his hand. The mother says, “After punching the bedroom door the father punched a hole in the bedroom wall”.
The father says he aimed to strike the door jamb with his hand, missed and struck the adjoining plaster denting it. There is no significance in the difference.
The mother says the children woke and were crying. The father does not deny it. This was no doubt a frightening incident for the children.
The father’s use of alcohol and marijuana
The mother asserts that the father drank regularly and to excess.
After separation the father, to his credit, joined Alcoholics Anonymous. He says that on attending his first meeting that he realised that he had on occasions “drunk alcohol too much and that this had to stop”. The father says he has now modified his drinking considerably. This acknowledgement should be of some comfort to the mother despite the frustration of it coming after separation. Likewise the father says he has ceased using marijuana. A clean test result was tendered.
All this evidence including the test result is untested. These matters would no doubt be fully explored if there is a final hearing.
What parenting arrangements best meet the developmental needs of the children?
E
The parties agree that E has regularly become upset when the time comes for his mother to leave the house. At two years and five months of age it is important to protect and not disrupt his attachment to both parents. His primary attachment is to his mother at this time. Both parties acknowledge this.
What is in dispute is whether the father has spoken to E in a sarcastic manner about the mother leaving. The mother says the father has said: “She always does this mate, she leaves”. The inference being that this was denigration not reassurance.
The father’s version of what he said is: “Mummy’s got to go. That’s what she always does champ”. The inference being that the father said this for comfort and not sarcasm or denigration.
I cannot make a finding about this. The mother may be over sensitive. The father may have allowed his own distress at the ending of the marriage to affect his judgment.
I have no doubt that both parents, also teachers, understand the damage to the child’s self esteem of being caught in adult conflict. For that reason I consider it unnecessary to make orders restraining the parties or either of them from criticising or ridiculing a parent in the presence of the children.
Uncontested relevant facts
D’s health
D was born in 2007 with reduced function in his kidneys. He was in hospital for four weeks soon after birth and again for six weeks after surgery when he was five months old.
D sees specialists and has tests regularly. He is susceptible to infection and suffers from respiratory problems, particularly croup.
The mother stayed with D in hospital and attends with him for blood tests, ultra sounds and specialist appointments. The mother asserts that D is strongly bonded to her on this account. There is no real dispute about this.
Death of the maternal grandmother
The mother’s mother died from breast cancer in January 2008. She had assisted the parties with the children and particularly so when the mother was at hospital with D.
The parties had moved from southern western Sydney to G Town in late 2000 in order to be closer to the maternal grandmother after her initial diagnosis. No doubt the mother has felt the loss of her mother’s support.
Section 60CC – Child’s best interests
When making parenting orders it is important for the Court to determine what is in the best interests of a child or children. The factors used to determine this are contained in section 60CC of the Family Law Act 1975 (Cth) and are considered below.
The parties each have a meaningful relationship with the children.
There is a need to protect the children from psychological harm from being exposed to family violence.
I am unable to make a finding that there has been family violence. However I must take a conservative approach in the best interests of very young children. The mother says there was a deliberate assault on her being the jamming of her arm in the door.
The father denies this event, although agrees that both parties and the children were together at the relevant time. He does not say that on that day there was an injury to the mother but that it was accidental. He says nothing happened.
Accordingly I am left with two possibilities, that the father did deliberately jam the mother’s arm in the door, or that the mother fabricated this incident.
The mother says she reported the matter to police. Her application to the Court was filed two days later. It seems less likely that the incident was fabricated.
This matter will require examination in a final hearing where the Court will have the benefit of documents produced on subpoena and cross-examination of the parties.
The children have a loving bond with both parents. All of them but especially D and E have been distressed and unsettled by spending less time with their mother. This is so even after 12 months. It is a reflection of their developmental needs.
The parents have each done their best to promote a close and continuing relationship between the children and the other parent.
The change in circumstances of the children is that although they will continue to live in their family home, they will no longer experience their mother leaving the home for lengthy periods. They will spend time with their father in his new accommodation for regular periods of three hours and alternate weekends. The children should find greater stability with these arrangements.
The children may be unsettled and uncertain during their first overnight stay with the father. For that reason the presence of their grandmother, who is a loving presence in their lives, will help them. The mother will also feel more at ease knowing her mother-in-law is present to assist the father and settle the children.
The parties agree that the children should not be separated. This is appropriate. The needs of the younger children determine the arrangements to an extent. Accordingly, on an interim basis, provision for school holiday periods has not been made.
Each of the parents has a capacity to meet the needs of the children.
The father was less engaged with them during an extended period of depression and anxiety. That situation has been changing and improving since at least August 2010 when the father sought professional help.
The mother has a greater capacity to meet the needs of D and E at this stage because of their attachment and D’s health.
In relation to the father’s mental health, the mother seeks a psychiatric assessment. I find that the father has sought out appropriate professional help with a counsellor, his general practitioner and a clinical psychologist. There is no basis in the evidence for further assessment at this time.
The father is presently staying with a friendly neighbour who is known to the children. The father intends to find independent accommodation. There will need to be sufficient space for each child to have his own bed and a sense of belonging in the father’s house.
For that reason overnight periods will commence once that accommodation has been arranged by the father.
The children, especially B and C, may enjoy helping the father to set up and decorate the spaces the children occupy.
Section 61DA - Does the presumption of equal shared parental responsibility apply?
When making parenting orders the Court must apply a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility.
That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
For the reasons already set out, I consider that there are reasonable grounds for such relief. Accordingly the presumption does not apply.
The mother should have sole parental responsibility on an interim basis for reconsideration on a final basis.
As a result the considerations of equal shared time are not triggered or substantial and significant time if reasonably practicable.
Conclusion
I am left with the strong impression that the Gainforths are both loving and committed parents. The birth of D seems to have been a turning point. There was increased pressure on the family through the inevitable absence of the mother with D at hospital and for ongoing medical treatment.
When D was six months old the mother lost the love and support of her mother.
Early in 2009 the father was assaulted by a student at school. The father was already struggling with a full work load at school and the needs of three young children at home. The father underestimated the impact on him of the incident with the student.
Two months after that incident E was born.
The father’s stress escalated. He was less available emotionally to the family. The mother was concerned to protect the children and carried more of the care of the family. Arguments between the parents became louder and began to be indirectly physical.
The marriage broke down and the parents maintained the status quo for the children for a year. However, problems of the previous years remained unacknowledged.
The children themselves must certainly have been affected by the events that occurred. They need stability. Continuing in the family home will promote that. Their mother has provided more of their day-to-day care. That is not to say that the father has not been fully involved in their lives which he has.
D and E have struggled with the separations from their mother although benefitting from the time with their father.
The children should remain in the home in the primary care of their mother. They are likely to enjoy time with their father more if there are not so many separations and exposure to conflict is reduced.
The focus of the father was on the nights in a fortnight the children should spend with him. For young children, especially D and E, the regularity of the time which they spend with their father is more important.
Accordingly I have made orders which provide for the children to see the father regularly through the week and for alternate weekends with each parent.
It will assist the children to have their paternal grandmother present at least on the first two weekends away from their home. I do not consider that supervision is required. The presence of the paternal grandmother is for assistance and support.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on
15 September 2011.
Associate:
Date: 15 September 2011
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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