Galvin and Galvin

[2016] FCCA 2742

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALVIN & GALVIN [2016] FCCA 2742

Catchwords:
FAMILY LAW – Undefended parenting hearing – high conflict –clear views expressed by child aged 15 in family report.

Legislation:

Family Law Act 1975

Cases cited:

Aon Risk Services Australia Limited v Australia National University [2009] HCA 27

Applicant: MR GALVIN

Respondent: MS GALVIN

File Number: DGC 1237 of 2008

Judgment of: Judge Harland

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Dandenong

Delivered on: 13 October 2016

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. That the application in a case filed 29 September 2016 be dismissed.

2. That all previous parenting orders are discharged.

3. That the mother and father have equal shared parental responsibility for the child X born (omitted) 2001 (“the child”).

4. That the parties are restrained by injunction from changing the child’s enrolment at his current school without written consent of the other.

5. That the child live with the mother.

6. That the father spend time with the child during school terms when the father is not working, for up to and not exceeding 12 days per calendar month.

7. That during the father’s time with the child during the school term, the father is to ensure that the children attend school and any normal scheduled activities at all times.

8. That the father spend time with the child during school holidays, for up to and not exceeding half the school holidays, subject to the father’s work commitments at times to be agreed between the parties.

9. That changeovers in Melbourne are to take place at the mother’s home.

10. That in the event that the father is not able to see the child on the nominated dates, he is to provide written notification to the mother no later than 7 days prior to the scheduled date and the child will remain in the mother’s care during that period.

11. That the father is to provide the mother with his work roster, together with his nominated dates to spend time with the child in accordance with these orders, within 72 hours of his receipt of the roster from his employer.

12. That notwithstanding orders 6 and 7 above, the father spend time with the child from 13 December 2016 until 17 January 2017, and that the father be at liberty to travel with the child to the (country omitted) and (country omitted) during that period, and the father is to provide the mother with an itinerary, including flight schedules, accommodation and contact details for the period he and the child are away, by 30 November 2016.

13. That the father return with the child to the mother’s home in Melbourne by 18 January 2017.

14. That notwithstanding any other order, the child spend time with the mother from 13 December 2017 until 17 January 2018, and the mother be at liberty to travel overseas or within Australia with the child during that period, if the mother proposes to travel with the child then the mother is to provide the father with an itinerary, including flight schedules, accommodation and contact details by 30 November 2016.

15. That if either of the parties intend to take the child out of the Commonwealth of Australia they will give the other party 30 days notice in writing of their intention to do so. That the notice will contain the proposed itinerary and contact details whilst the child is overseas.

16. That the consent in writing of both parties to allow the child out of the Commonwealth of Australia will be sufficient notice to set aside the said passport watch for the time the child is out of Australia.

17. That if either of the parties intend to take the child interstate within the Commonwealth of Australia they will give the other party 14 days notice in writing of their intention to do so. That the notice will contain the proposed itinerary and contact details whilst the child is interstate. Both parties are required to agree to this proposal in writing.

18. That each of the parties, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and discussing these proceedings with or in the presence or hearing of the child or upon permitting any other person to do so.

19. That the father is to collect the child from the mother’s home at the beginning of his time and is to return the child to the mother’s home at the end of his time.

20. That otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1237 of 2008

MR GALVIN

Applicant

And

MS GALVIN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for parenting orders.  The parenting orders concern arrangements for the child X born (omitted) 2001 (“X”). This application has been listed for final hearing since orders made by Judge Jones on 23 November 2015.  Despite that, the father did not file an application in a case seeking an adjournment of the hearing until 29 September 2016.  In that application the father annexes a schedule of his work flights and proposes alternate dates when he would be available.  The father has raised the issue previously but not in the proper form. 

3. The parties have been in and out of Court since 2008.  Just this year alone, the father has filed an application in a case on 11 April 2016, a fresh application in a case on 9 June 2016, and an amended application in a case on 2 September 2016.  The father is well aware of the proper way of raising substantive issues with the Court.  He did not raise the issue of adjourning the proceedings in his earlier applications in a case.

4. I am aware, through my staff, that the father has sent numerous emails communications to chambers. I am not aware of the content of those emails.  The father is also on notice that chambers will not deal with substantive issues by way of correspondence.  Each time a litigant or lawyer emails chambers, an automatic response is sent back with a link to the notice to litigants and legal practitioners with respect to communicating with judges’ chambers.  I have not seen any of the correspondence he has sent to chambers, as that would be inappropriate.

5. The father is an experienced litigant in this Court, and it was open to him to file an application in a case much earlier with an affidavit in support.

6. I note, too, that the father did not attend the family report interview. The family consultant addresses this in her report.  She says that the father indicated that he was not aware that he had to attend, which she queried, given the previous family reports that have been prepared and his attendance at Court many occasions previously.  He told her that the Court was aware of his work schedule.

7. The father’s attitude indicates a level of arrogance.  Parties are to be given the opportunity to be heard but it is not an opportunity at their convenience.  This is a very busy Court that has to juggle many competing cases.  It is not possible to schedule hearings in accordance with parties’ work schedules.  The husband has been on notice of this for almost a year.  He raised this issue before me on 26 September 2016 and also I addressed it then, and confirmed that the hearing would take place today.  I also raised with both parties the need for them to agitate any further parenting issues they wished to today, because it is not in X ’s best interests for him to spend the short time he has left as a child with his parents litigating in Court.

8. Despite this, the father has not filed any further evidence.

9. The mother relies on her earlier affidavits and has filed a case outline, in compliance with the orders made earlier.  She addresses the relevant legislative provisions with respect to parenting issues.  The case outline is not evidence but is by way of submissions to the Court, explaining why she seeks the orders that she does.

10. It was clear on the last occasion that the father was unhappy with the family report.  He was told that he would have the opportunity to cross‑examine the report writer.  He has not attended Court today and has not taken up that opportunity.  I also refer to the High Court decision of Aon Risk Services Australia Limited v Australia National University [2009] HCA 27 and its comments with respect to case management obligations of the Court. I dismiss the father’s application in a case and the hearing proceeds today on an undefended basis.

11. The mother seeks orders for sole parental responsibility, for X to live with her, and for X to spend time with the father in accordance with his wishes.

12. The father seeks that the equal shared parental responsibility order remains in place, and seeks equal time with X.  I have read his previous affidavits that touch on parenting issues, including his affidavits filed 19 March 2015, 6 July 2015, 14 March 2016, 9 May 2016, and 26 September 2016.  There is very little in his affidavits that discuss what is in X’s best interests.  Rather, he talks about what he thinks is fair.  It is clear he thinks it is unfair that his equal time arrangement was reduced by interim orders made last year.

13. In the father’s affidavit of 9 May 2016 he refers to his work contract finishing on 30 November 2016.  He has not provided any further information to the Court about his future work status.  This is despite it being an issue raised by me on the last occasion.  Currently the father lives in Perth and works on a fly-in fly-out basis, with two weeks on and two weeks off, and he flies to Melbourne to spend time with X.  The Court is not assisted by knowing whether or not his contract has been renewed or that there will be some other work arrangement in place.  Presumably, given the father has remarried and has a young child who are living in Perth, he will remain there.

14. The mother has also filed affidavits in the proceedings and relies on her affidavits filed earlier, including the affidavit of 2 November 2015.  She describes herself as being the primary carer for the children, and the parties have two other children who are over the age of 18, and speaks about the difficulties of communication with the father, and the father taking X to school and enrolling him at a school in Perth without her knowledge, which occurred in late‑2014.

15. The family consultant released her report on 20 September 2016.  She details the history between the parties and the proceedings.  She notes that the mother has been the primary carer for X, with the father spending significant periods of time overseas and in Western Australia for work.  She records that the father’s parents often see X during his time, that the mother does not have family in Australia, her family being in the (country omitted) where both parties are from.  She records that the parties have minimal communication with each other and it is primarily via text messages.  Both parents have reported some problems with adherence to the orders, and one of the complaints the mother makes is that the father will often over-hold X and not return him.  The father acknowledges as much, and says sometimes it is because X does not want to return.

16. The family consultant identified further issues during the assessment as being:

    a)the ongoing acrimonious nature of the parents’ relationship and their dual relinquishment of responsibility for this;

    b)the extent to which X is caught in the conflict between his parents;

    c)the ongoing adversarial nature of proceedings in relation to both property and parenting matters; and

    d)the parents respective capacity to support X’s relationship with the other parent.

17. The mother reported a history of a difficult relationship with the father, which includes family violence during their relationship, and also difficulties with the father not returning X on time and to the handover point which, in the orders currently, is at McDonald’s.

18. The father reported to the family consultant that he has found the arrangements for the nine months problematic.  He says that the changeovers have been difficult and described the mother as stupid.  The father said he wants to ensure that X succeeds in life and planned to buy him a car and wanted him to study to be a (occupation omitted).  He expressed concerns about the mother’s care of X, claiming that X is often sick and appears haggard, and complains that the mother does not seek medical treatment for X in a timely way.  The father does not address any of this in any affidavit material.

19. The father said that he probably kept X beyond the Court orders, and said it was either because of X being ill or to reduce transport costs or because X wanted to stay longer.

20. She recorded that at times Mr Galvin became quite heated and his feelings of animosity towards the mother were clear.  He talked about bringing a further application to the Court with respect to travel to (country omitted) next year.

21. The family consultant briefly interviewed the parties’ 18 year old son, Mr A, because at the time the proceedings were instituted he was included in the order as he was under age 18.  He describes a difficult relationship with his father which broke down in mid-2015.  He spoke about X being caught up in the conflict between his parents which he also has experienced for many years.

22. The family consultant then interviewed X, who was 15 years and five months at the time of interview.  She describes him as polite, composed and thoughtful.  He was very aware of the reason for his attendance at interview, and it was clear that he had been exposed to the Court proceedings and the issues surrounding his and his siblings’ care and the conflict between his parents for many years.

23. At paragraph 31 of the family report, the family consultant records that X described the current arrangements, where he lives primarily with his mother and spends block time with his father, as perfect.  He thought that when his father was at home he should stay with him, and that when his father is away he should stay with his mother, but went on to say that he wants to spend a larger proportion of his time with his mother.  He said that the mother does more for him than his father, and spends more quality time with him, and that the father does not attend activities such as things at school or other events that he is involved in.

24. At paragraph 32, X described as being very unhappy when his father took him to Perth because his father did not explain what was happening and used his words against him to explain why he was returning to Melbourne.  He thought that the father only returned him because of being warned by the Court and felt that his father should not have removed him in the first place.  He was positive about spending time in his father’s home and about his baby brother.  X then went on to express concerns about his parents continuing to argue with each other, and said he would like them to talk to each other without arguing but accepted that this was an unrealistic wish.  He said there were often arguments about who should pay him allowance, and that the father thinks that he should receive child support payments directly. This is not appropriate.

25. X’s wishes were clear.  He wishes for drop-offs to occur at his mother’s home and not at McDonald’s, and that he would like to split his time between his parents on an eighteen/twelve day split, spending more time in his mother’s care.

26. Under the evaluation section of the family report, the report writer notes that whilst it was clear that X had been subjected to upsetting information and views about either parent shared with him by the parents, he had quite independent thoughts about his parents, and that she had a lengthy discussion with him about various proposals for time and care arrangements, and that the proposal for him to spend 18 days with his mother and 12 with his father was the arrangement that he felt most comfortable with.

27. She expressed significant concern about both parents’ inability to shield their children from their negative views regarding the other parent.  She formed the view that given the father’s presentation over the telephone and his descriptions of the mother, that he may have difficulty controlling his temper and have an inflated sense of his rights, as can be seen in his continued pursuit of equal time arrangements, despite him being absent from Melbourne for significant periods of time.  This is consistent with the tone of his affidavit material and his reference to current arrangements as being unfair.  The inference from that is that it is unfair to him rather than it being unfair to X.

28. She expresses concerns about the protracted nature of the proceedings and the need for this to come to an end for X’s sake.  It is also of some great significance that X expressed some relief to the family report writer when she indicated that the judge would make the decision rather than him.  That is an indication of the level of pressure he feels and the discomfort in being constantly in the middle of the conflict between his parents.

29. As can be seen, neither of the parents’ proposals are in line with the recommendations of the family report, and neither have filed material close to the family report to give evidence as to this.  Whilst the mother did not have questions of the family consultant, the family consultant gave oral evidence at my request addressing the competing proposals.  With respect to parental responsibility, she said she could understand why the mother was seeking sole parental responsibility, given that she has been the primary carer and given the difficulties with respect to communication, but that most of the major decisions for X are already in place.  There may be some disputes with respect to health but I do not have any evidence before me about that.  I propose to make an order restraining the parties from changing X’s school without consent, to avoid a repeat of what happened in late‑2014.

30. The family consultant gave very clear evidence that the views X expressed were his own and they had a lengthy discussion about various spend time with arrangements, and he discussed the pros and cons of those arrangements and was very clear in his wishes.  He spoke about the options and spoke positively and negatively about both parents.  He was very clear that he does not want his parents to continue to fight over him, and that he does not want to hear either parent denigrating the other.

31. My concern with respect to the mother’s proposal that X spend time in accordance with his wishes is that it would place X directly in the middle.  I suspect that he would be pressured by both parties to spend time in accordance with what they think is best for him.  This is a matter where it is necessary to have detailed orders with respect to the spend time arrangements in an effort to limit any further disputes.  It is always possible for parties to consent in writing to different arrangements but that seems unlikely in this case, given the history of the matter.

32. The best interests of X are paramount, not the interests of both parents, and it is clear that X has a meaningful relationship with both his parents.  It is also clear that both parents are lacking in capacity to protect X from the conflict, and I have doubts that they will be able to address this in the future.  The orders will provide for X to be able to maintain his relationships with extended family members on both sides.  These orders should reduce the risk of there being further proceedings.

33. I raised with the parties on the last occasion that I was considering declaring the proceedings vexatious.  Neither party has addressed those issues.  I do not propose to go as far as that today but do indicate that these parenting orders are final orders and, in order to bring a matter to Court, the parties would have to establish a significant change in circumstance.  Arguments about holidays and other issues do not fall within that category.  The parties have had the opportunity to agitate any further time arrangements, including holiday time, and have not.  There will be a mechanism in the orders for overseas holidays. 

1. The parties should take very seriously the request of their son not to continue fighting over him and exposing him to the conflict.  The Court cannot order parents to behave better.  That is a matter for them, but they should listen to what not just their youngest son has said but their other son as well.

2. The father must comply with the orders and not over-hold X without the mother’s written consent.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 25 October 2016