Garner and Garner
[2010] FMCAfam 216
•22 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARNER & GARNER | [2010] FMCAfam 216 |
| FAMILY LAW – Parenting – whether interim orders made for children to spend equal time with their parents should be continued – relationship with boys aged eight and twelve with each of their parents – weight to be given to their views. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA Children and Young Persons (Care and Protection) Act 1998 (NSW) No. 157 |
| Calvert & Calvert [2008] FMCAfam 101 Chappell & Chappell (2008) 39 Fam LR 627 Goode & Goode [2006] FamCA 1346 Harrison & Woollard (1995) 18 Fam LR 788 McCall & Clark [2009] FamCAFC 92 R & R Children’s Wishes (2000) 25 Fam LR 712 |
| Applicant: | MS GARNER |
| Respondent: | MR GARNER |
| File Number: | SYC 7246 of 2008 |
| Judgment of: | Walker FM |
| Hearing dates: | 4 & 5 March 2010 |
| Date of Last Submission: | 5 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rees |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr Moore |
| Solicitors for the Respondent: | Slade Manwaring Solicitors |
THE COURT ORDERS THAT:
The parents are to have equal shared parental responsibility for the children, [X] born [in] 1997 and [Y] born [in] 2001.
The children are to live with their mother.
Unless otherwise agreed the children are to spend time with their father during school term on a two weekly cycle:
(a)From after school on Wednesday in week one until before school the following Monday.
(b)The two weekly cycle is to commence in the first week of each school term.
(c)For the purposes of these orders, if on the date of the orders the children are spending the week with their mother, the fortnightly cycle will commence at the conclusion of that week. If the children are currently spending the week with their father, the fortnightly cycle will commence after the next week they spend with their mother.
The children are to spend half of each school holiday period with each parent as agreed but otherwise with their mother in the first half in years ending with an even number and with their father in years ending with an odd number. For the purposes of this order school holidays will be deemed to commence after school on the Friday of the last week of the school term.
Special days
The children are to spend from midday on Christmas Eve until 10.00am on Boxing Day with the parent with whom they would not otherwise be spending the first half of the Christmas school holidays.
The children are to spend time with their mother on Mother’s Day from 10.00am until 5.00pm if they would not otherwise already be in her care
The children are to spend time with their father from 10.00am until 5.00pm on Father’s Day if they would not otherwise already be in his care.
Unless otherwise agreed, for the purpose of changeover, the father will collect the children from the mother’s residence when he is spending time with them and the mother will collect the children from the father’s residence at the end of their time with him.
Each of the parents is permitted to telephone the children on every second day while the children are in the care of the other parent.
Each of the parents is to permit the children to telephone the other parent at all reasonable times.
Each of the parents is to keep the other advised of all contact details including landline and mobile telephone numbers.
The father and mother are each to attend a parenting after separation course, and undertake any further course or counselling session recommended by the centre which conducts the parenting after separation course.
The parent with whom the children are living or spending time is responsible for ensuring that the children attend dance lessons and dance competitions held during the time the children are with that parent. Where payment is required for such attendance, the parent responsible for ensuring attendance is also responsible for such payment.
IT IS NOTED that publication of this judgment under the pseudonym Garner & Garner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7246 of 2008
| MS GARNER |
Applicant
And
| MR GARNER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter where the parents disagree about the amount of time their two sons aged eight and twelve should spend with each of them.
Background
The parents married [in] 1994. The father is presently aged 56 and the mother is aged 40.
Their oldest son, [X] was born [in] 1997. [Y] was born [in] 2001.
The parents separated under the one roof in February 2009.
Interim parenting orders were made on 7 May 2009 which provided for the children to live on alternate weeks with each parent. The mother moved out of the matrimonial home on 20 May 2009 and the equal time arrangement commenced shortly after that.
The evidence
The mother relied on an affidavit which was sworn by her on
15 February 2010 and filed on 25 February 2010. She also relied on the affidavits of Ms B affirmed 29 January 2010 and filed 25 February 2010 and Ms K affirmed 2 February 2010 and filed 25 February 2010.
The father relied on his affidavit sworn on 24 February 2010 and filed on 25 February 2010.
In this matter the Court also had the benefit of a Family Report dated
4 February 2010 prepared by Ms Louise Salmon and an earlier memorandum to the Court by Ms Salmon dated 16 October 2009.
The proposals
The orders sought by the mother are set out in her Minute of Orders provided in the context of the proceedings. She proposed that there be an order for equal shared parental responsibility and that the children live with her. She proposed that they spend time with their father during the school term each alternate weekend from after school on Wednesday until 7.00pm on Sunday for half of school holidays and on special days. She also sought orders about the children’s participation in particular activities.
The father sought orders that the week about arrangement that had been put in place following the Orders made on 7 May 2009 continue or that alternatively, that the children live with him and spend alternate weekends with the mother.
The issues
The most significant issues appear to be the following:
·The level of trust and communication between the parents.
·The wishes of the children and the weight to be given to their wishes.
·The relationship between each of the boys and their father.
·Whether the father has inappropriately disciplined the children
·Whether the mother has been undermining the relationship between the boys and their father.
The relevant law
Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.
Primary Considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents
There is no issue in this matter that the mother has been the primary carer of the boys. She did not work after the birth of the boys. She re-entered the workforce at the end of November 2009 as a part-time community care worker.
The father is [in the healthcare industry]. He worked long hours during the marriage. He says in his affidavit that Sundays were the only day he had completely free to spend with the children.
The mother looked after most of the children’s needs when they were infants. When they were older she was responsible for taking them to school and preschool, helping with their reading and homework, being involved in school activities and organising their extra curricular activities. She attended to the health needs of the boys. The boys participated in swimming lessons, and Nippers. The mother says that she arranged participation in chess and extension maths lessons. In particular she organised the boys’ participation in ballroom dancing. The evidence is that the boys enjoy their ballroom dancing. Indeed the family consultant described [Y] as “passionate about his hobby of ballroom dancing.” The mother says in her affidavit that she took [X] to various forms of therapy when he was younger. Both parents told the family consultant that [X] had required professional interventions over time to address learning and developmental difficulties, mostly relating to speech, although at present he seems generally to be doing well academically.
The father while he makes criticisms of the mother, said in his evidence that she does a lot of “really good things” for the children and that they love it. He said that she had done so much for the school that teachers there might think that they “owed her.”
There is no doubt that the mother has a close relationship with the boys. The family consultant observed that [X] appeared relaxed with his mother and that “the relationship had a warm and natural tone.” She described similar observations of the relationship between [Y] and his mother.
The father referred to the limited amount of time he had available to spend with the children in the past. He says relatively little about his relationship with the children prior to separation in either his affidavit or in his discussions with the family consultant. He says, however, that he wants a role in their lives. He emphasised in cross-examination that he had made an enormous sacrifice to change his life about. The Court inferred that this is a reference to the steps he has taken in reorganising his working arrangements so that he is more available for the children. He says that since the interim orders were made he does not do work when the children are in his care, and that he [works] during school hours.
The father said in cross-examination that his relationship with [X] was not as good as it should be and that that was one reason why he wanted the equal time arrangement. While he attributed deficits in his relationship with [X] in part to what he says was the behaviour of the mother in organising activities which kept the boys away from him when he was available on Sundays, he commented that he was not saying that it was not his fault too.
It does not appear that the introduction of the equal time arrangement improved the father’s relationship with [X]. In July 2009 the parents met with [X]’s teacher and the school principal to discuss concerns raised by the school about [X]’s behaviour. The issue of counselling for [X] arose. School documents recorded that the father said that before a counsellor was involved he wanted to counsel [X] himself and wanted to use this as an opportunity to build a relationship with his son. He said that this may take a period of time. While there was some issue as to whether the father had said that he would “counsel” [X], he agreed in cross-examination that he saw this as an opportunity to “improve something that needed improvement.”
The father told the family consultant that he now has a better relationship with the children because he has more time with them. However, he also told the family consultant that at times he finds the children’s behaviour challenging and difficult to manage and that managing their poor behaviour is an ongoing battle requiring physical limitations. He was observed by the family consultant to be somewhat reserved in play activities with the children and not altogether at ease in children’s play. The family consultant commented that the father’s limited role in previously caring for the children along with his reserved manner and less communicative parenting style has “most likely” had an impact on the effectiveness of his discipline of the children.
The family consultant observed that [X] appeared remote and nonplussed as to how to respond to his father when she observed them together some eight weeks prior to the hearing. She said that [X] appeared “awkward” with his father and did not engage with him. In cross-examination she agreed that the relationship between [X] and his father was not a good one. She described it as “probably tenuous.” She observed [Y] to be spontaneous with his father and to settle in to play a game with him. Nevertheless, she included both boys in what she described as a somewhat “indifferent response to their father.” The father agreed that [Y] had been reluctant to leave his mother’s home to go with him when he had last collected him to spend the week with him prior to the hearing. He said that he did to know what was behind his behaviour on that occasion. The mother said that some weeks previously, in January, [Y] had trouble getting to sleep and started crying saying that his father had smacked him and earlier that day had hurt him when he grabbed his arm.
The father’s evidence at hearing was that more recently he can see that relations between he and [X] are improving although he qualified this by adding that he was not going so far as to say that things are as they should be. He said that there has been a big turnaround with [X] since he commenced high school at [omitted] High School about one month prior to the hearing. When asked if he was suggesting that [X] was happy and contented in the equal time arrangement the father responded “he will be” once what he considered were the reasons behind his difficulties with [X] were taken away. By this he meant the finality of orders and what he described as undermining by the mother.
The Full Court in McCall & Clark [2009] FamCAFC 92 discussed the approach which should be taken in considering the benefit to a child of a meaningful relationship with each parent. The Full Court in that matter considered that a prospective approach was to be preferred and that if the focus was on present relationships it could limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a parent and child at the date of the hearing. In this matter the current relationship between the boys, particularly [X], and their father, is problematic. However, there seems not to be a dispute that the boys would benefit from a significant relationship with their father. The mother proposed orders for the boys to spend substantial and significant time with him. The evidence of the family consultant and her recommendations are based on the father having a significant role in the boys life and involve him participating in various programs which the family consultant believes would enhance his parenting abilities and his relationship with the children. There is no doubt that the boys at present benefit from a meaningful relationship with their mother.
In this matter the Court finds that the children would benefit from a meaningful relationship with each of their parents.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother in her affidavit says that the boys have reported behaviour of the father’s towards them which she considers to be abusive. She says that on 12 November 2009 [X] told her that if he did not do what he was told, his father pinned him down so hard on the floor that he could not move. He said “I can’t tell if he is sitting on me or if he is holding me down, but I find it difficult to breathe.” In cross-examination the mother referred to being told by the boys that their father pinned them down on at least three occasions. This was confirmed by the father in cross-examination.
The family consultant said that the mother raised concerns about the father’s discipline of the children and told her about the father “pinning” [Y] to the floor. She said that the mother wanted to know whether what the children were telling her was happening was true. The family consultant asked the father about this and he told her that at times he finds the children’s behaviour difficult to manage and said that he “pins” the children to control them.
The father in cross-examination said that he had learned this technique at a child and family psychiatric unit where parents were given assistance in how to manage behaviourally disturbed children. He recollected that he had used it on three occasions. He said that he first used the technique on [Y] when he got the child face down on the floor with his head to one side and then sat on his bottom with his knees on either side of [Y]’s body and his hands on either his shoulders or upper arm, with his foot hooked over each leg to protect himself from being kicked by the child. He said that he held [Y] in this position for between 15 and 20 minutes and found it physically exhausting himself. The Court can reasonably infer then, that [Y] was struggling for this period of time.
The father said that he had done this because the boys were playing a particular game which involved slamming and pushing of doors and that potentially this could have resulted in injury to either of them. He said that it did not work on this first occasion, because when [Y] got up the boys “went for it again.” The father said that nevertheless he did the same thing on a subsequent occasion to [X], and that on a later occasion “I did [X] again.” He said that he only did this to the boys when they played the game which he considered dangerous and when they had not responded to other attempts by him to stop them. The last occasion he said when he did this to either of the boys was at the end of November 2009. The father’s evidence was that what he did not hurt the boys and that he did not consider it inappropriate. However, he said that he did think that it gave them an opportunity to complain to their mother.
[X] told the family consultant that he thought that his father “doesn’t seem like a parent” and that he is “a bit too violent” and gave the example of the father pinning he and [Y] to the floor. [Y] expressed concern to her about the way his father treated [X]. [X] told both his mother and the family consultant that he felt he had difficulty breathing when his father pinned him down as described.
The Court accepts that the father’s actions were taken in the context of him finding it difficult to manage the behaviour of the boys and were not intended to harm the boys. However there must be a concern that the father thought it appropriate to use a technique devised for the restraint of children with psychiatric disturbance on his sons. It appears too that the fact of the boys’ complaint to their mother was likely to have been a reason for the father ceasing to treat the boys in this manner. Perhaps the father’s relative inexperience in dealing with the boys’ behaviour is reflected in his actions. This seems to be the basis of the recommendation of the family consultant that the father should attend a program to assist in the management of children’s behaviour.
The father said that what he did did not “hurt the boys.” The Court does not find that he intended to hurt the boys. At the same time, this comment by him does not recognise the impact of his behaviour on the boys which is reflected in the way they described his actions. The boys have experienced this as violent behaviour. [X] described difficulty in breathing. It is of concern that the father did not recognise what he did as inappropriate. However, he has ceased treating the boys in this manner and has indicated that he will attend counselling. The family consultant, when she saw the children with their father, was of the opinion that they did not appear to be fearful of him. In these circumstances the Court would not make a finding that the boys, at this time, are at risk of physical harm in the father’s care.
Additional considerations
Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The boys saw the family consultant on three occasions. The first was on 15 October 2009. She then interviewed them both and saw them with their mother on 26 November 2009. She saw them with their father on 5 January 2010. She observed that [X] seemed under considerable stress. As mentioned earlier he complained to the family consultant about his father pinning he and [Y] to the floor. The family consultant recorded that he also made other criticisms of his father. She reported that he complained that his father “cares for himself more than the children”, “threatens them a lot”, “doesn’t help [Y],” “doesn’t care about what we like” and is “late for dance lessons.” She reported too that [X] complained that his father does not have a sense of fun and expressed frustration that his father spends time doing the shopping with he and [Y] rather than when they are at school. She also said that [X] told her that his parents needed to “get along better” and that he blamed their problems on his father’s behaviour. The family consultant reported that [X] said that unless his father’s behaviour changed “dramatically”, which he considered unlikely, he wanted to live with his mother.
The mother says that on many occasions since the end of May 2009 [X] has said to her “I can’t do it. Why can’t I live with you?” The family consultant agreed in cross-examination that [X] said to her that he found the week about “too hard.” The family consultant clarified that this did not meant that [X] did not want to spend time with his father but rather that he wanted to spend less time with him than he does now.
The family consultant recorded that [Y] told her “to stay in dad’s house for more that three days would be stress.” The family consultant set out the following in her report:
[Y] described time at his father’s house as “boring” and, because of this, he said that he ‘hated’ his father – the feeling seemed disproportionate to the cause. When asked why it was boring, [Y] said that his father liked slot cars and [Y] is not interested in slot cars. However at another point in conversation, [Y] mentioned that he like slot cars. He also expressed concern about how his father treats [X]. [Y] seemed prepared to recite a range of complaints about his father which, in the retelling, were difficult for the family consultant to decipher but involved the two boys being in ‘in trouble’ with their father for apparently no reason from [Y]’s perspective. [Y] also cited the example of being ‘locked out of the house.’ [Y] noted that his mother had encouraged him to ‘tell Louise about it.[1]
[1] Family Report by Louise Salmon dated 4 February 2010 at paragraph 44.
The father’s case is that what the boys say are not their true views. He says that their views are influenced by their mother and that she is undermining their relationship with him. He says that he thinks the mother has been working on the boys because he knows that when they are with him they are happy. This seems inconsistent with what the father has said about his difficulties managing the behaviour of the boys and what he has said over time about the need to improve his relationship in particular with [X] which he says is still not as good as it should be.
The family consultant expressed the opinion in her report that the children’s relationship with their father “appears to be severely compromised.” She expressed the opinion that:
There are several indicators of concern suggestive of the children’s extreme alignment with Ms Garner. These are the children’s negative attitude and language about their father; and propensity to seriously criticise his behaviour, as an adult might reprimand a child; exposure to information that is normally the preserve of adults; evaluation with their mother about their father’s authority as a parent. Overall the nature of incidents and complaints abut Mr Garner are disproportionate to the depth of negative feelings that are expressed about him.[2]
[2] Family Report by Louise Salmon dated 4 February 2010 at paragraph 46.
The family consultant made several acknowledgments in cross-examination, which together with other evidence in the matter leads the Court to put more weight on the views of the children than perhaps did the family consultant in her report. The Court finds that there is an objective basis for the boys’ views and that their complaints are not necessarily disproportionate to some of the negative feelings they express about their father.
This is a matter where historically the mother was predominately responsible for the care of the boys. The change to an equal time arrangement following the interim orders of May 2009 was quite drastic for them. [Y] was quite young and used to the mother attending to each of his daily needs including for example the preparation of his clothes for the day and assisting with his bathing. The father had little experience in matters of day to day care. He had difficulty in managing the boys’ behaviour and possibly in also managing the logistics of daily life. He acknowledged that the boys were late for dance lessons when they were with him and said this was because the boys made it hard for him to get there on time.
He agreed that the boys sat down to do their homework and that he walked away saying that they could call him if they had a problem. The evidence is that the boys are used to their mother sitting with them when they do their homework. [Y] said that he lost his puffer and that his father does not remind him to take it with him.
The mother in her affidavit says that she has had difficulty with the children not wanting to return to their father’s home after they have spent a week with her. She says that on about ten occasions since July 2009 [Y] has said that his father wants him to do everything for himself and “doesn’t help me.” She says on one occasion [Y] told her that he only changes his undies once during the week because there were no clothes in the drawer and that the dirty clothes were still in the dirty basket because their father only washed clothes at the weekend. The mother says that he told her he had asked his father for food one afternoon and that his father responded “bugger off, I have work to do now.” The father denied this. Nevertheless, the difference in parenting style must be difficult for [Y] who is only eight. It is likely that it provides a basis for the preferences he expresses. The family consultant acknowledged that the fact that the father was not practiced and experienced in looking after the children and the fact that they did not want to be spending alternate weeks with him were a reason the children might form the views which they express.
The family consultant in her October 2009 memorandum says that the boys were missing their mother and that a nightly phone call to her would help greatly. The orders of 7 May 2009 provided that the parent with whom the children were living at the time, was to facilitate telephone communication between the children and the other parent each Wednesday between 7.30pm and 8.00pm. The mother says that [X] told her after the week about arrangement started that he wanted to phone her during the week when he had things to tell her and might want to ask about this homework. He said that he wanted to phone her when he remembered things but that his father said he is only allowed to phone on Wednesday night. The mother says that [X] said he could not wait a whole week to speak to her. She says that he also told her that he had taken the cordless phone into his room so that he could phone her from there but that he thought that his father was listening on the other end. In September the mother said that [X] told her that his father had put the cordless phone away to stop him from ringing his mother all the time. The mother complained that she found it difficult to telephone the boys because the answering machine was left on.
[X] raised with the family consultant issues of privacy around phone calls to his mother. The father expressed concern at the content of the phone calls. He said in his affidavit that he had accidentally heard the mother speaking to the boys on the phone and asking the boys what he was doing and telling them to do particular things. The father told the family consultant that he did not intend to obstruct the mother’s communication with the children by telephone. At the same time he said to her that the mother had attempted to influence the children against him over the phone and that the answer machine provides a level of screening of her calls. The father said that after the family consultant made her recommendation in the October memorandum the boys did start talking to their mother on the telephone. He said that the mother had been able to phone and speak to them more than she indicated. However, his evidence was that he asked the boys to come to him if they wanted to speak to their mother. It was clear that he attempted to place some restrictions on the boys talking to their mother on the phone.
The boys told the mother about the father pinning them. She telephoned the father’s home on one occasion and discovered that the boys had been locked out of the house. In the light of what the boys were telling her it is reasonable to accept that a motive in her telephone calls was to see how the boys were managing.
The family consultant’s evidence is that the children loved their ballroom dancing. Certainly, in her memorandum of 16 October the family consultant identified the boys dancing as an issue and described it as a very important and healthy aspect of the children’s lives. While she did not make great mention of dancing as an issue in her report, she said in cross-examination that dancing was the boys’ “greatest love” and that if the father was not supportive of that it would have an effect on their relationship.
The mother in her affidavit said that [X] has been extremely interested in ballroom dancing since about April 2005 and that he had been attending lessons usually three times a week since shortly after then. She said that [Y] commenced ballroom dancing classes in February 2007 and has had classes three times a week since early 2008. The boys also participate in dance competitions which are held up to 12 times a year depending on the recommendation of the teacher and the agreement of the parents.
Participation in dancing and other activities has obviously been a significant issue between the parents. Order 7 of the orders made on 20 May 2009 provided that each of the parents would ensure that the children attend their current extra curricular activities of dancing and swimming during the weeks that the children are living with them. A dance competition was to be held on 30 August 2009 in a week the boys were with their father. The mother says that she arranged for the mother of [Y]’s dance partner, Ms K, to communicate with the father about [Y]’s attendance. The mother attached an email from the father advising that she could take [Y] to the dance competition and that he would let her know when he “would like the favour returned.” By this the father apparently meant that he wanted compensatory time with the children. The mother advised that if the father wanted her to take [Y] to the competition in the week [Y] lived with him, she would not agree to make up time and the father would need to pay for the tickets.
Ms K, filed an affidavit in the proceedings. She said that the father telephoned her to say that [Y] would not be attending the dance competition. She said that [Y] and her daughter, [Z], had been very excited about the prospect of competing because they had previously danced very well at the national competition in Canberra and were both extremely upset about missing out on the competition on 30 August 2009. She said that she then asked the father if he would allow [Y] to attend a dance championship in Sydney on 10 and 11 October. She said that she was prepared to take [Y] to the competition. In late September she said she received a message on her answering machine from the father saying that he would not allow [Y] to attend this championship. The mother of [X]’s dance partner Ms B, in her affidavit said she offered to take [X] to the dance competitions on
10 and 11 October and that the father told her that this would involve swapping the day with the mother.
Ms K says that the last dance competition of 2009 was to be held on
6 December 2009 and that she again spoke to the father and said that he would take both boys to the competition and that the father said that because it was to be held in his time, he wanted a make up day.
The father in cross-examination gave evidence that while he took the boys to their dance lessons on three occasions each week when they were with him, he did not wish to take them to the competitions because he had tinnitus and the loud noise of the music caused him problems. He seemed to suggest that the orders of 20 May 2009 applied only to competitions already booked. The father acknowledged that Ms B had offered to take the boys and that he would not agree. He said that the issue was that he wanted the day with the boys and that he did not want a precedent set that the time he had with a child decreased as a result of the child’s attendance at an activity which he could not attend. He said he could see where this could lead.
The father had no real explanation as to why he was reluctant to pay for attendance at the competitions other than to say that when the children are with the mother it was her responsibility to pay for their activities and that when they were with him it was his responsibility. He said he did not want financial entanglements. Part of the father’s response appeared to reflect the fact that he saw dancing as the mother’s activity. He said that it was also her passion and that it tied in with her interest in dressmaking. The father said that there were other activities he did with the children for which he paid.
It is difficult to see the father’s attitude to this as child focussed. At the present time dancing is obviously something that the children obtain very significant pleasure from. Unfortunately, it has become part of the focus of the parents’ dispute despite the making of an order in the interim proceedings which reasonably should have settled the matter at least until the final hearing. It is difficult to see a basis for the father insisting in the circumstances that there should be a makeup day because the boys attended their favourite pastime while they were in their week with him. This is especially the case in circumstances where even if he did not wish to take them and collect them himself, the mothers of the boys’ dance partners had offered to do this.
This does not reflect well on the father. It reflects a feeling of entitlement, if not control, on his part. It would not be at all surprising if the boys found his behaviour about this distressing and if their mother did as well. It would be difficult to expect in the circumstances that the mother would not discuss this with the boys. It was suggested to the father that his behaviour about the boys dance competitions could make the boys resentful. He responded “possibly.” It is surprising that the family consultant in her report did not consider this one as of the issues which might reasonably have impacted on the boys.
The father took a different attitude to the mother in relation to the boys’ use of asthma medication. The mother says in her affidavit that she attended [Y]’s swimming carnival on 9 Feb 2010 which was held in a week the children were with her. She says that [Y] told her that he was finding it hard to breathe. He said that he did not have his ventolin with him because he did not have it at his father’s home. He said that his father would not buy it.
The mother said in her affidavit that at the previous changeover she had advised the father via the communications book that Dr M, the consultant paediatric, respiratory physician, wanted both children to stay on their respective medications and that [Y] should switch to a new nasal spray in an attempt to keep his hay-fever under control. She said that the father would not allow [Y] to have any steroid medication and sent a script back in the communication book. The father acknowledged in cross-examination that both boys had been prescribed asthma preventive medications. He said that he did not regularly administer asthma medication although he would if he saw colds coming on. When referred to the recommendations of Dr M, to whom the boys had been referred, the father responded that Dr M had made his recommendation based on what he was told by the mother. He said that he was hoping to see Dr M when he had enough to talk about with him but that the mother had already taken the boys to see him. When questioned further, the father agreed that he had an appointment with Dr M which he cancelled because of an appointment with his solicitor. The mother said in her affidavit that [Y] had been booked to have an appointment with Dr M on 11 September 2009 with the father to take him because it was in the week he was having the children. Because the father did not make an arrangement to take the boys after the cancelled appointment she took the children to see Dr M on 21 January 2010. It is difficult to see that this was anything other than reasonable behaviour on her part.
The father was asked whether he was aware of the pulmonary function report apparently relied on by Dr M in his recommendations. The father said that he had not seen it and did not know the circumstances in which it was given. Both Dr M’s report back to the boys’ treating doctor and the pulmonary function testing report which was referred to by Dr M, were in evidence in the proceedings. Dr M reported positively on [X], recommending that he should continue on his medication for the time being, with the possibility of reducing it to zero during the year if he remained well. He reported, however, that [Y] was more of a problem in that his lung function was only around 80% of that predicted and that accordingly there was a need for preventative treatment for him for the time being at least. He referred to the possibility of weaning [Y] off some medications with the option that he could start on Singulair, the medication taken by [X], instead of his two current medications. He noted that his mother was to give this a try over the next few months.
The father in his evidence about the boys’ medication appeared to the court again to be taking a rather inflexible approach. He appeared opposed to mother’s perspective on the boys’ health notwithstanding that it was apparent that Dr M had relied on the pulmonary function test and not just input from the mother in his recommendations.
Medical issues, like ball room dancing, have become a focus for conflict between the parents. Both are issues which inevitably directly impact on the ways the boys feel about their care. The evidence set out above does not indicate any unreasonable behaviour of the mother in relation to the medical treatment of the boys. Rather it reflects a conscientious concern and involvement in their health, similar to that acknowledged by the father in relation to her involvement with the boys’ school.
The family consultant acknowledged that it was understandable that the mother would be concerned at some of the things the children were telling her, particularly as she had been the children’s primary carer. She agreed too that in the context of what the children had told the mother it was not unreasonable for the mother to have concerns about not being able to readily speak to the children on the phone. When it was put to the family consultant that a combination of the physical restraint used by the father, his lack of support for their dancing competitions and the difficulties associated with speaking to their mother on the phone were likely cumulatively to have an impact on the thinking of the children without particular input from the mother, she responded “definitely.” She also acknowledged that the fact that the father was not practised and experienced in looking after the children, together with the fact that they did not want to be spending alternate weeks with him, would be relevant factors in the children forming the views which they expressed.
The family consultant agreed that the mother had said to her that the equal time arrangement worked well for her in practical terms in relation to her lifestyle and employment and that because of this it was unfortunate that the children did not want to spend half time living with their father. She also recalled that the children of their own volition had made a comment about the arrangement suiting their mother.
When it was suggested to the family consultant that such a comment would not be expected from a mother who was undermining the children’s relationship with their father she initially paused and then responded that the situation was complex and she did not believe that the mother was undermining the children’s relationship with their father in a conscious manner. She said that one of the reasons she had expressed this opinion was because of the consistency between what the children said and what the mother said and that this indicated an understanding by the children of their mother’s beliefs. However, in the light of the acknowledgments made by the family consultant in cross-examination and the evidence about matters which gives an objective basis to the children’s views, the Court does not find that consistency between the views of the children and the mother is as significant in the context of this matter as it might be in different circumstances. On the evidence at hearing, the Court would have difficult characterising this as an “alignment” matter as discussed for instance by Federal Magistrate Altobelli in Calvert & Calvert [2008] FMCAfam101.
The family consultant was asked whether it was of concern that the father did not seem to appreciate that [X] found it hard to spend alternate weeks with him. She responded that she recognised that [X] did not want to see his father and that the father had limited appreciation of the fact that [X] did not want to spend the time with him and that there was as an element in the father’s approach of putting his wants ahead of the children’s needs. He did not believe that the boys had expressed their true wishes. In saying this, given the matters set out above, the father displays some lack of insight into the circumstances of the boys and the significance of the fact that the mother has been their primary carer, and in fact, predominant carer.
The Court accepts that the father now wants a role in the lives of the boys and that this can be of benefit to them. However, the circumstance of the boys moving from a situation where the major carer in their lives was their mother with whom they had a very close relationship quite suddenly to a situation where half their care was being provided by their father is likely to have consequences which in any circumstances would present challenges. In this matter it has been compounded by some of the relatively inflexible attitudes of the father.
The weight to be given to children’s wishes was considered by the Full Court in the matter of Harrison & Woollard (1995) 18 Fam LR 788. In that matter Fogarty and Kay JJ said “the wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.” The Court also said “the court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their base, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The decision in Harrison & Woollard was referred to by the Full Court in R & R Children’s Wishes (2000) 25 Fam LR 712 where the Court said what is required is that “children’s wishes be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance.”
The Court for the reasons outlined above finds that this is a matter were the Court would give weight to the views of the children, and in particular to those of [Y] who is aged 12.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child
The boys’ relationship with their parents has been discussed at length. It is evident that the boys are each involved to some extent with the extended families of each of their parents. The father’s parents are no longer alive. The evidence is that the boys maintained a good relationship with the paternal grandfather until shortly before his death in 2009. The father refers to other family members with whom he is happy to leave the boys. The maternal grandparents do not live in the metropolitan area. However, the boys see them during holidays. There are no other relationships which it is important to consider in this matter.
Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
It is the husband’s assertion that the wife is undermining his relationship with the boys. The evidence, however, is that there are a number of objective factors explaining the reluctance of the boys to spend as much time with the father as they presently do and that the wife has had reasonable cause to be concerned about the husband’s capacity to attend to the needs of the boys and to be able to discipline them appropriately.
It is likely that during the period of separation under one roof, the wife did involve the boys in extra activities outside the home on Sundays, the day the father was available to spend time with them and that she was less than co-operative when the father wanted to take both boys to his father’s property. Her evidence is that she did not object to [Y] accompanying his father but objected to [X] going on the basis that he had impending school exams. The Court did not find this convincing given that she herself had taken the children away during school time in early 2009. For his part, the father has restricted the children’s ability to telephone their mother despite the family consultant’s reports that they missed her and would benefit from nightly telephone communication.
There is a high level of conflict between the parents and each of them is ready to assert that the other is more motivated by self interest, particularly in relation to financial matters, than the welfare of the children. The mother when asked if the father’s motivation could be a desire to spend more time with his children and to improve his relationship with them said “I don’t know.” She was able to make some acknowledgment however in that she said that she believes that the father loved the boys and believed “in her heart” that the boys loved him. When asked about [Y] telling the family consultant that he “hated” his father, she said she could not believe this was the case.
The perceptions of each of the parents needs to be addressed in counselling as recommended by the family consultant so that they can each be supportive of the children’s relationship with the other parent.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)
The week about arrangement commenced at the end of May 2009. Before that the children were primarily in the care of their mother. The father’s work meant that his involvement with the children was limited. The sudden move to a shared care arrangement involved a significant separation of the children from their mother. The family consultant when she saw the children in October 2009 was of the view that the children were missing their mother. The children have not wanted the equal time arrangement to continue.
The family consultant in her report recommended that the present equal time arrangements continue or that the children spend slightly more time with their mother.
This recommendation was based on the view which she expressed in her report that “there is a risk that [X] will perceive any maintenance of the status quo of equal time between his parents as evidence that his voice has not been heard in the court proceedings which could increase his level of stress and subsequent anxiety. To change the arrangements significantly towards the children living with their mother will destabilise Mr Garner’s parenting role in line with the alignment as outlined.” She suggested that the court could consider the children living with their mother and father on an eight day and six day division of time across a fortnight period.[3]
[3] Family Report by Ms Louise Salmon dated 4 February 2010 at paragraph 54.
The family consultant acknowledged in cross-examination that if [X] was forced to continue in the week about arrangement or a similar arrangement there was a risk that he would be completely alienated from his father. The evidence at hearing also causes the court to be concerned about this risk.
The family consultant, as discussed, made various other significant acknowledgments in the course of the hearing. The Court has found that there are objective factors which support the views expressed by the children. The Court finds that the length of time the boys spend away from the mother as the result of the current week about arrangement has been difficult for them.
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The parents live in reasonable proximity and this is not an issue in this matter.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.
It is evident from the discussion of issues in this matter that the conflict between the parents has impacted upon the capacity of each of them to focus on the needs of the children, although a positive sign was the indication during the course of the proceedings that both parents now agree about counselling for [X].
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Each of the parents holds quite negative views of the other. They each attribute financial considerations as a primary motivation to the other in the dispute about how much time the children spend with each of them.
Each of the parents makes denials about their own behaviour which the Court finds difficult to accept. The mother denied that she had told the children that the father did not give her enough money or that she spoke to them about the father inheriting money following the death of the paternal grandfather. It is hard to totally accept such denials given the continuing dispute between the parents about payment for various expenses of the children and in circumstances where it is evident that the father’s income very greatly exceeds the quite modest income of the mother. Similarly, it is difficult to accept the father’s denials that he has threatened the boys giving his own acknowledgment of the difficulties he has had in disciplining them and his description of using physical restraint as a last resort.
The parents both display a lack of insight into potential affects of their own behaviour on the boys. The family consultant’s opinion was that the ongoing distance and acrimony in the parents’ relationship places the children at risk of psycho-social difficulties such as anxiety and depression. This does not reflect well on the attitude to the responsibility of parenthood of either of the parents.
Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family and Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if the order is a final order; or the making of the order was contested by a person;
There are no family violence orders in this matter. There are no allegations of violence by the parents against each other. The court has previously discussed behaviour of the father which [X], at least, described as violent.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The mother seeks orders in relation to various activities in which the children are involved or potentially might be involved in the future. It was submitted on behalf of the father that to make orders about these things could involve further litigation between the parties. At the same time, it is evident that conflict about certain activities between the parents has impacted on the children. Not making orders in relation to some of the more significant matters would be likely to be a reason for further litigation between the parents.
Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.
The relevant matters have been discussed above.
Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.
The issues relevant to this factor have been discussed previously.
Parental responsibility
Section 61DA(1) states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.
The Family Court in Chappell & Chappell (2008) 39 Fam LR 627 considered the presumption and commented that it would be an appropriate exercise of the Court’s discretion in some cases to find that the application of the presumption would not be in the children’s best interests because the track record of the parents would suggest a higher probability of deadlock, which could inevitably lead to further proceedings. The recent history of this matter provides the basis for concern about this.
At the same time, this is a matter where each of the parents supports an order for equal shared parental responsibility. The school [X] should attend when he commenced high school was an issue for some time. It has now been addressed. The parents have now agreed to counselling for [X]. The orders that the Court proposes to make will mean that each of the parents spends significant and substantial time with the children. In these circumstances, the Court considers that the presumption of equal shared parental responsibility should apply in this matter.
Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(1):
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(5) sets out the following:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The family consultant non-controversially indicated the factors which were supportive of successful equal time arrangements. She said that: “Equal time arrangements between parents tend to rely for their success on good communication, positive regard and a civil and flexible relationship between parents. These characteristics are currently absent in the pattern of behaviour between [Mrs Garner] and [Mr Garner].” [4] The evidence discussed in this matter indicates that the factors which would support a successful equal time arrangement are indeed very largely absent in this matter. Nevertheless, the family consultant recommended that the children continue to live with each parent according to the current regime or spend slightly more time with their mother. Her view was that to change the arrangements significantly towards the children living with their mother would destabilise
Mr Garner’s parental role “in line with the alignment as indicated”.[5][4] Family Report by Ms Louise Salmon dated 4 February 2010 at paragraph 53.
[5] Family Report by Ms Louise Salmon dated 4 February 2010 at paragraph 54.
However, the Court has found that weight needs to be given to the views of the boys and particularly those of [X], who is twelve. Important, of course, are the boys’ relationships with their parents. The Court has found that the boys, and in particular [X], have a problematic relationship with their father. Relevant too is the conflict between the parents about basic matters to do with the boys’ lives. There is disagreement over medication for the boys which must be unsettling for them as they move from house to house. There is conflict about phone calls from the mother and about attendance at dance competitions. The parents do not agree about whether the boys should participate in nippers on Sundays. The parents have different approaches to the way the boys do their homework. The parents do not discipline the boys in similar ways. The father said that arrangements between he and the mother for payment of the activities in which the boys are involved was a major issue. The communication book which was in evidence in the proceedings indicates issues about receiving school notes in the weeks the children are in the respective care of one parent or another, collecting these notes and paying for the activities, and even in relation to responsibility for the washing of clothes.
The parents had a significant dispute when in December 2009 [Y] took a sleeping bag from his father’s house apparently because he was attending a year 6 farewell sleep over party at his school. The father acknowledged the dispute and said in his affidavit that as the children were leaving he picked up [X]’s backpack and observed that it was heavier than when he had packed it an hour before. He said that he opened it and found one of the sleeping bags “from my house” in it. [X] grabbed the bag. The father told him to stop because he wanted to see what was in the bag. This then became a dispute apparently with [X], the mother and the father grabbing the bag. It is apparent that an issue between the parents has been the ownership of various items. This incident itself is illustrative of the extreme difficulty the parents have in communicating about everyday things to do with the boys. It is yet a further example of the difficulties for the children of an equal time arrangement in the circumstances of this matter.
The family consultant recommended counselling for [X] and for each of the parents as well as specific programs for the father. It is important that each of the parents re-visit their present perspectives. However, it is difficult for the Court to make final orders for equal time on the expectation that the counselling and programmes outlined by the family consultant will be utilised by each of the parents and will be successful in having a desired impact on their behaviours.
For all the reasons set out above the court does not consider that equal time is in the best interests of the boys. The Court would not find either that it is reasonably practicable in terms of ss.65DAA 5)(b) and (c) and (d).
Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Court is mindful of the opinion of the family consultant that the boys need to spend sufficient time with their father to be able to consolidate their relationship with him. The evidence in this matter is that the boys have a stronger relationship with their mother than with their father. They wish to spend more time with her than with their father. These are important considerations in circumstances where the Court has found that there are objective factors supporting the preference of the boys. It is important to achieve an appropriate balance between these considerations and supporting the boys relationship with their father. The mother’s proposal is that the children spend time with their father each alternate weekend from after school on Wednesday until 7.00pm on Sunday. This reflects significant and substantial time as defined in section 65DAA(3).
Balancing all the considerations outlined in this matter, the Court is of the view that it is in the boys’ best interests for them to be able to spend substantial and significant time with each of their parents.
The Court also needs to consider whether this is reasonably practicable taking into account the matters set out in section 65DAA(5). Distance between the parents is not an issue in this matter. A further matter for consideration is the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement for significant and substantial time. The Court has some reservations about the parents’ ability to implement an arrangement for the children spending significant and substantial time with each of them and about their current capacity to communicate with each other and resolve difficulties that might arise. However, the difficulties that might arise in an arrangement involving substantial and significant time are less likely to have a less adverse impact on the children then would be the case in an equal time arrangement. The Court considers that the arrangement for significant and substantial time would be reasonably practicable. The Court accordingly proposes to make orders that the boys live with their mother and spend time with their father each fortnight from after school Wednesday in the first week until before school the following Monday.
The boys’ activities
The boys’ activities have been a source of conflict between the parents. The mother proposed that the Court make an order that when the children are spending time with a particular parent, that parent take the children to, and share the costs of, the following activities; dance classes, dance competitions, swimming lessons, nippers and any other agreed activities.
The father says that specific orders about the children’s activities would invite further litigation between the parties. Because of the conflict that has arisen about they boys’ activities and particularly their participation in dance competitions, some certainty needs to be established. However, at the same time, it is important to recognise that the father also wants to be able to encourage the boys to participate in activities which he considers may be beneficial to them. The Court proposes to make orders only in relation to the boys’ dancing because of the evidence before the court about the importance of this activity to them and the difficulties that have arisen because of the father’s reluctance to agree to them participating in dance competitions during his time with the boys.
Inevitably, the children’s interests will change over time. Their parents must be able to cooperate about the activities in which the boys will be involved and which either one of them may enjoy in the future. It is unrealistic for the Court to make more specific orders about this. It is very much a responsibility for their parents especially as they have both sought an order for equal shared parental responsibility.
The Court will make an order that each of the parents participate in a parenting after separation program. The parents themselves should consider the benefit of the other programs recommended by the family consultant.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Walker FM
Associate:
Date: 22 April 2010
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