Gardiner and Gardiner

[2016] FCCA 1451

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARDINER & GARDINER [2016] FCCA 1451

Catchwords:
FAMILY LAW − Whether mother have sole parental responsibility – all parents have equal shared parental responsibility − parent’s ability to communicate − when overnight time should commence with the young child.

Legislation:

Family Law Act 1975 (Cth),ss.4(1), 60B, 60CA, 60CC, 61DA, 61DAA, 65DAC

Cases cited:

Chappell & Chappell (2008) FLC 93–382
Goode & Goode  [2006] FamCA 1346

Applicant: MR GARDINER

Respondent: MS GARDINER

File Number: DGC 476 of 2015

Judgment of: Judge Phipps

Hearing dates: 17, 18 February 2016

Date of Last Submission: 18 February 2016

Delivered at: Dandenong

Delivered on: 17 June 2016

REPRESENTATION

Solicitor for the Applicant: Mr Meier

Solicitors for the Applicant: Meier Denison Guymer Pty Ltd

Counsel for the Respondent: Mr Combes

Solicitors for the Respondent: Heinz & Partners

ORDERS

1. That all previous orders are discharged.

2. That the mother have sole parental responsibility for the child X born (omitted) 2013.

3. That the mother keep the father informed of any decisions she makes concerning major long-term matters in relation to the child.

4. That the child spend time and communicate with the father:

   (a)Until the child turns four, from 9.40am to 3.40pm each Tuesday;

   (b)Subject to paragraph 4, and upon the child turning four from 9.40am Monday to 3.40pm Tuesday each alternate week and upon the child attending kindergarten (if days clash) and school commencing from 9.40am Saturday to 3.40pm Sunday each alternate week; and

   (c)Otherwise as agreed.

5. That time pursuant to paragraph (4)(b) shall not commence until the father has completed a Men’s Behavioural Change Course and provide evidence of completion of same to the mother.

6. That unless otherwise agreed, changeovers for the purpose of the child spending time with the father shall occur at (omitted) Train Station at Melbourne.

7. That the father is restrained by injunction from:

   (a)Taking the child swimming unless in the company of a skilled swimmer; and

   (b)Bringing or allowing the child to be in contact with Mr A also known as Mr M.

8. That the father comply with the child’s dietary requirements.

9. That the parties use a communication book for the purposes of communication between the parties concerning the child.

10. That the father is entitled to receive kindergarten and school reports and the like and to attend all school and kindergarten events normally attended by parents.

11. Each party keep the other informed of any serious illness or injury suffered by the child while the child is in that parties care.

12. That upon the child turning three, the parties attend a Family Relationship Centre to discuss whether the child can commence overnight time with the father prior to the child turning four.

13. Otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 476 of 2015

MR GARDINER

Applicant

And

MS GARDINER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties have one child X born (omitted) 2013.  They agree that he should continue living with his mother.  The issues are:

   a)Whether the parents should have equal shared parental responsibility or whether the mother should have sole parental responsibility;

   b)Whether overnight time should commence in six months or 24 months; and

   c)Whether prior to overnight time commencing the father should attend a parenting course.

Proposals

1. The father’s proposals:

   1.That the parties have equal joint parental responsibility for their child X born (omitted) 2013.

   2.That the child live with the Mother.

   3.That the child spend time and communicate with his Father as follows:

   a)For a period of 6 months from today from 9:40am to 3:40pm each Tuesday;

   b)Thereafter from 9:40am Monday to 3:40pm Tuesday and upon kindergarten (if days clash) and school commencing from 9:40am Saturday to 3:40pm Sunday each alternate week;

   c)By telephone on Thursday at approximately 4:00pm and Saturday at approximately 3:00pm each week;

   d)In 2016 and each alternate year thereafter from 9:40am 24 December to 11:00am on 25 December;

   e)In 2017 and each alternate year thereafter from 11:00am 25 December to 3:40pm on 26 December;

   f)In (omitted) for 4 hours on X's Birthday at times agreed or failing agreement from 12noon to 4:00pm;

   g)Such other times as the parties agree upon.

   4.Unless otherwise changeovers occur at (omitted) Station, Melbourne.

   5.If the child suffers an injury or illness requiring treatment the other party be advised of same as soon as possible together with the name of the treater.

   6.The commencement of overnight time is conditional upon the Father successfully completing a Men’s Behavioural Change Course.

   7.The Father be restrained from:

   a)Taking the child swimming unless in the company of a skilled swimmer;

   b)Bring or allowing the child to be in contact with Mr A also known as Mr M.

   8.The parties use a communication book.

   9.The parties keep each other informed of residential addresses.

   10.The Father be entitled to attend school/kindergarten events and receive reports and other communications therefrom.

   11.The parties attend mediation to discuss extensions to time spent periods.

2. The mothers proposals:

   1.That the mother have sole parental responsibility for the child, X, born (omitted) 2013 (“X”).

   2.That X shall live with the wife.

   3.That X spend time with and communicate with the husband as follows:

   a)For a period of 24 months for one week day per week from 10:00am until 3:00pm, in alternate weeks, one week in the Melbourne area and one week in the (omitted) area; and

   b)In 24 months times providing the father has successfully completed parenting course through Relationships Australia and a Men’s Behavioural Change Course, from 10am Monday until 4pm Tuesday in alternate weekends and upon X attending kindergarten and or school then each alternate Saturday from 10am until Sunday 4pm as opposed to the midweek time.

   c)Such further or other times as may be agreed.

   4.That the father is restrained by injunction from:

   a)taking the child swimming unless in the company of a skilled swimmer; and

   b)bringing or allowing the child to be in contact with Mr A also known as Mr M.

   5.That the father shall continue to comply with the child’s dietary requirements.

   6.That the parties use a communication book.

   7.The parties keep the other informed of residential address, school reports, treating medical officers of the child.

Background

1. The father was born on (omitted) 1973 and is currently aged 42. The mother was born on (omitted) 1978 and is currently aged 38.  The parties commenced living together in 2009, married on (omitted) 2011 and separated in August 2013.  The child was born on (omitted) 2013 after the parties separated.

2. At the time of separation the parties both lived in (omitted).  The father remains living in (omitted) while the mother and the child moved in February 2015 to live with her mother and stepfather near (omitted).  The move was against the wishes of the father which resulted in him commencing these proceedings on 19 February 2015.

3. Until the mother moved to (omitted), the father spent time with the child two or three times a week at the mother’s home or in a public space and always with the mother present.  When the mother moved to (omitted) the father did not see the child until an interim order was made on 19 May 2015.  This provides for the child to live with the mother and spend time with the father each Tuesday from 10.00am to 4.00pm.  The child has spent time with the father since in accordance with this order.

4. The father works as a (occupation omitted) at the (employer omitted).  During the summer period, eight weeks in December and January he works Wednesday to Sunday 9.00am to 3.00pm and about 5.00pm to 10.00pm or 10.30pm and on Saturdays 9.00am to 11.00am and 6.00pm to 9.00pm.  During the non-summer period he works Wednesday to Sunday generally between 11.30 am and 2.00pm and then 6.00pm to 9.00pm.  Consequently, the times he spends with the child are on Tuesdays and the proposals for overnight time are overnight on Tuesday.

5. The father has attended the Tuesdays mostly with his niece Ms M.  She is a single mother with a son born (omitted) 2011.  She gave evidence and describes happy times between the father and the child at various locations including the zoo and areas where the child can play.

6. Changeovers have presented some difficulties with the child clinging to the mother and requiring encouragement to go to the father.  On 15 December the child would not go to the father.  Both parents tried to encourage him and the mother at one point tried to walk away.  The mother stayed for an hour and a half trying to convince the child to go and eventually agreement was reached that since the child was not settling the parties agreed the time would not take place on the day.

7. At each changeover the mother changes the child out of the clothes she provides into clothes that the father provides and then changes him back at the end of time.  She says this is because the child has returned with his clothing covered in food stains which she found difficult to remove.  Each parent has their own pram.

8. The child suffers from eczema and has some specific dietary requirements.  The mother says that he has an allergic reaction to various foods and these can cause diarrhoea and vomiting.  Dr S, paediatrician, in (omitted) saw the child on 7 September 2015.  Extracts from this report are:

   8.   In clinic today X was alert and bright, showed excellent growth parameters and had a normal examination though evidence of an upper respiratory tract infection.

   9.   X’s clinical history and skin prick testing indicate no immediate/IgE-medicated allergy.  However, given X’s history of exposure and symptoms with soy and cow’s milk, I would be suspicious of a non- IgE-medicated allergy and would support Ms Gardiner’s current undertaking of avoiding soy and dairy-based projects.  I have explained to Ms Gardiner that this type of allergies generally improve somewhere between the child’s 1st to 4th birthday and would advocate a trial of these foods every 2 to 3 months to see if X can tolerate small amounts.

9. He enclosed with the letter an eczema management plan and made a referral to a Mental Health Social Worker so that the mother could have some behavioural and sleep strategy advice as well as address issues of separation anxiety.

10. The parties dispute the extent to which the father is complying with the child’s dietary requirements but in determining issues in dispute it is not a significant issue.

11. The mother relocated to (omitted) to have the support of her mother and stepfather.  This includes financial support as she lives with them in their house.  The father remains living in (omitted) and does not intend relocating to (omitted).  He has regular employment there and is established in (omitted).

The father

1. The father suffers from depression.  A letter from Dr D dated the 13 February 2015 says that he has seen his treating medical practitioner for 10 years and the father has been a patient at the clinic for over 20 years.  The letter says:

   10.    Mr Gardiner has been diligent over this time with attending his mild-to-moderate depression, keen to ensure that he does all in his powers to relieve this condition.  He continues with counselling.

   11.    Mr Gardiner has shown himself to be loyal and caring to family and friends despite many major disappointments from family members who have abandoned him, including his father.  His mother, who he was very close to, died several years ago; a major blow to his social networks.

2. The father says that until June 2014, he saw Dr E, psychiatrist, regularly.  He stopped seeing her because it was too expensive.  He obtained a referral to Dr P, a psychologist, who he says he saw for the first time on 18 February 2015.

3. The father had been in a new relationship but not a living with relationship.  That relationship came to an end on the Monday before the hearing commenced.

4. The mother is concerned about the father’s ability to care for the child.  She says that when the father was seeing the child in her presence he did not carry out basic care tasks and could become impatient with the child.  She describes one occasion where he lifted the child roughly.  Once the father started seeing the child on Tuesdays he had to be shown how to change a nappy.

5. There is a dispute between the parents about the father’s ability to care for the child.  The father has undertaken a parenting coaching course with Ms C.  She is a Parent Educator and runs a small business known as Easier Parenting.  She does this face-to-face, by telephone, Skype and email sessions.  She describes how she listens to client’s parenting experiences and issues and then teaches specific relevant parenting skills.

6. The father has participated in six personalised face-to-face parenting coaching sessions with Ms C during January and February 2016.  Each session was at least an hour and she said at the hearing that there was an appointment for a follow up session.  She emailed the father following the session with relevant parenting information related to the child’s age.  She prepared a report and gave evidence.

7. Ms C’s evidence illustrates the fathers lack of practical knowledge about caring for a child of X’s age but also shows that he has benefited from the coaching sessions.  Ms C was positive about the father’s participation and approach.

8. Ms C’s report illustrates the father’s lack of practical knowledge about the care of a child of X’s age but also shows that the father has made the effort to learn practical parenting skills.

9. At the first session he told Ms C the child hated books.  Ms C says that after reading about the value of reading, the father tried hard and had great success in reading with his son.  Ms C taught the father the importance of holding the child’s hand while he was walking particularly in the city.  She taught that the child be offered the choice of holding hands or being strapped back in the stroller.  She suggested that the father take and rotate some books, toys, music, healthy food and water with him each visit in a backpack.

Family Report

1. The family report was prepared by Ms D.  She gave evidence.  She interviewed the parties and observed the child with each of the parties on 6 November 2015.

2. In relation to overnight time Ms D says this in the report:

   12.    There is the issue of overnight arrangements, this being proposed as a future longer term arrangement between father and son.  It is considered that it would be in X’s best interests to continue spending time each Tuesday with Mr Gardiner in order to develop being comfortable and familiar in paternal care.  Consideration of overnight arrangements appears premature at this stage given X’s strongly developed attachment with his mother and the likely response of a high degree of distress from this child should he experience extended separation from Ms Gardiner.  It is also considered highly probable that Mr Gardiner may struggle with extended care of a child who may be unsettled and require sensitive responses in relation to maternal separation.

3. Ms D said that the father would benefit from engagement in a practical parenting program, which the father has subsequently done.  In her oral evidence Ms D acknowledged this.  She repeated what she had indicated in her family report that it was premature to look at overnight arrangements.  She said there may be value not just in putting aside the overnight time but looking at issues of improving quality of time between the child and his father and there might be value at looking at those issues 12 months down the track.  She said that overnight arrangements are not the only way to deepen attachment and deepen the child’s feelings of being comfortable with certain arrangements.  She said she could not state a time in the future where overnight time might be appropriate.

4. Ms D’s observations elsewhere in her report support her conclusion.  During the observation of the child with the father, she describes the father is nervous during the observation period.  At times the father needed gentle direction from Ms D when attempting to engage in play activities with the child.  She says she observed the child point to the door in search of his mother.  After approximately 15 minutes the child began to show some distress in respect of separation from his mother.  He transitioned easily back to maternal care, waving and engaging in farewells with his father.

Children’s provisions

1. Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). The objects and principles are contained in s.60B. Section 60CA provides that the best interests of the child is the paramount consideration in considering parenting orders. The best interest considerations that the court must consider are in s.60CC.

2. Section 61DAA is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. This presumption may be rebutted if there are reasonable grounds to believe that there has been family violence or abuse of the child or the court is otherwise satisfied that it is not in the best interests of the child for the parties to have equal shared parental responsibility.

Best interests

1. The pathway through the legislation referred to by Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 is to consider best interest considerations before considering parental responsibility.

2. The relevant best interest considerations are the first of the primary considerations, the benefit to the child of a meaningful relationship with each parent, and the additional considerations, the child’s relationship with each parent, the effect on the child of any change, and the ability of each parent to provide for the child’s needs.

3. The child will benefit from a meaningful relationship with each parent as is now.  The mother is the child’s primary carer.  Ms D’s view that the child should not have overnight time because of anxiety and distress from being separated from the mother is relevant to the child’s relationship with the father.  The child’s relationship with the father will not be promoted if the child becomes distressed in his care.  Ms D’s opinion is that there are other ways to further the relationship.

4. The same considerations apply to the additional consideration of the child’s relationship with each parent.  The mother is the child’s primary carer and his principal attachment is to the mother.  Again, Ms D’s evidence shows that the child’s relationship with each parent may suffer if overnight time is attempted before the child is ready.

5. The same evidence applies to the consideration of the effect on the child of any change.  Overnight time too soon will, on Ms D’s evidence, cause the child anxiety and distress.

6. As to the father’s ability to provide for the needs of the child, the father has improved his practical ability by undertaking the parenting course.  The significant evidence is that of Ms D.  She considered it highly probable that the father may struggle with extended care of the child who may become unsettled and require sensitive responses in relation to maternal separation.

Conclusion

1. The conclusion from the consideration of the best interest considerations is that the child’s best interests will not be served by having overnight time with the father in the immediate future.  It would not promote the child’s relationship with the father and may even be detrimental to the relationship.  Overnight time in the immediate future would be likely to cause the child anxiety and distress.

1. The question then is what orders can be made.  The mother proposes that overnight time commence in early 2018 when the child is four.  One possibility is to make an order for daytime time only and then order the parties to attend mediation to consider overnight time at the commencement of 2017.  They may not reach agreement and indeed there is a likelihood they will not.  That would not meet the best interest consideration of making an order least likely to lead to further proceedings.

2. The better solution is to make orders as proposed by the mother but order that the parties engage with a Family Relationship Centre in February 2017 to consider whether overnight time could be introduced earlier than early 2018.

Parental responsibility

1. The mother proposes that she have sole parental responsibility while the father proposes that the parents have equal shared parental responsibility.

2. If parents share parental responsibility for a child and that involves making a decision about a major long-term issue the order requires each parent to consult the other in relation to the decision and to make a genuine effort to come to a joint decision about that issue. This is the provision of s.65DAC of the Family Law Act 1975 (Cth). Major long-term issues are defined in s.4(1) and are the child’s education (both current and future), the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

3. Section 61DA requires the Court to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe there has been abuse of the child, family violence or the evidence satisfies that it is not in the best interests of the child to apply the presumption. While the mother alleges some swearing by the father and an incident of rough handling of the child by the father, the allegations are not serious enough to constitute reasonable grounds to believe that there has been family violence or abuse of the child. That leaves the question of whether it is not in the best interests of the child.

4. In Chappel & Chappell (2008) FLC 93–382 the Full Court of the Family Court of Australia said at [75]:

   13.    In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.

5. While there have been difficulties at changeover the parties generally have been civil to each other.  Since August 2015, they have exchanged information about the child using a communication book.  The mother advises of the child’s health and well-being during the previous period and the husband describes the activities undertaken with the child.  Apart from this the parties do not communicate.  The father did not know the mother’s address once she moved to (omitted) and the mother did not communicate with him.

6. Matters concerning the child’s health have been dealt with solely by the mother.  The decision to move from (omitted) to (omitted) was made by the mother without consultation with the father.  Issues about education will involve consideration of which kindergarten and school the child will attend.  Given that the parents live a considerable distance apart, in practical terms, these will be investigated by the mother.  The parties meet at (omitted) Station at the commencement and conclusion of the child’s time with the father and otherwise they do not communicate other than the use of the communication book.  The type of consultation required by an order for parental responsibility cannot be conducted at a busy railway station with a child who has on occasions gone to his father with difficulty.

7. Should the mother use the only form of communication available to the parties the communication book to propose a school or kindergarten and the father then perhaps a week later says he does not agree, the prospect of prompt resolution would be slight and so a risk of further proceedings would exist.  Communication only through the book would not be a satisfactory way of consulting and endeavouring to reach agreement about major long-term medical matters.

8. The lack of communication between the parties and so the lack of ability to carry out the duty placed on each parent by an order for equal shared parental responsibility shows that the child’s best interests will not be served by an order for equal shared parental responsibility.  An order that the mother keep the father informed of these decisions is appropriate.

9. The current interim orders provided for the time on Tuesdays to be between 10.00am and 4.00pm.  The mother proposes between 9.40am and 3.40pm because it coincides with the train timetable.  I will use those times.

10. The mother proposes orders that the father attend a parenting course at Relationships Australia and a men’s behavioural change course and he continue to attend upon his treating psychologist.  The father agrees to attend a men’s behavioural change course.  The father’s attendance at the programme conducted by Ms C has increased his parenting skills and a further parenting course is not necessary.  The father is attending a psychologist without an order of the court.  An order is not necessary.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Phipps.

Date: 17 June 2016