Garner and Muller

[2017] FamCA 909

FAMILY COURT OF AUSTRALIA

GARNER & MULLER [2017] FamCA 909

FAMILY LAW – CHILDREN – Spend time with – Where the father seeks an immediate extension of time with the child to include one overnight period per week – Where the mother is not opposed to the extension but proposes that it should be introduced when the child is older – Consideration to the views of the family consultant and the age of the child – Where it is ordered that the father shall have overnight time with the child each fortnight from 25 December 2017

Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC

APPLICANT: Mr Garner

RESPONDENT: Ms Muller

FILE NUMBER: ADC 4776 of 2015

DATE DELIVERED: 10 November 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 5 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: SE Lawyers

Orders

1. That until further order B born … 2015 (“the child”) spend time with the father unless otherwise agreed by the parties in writing as follows:-

   (a)       Each Wednesday from 8.45 am until 12.45 pm;

   (b)Until 25 December 2017, each Saturday from 8.45 am until 5 pm alternating weekly to Sunday;

   (c)       From 4.30 pm on 25 December 2017 until 5 pm on 26 December 2017;

   (d)From 8.45 am until 5 pm on Saturday 30 December 2017 and each alternate week thereafter;

   (e)From 5 pm on Friday 5 January 2018 until 5 pm on Saturday 6 January 2018 and each alternate weekend thereafter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garner & Muller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4776  of 2015

Mr Garner

Applicant

And

Ms Muller
Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant in the proceedings is Mr Garner (“the father”).  The respondent in the proceedings is Ms Muller (“the mother”).  The parties are the parents of B born in 2015 (“the child”).

2. The proceedings commenced in 2015.  The parties have been in dispute in respect of the parenting arrangements for the child and also as to division of property.

3. Following extensive submissions, orders were made on 5 August 2016 which provided for the parties to have equal shared parental responsibility for the child, that the child live with the mother and subject to certain conditions to spend time with the father from 9 am until12 pm on Wednesday and Saturday of each week with supervision.

4. It is not controversial that the parties have endured a high level of conflict in the proceedings and retain significant mistrust for each other.

5. On 14 October 2016 orders by consent were made that provided for the child to spend time with the father each Wednesday and Saturday from 8.45 am until 12.45 pm conditional upon “the time being substantially being in the presence of either or both paternal grandparents”.

6. The orders reflect that the parties were to engage in a family assessment report and the proceedings were adjourned for further hearing to 17 February 2017.

7. Following the consideration of the report dated 8 February 2017, I ordered the proceedings be adjourned to 5 October 2017 and during the period of the adjournment the child would spend time with the father each Wednesday from 8.45 am until 12.45 pm and each Saturday from 8.45 am until 5 pm alternating weekly to Sunday commencing Sunday 19 February 2017.

8. In anticipation of the adjourned date, the father filed an Application in a Case on 14 September 2017 which seeks an extension of time to 10 am to provide for an overnight period each week.

9. The father also seeks to resolve parenting arrangements for Christmas Eve and Christmas Day and foreshadows a dispute between the parties as to the enrolment of the child in an early learning centre unless by consent.

10. The mother’s Response filed 28 September 2017 opposes the orders sought by the father but proposes that overnight time be introduced on one occasion in each calendar month commencing February 2018.

11. The mother also seeks an order by way of partial settlement of property to assist her in obtaining accommodation.

12. On 5 October 2017 I reserved judgment in respect of the interim argument but noting that the parties were attempting to mediate a resolution, I adjourned further consideration to 10 November 2017.  The Court was able to give the parties an indication that providing the proceedings could be dealt with efficiently and that the issues for trial were limited, an expedited hearing was available in February or March 2018.

13. It is anticipated that on the adjourned date trial direction orders will be made.

14. The matter for determination is therefore of limited scope and is to consider whether overnight time should be introduced prior to the anticipated trial date.

THE FATHER’S APPLICATION

1. The father considers that there would be significant benefit enjoyed by the child if the father’s time with her was extended to include one overnight component each week.  Essentially, he submits that it would be in the child’s best interests to have his relationship with the child fostered and that this is likely to occur by a regular overnight period.

2. The father asserts that notwithstanding his best effort he has not been able to obtain any consensus with the mother other than concerning day to day issues.  It is unlikely that the parties will be able to negotiate parenting arrangements for the child that are outside the terms and conditions of any order.

3. It is his position that he has complied with orders of the Court and notwithstanding earlier misgivings by the mother and her opposition to him having any unsupervised time with the child, he considers that there has been little or no difficulty with the child transitioning between them.

4. He also relies upon the recommendations of the family consultant to the effect that overnight time was recommended to commence in November 2017.

5. It would seem reasonable to assume that the father’s current application is significantly influenced by the recommendations of the family consultant.

6. The father also refers to a therapeutic report prepared by a clinical psychologist that he has been consulting on a regular basis in 2016 and 2017.  The tenor of the report is directed to a favourable view of the father’s insight, stable emotional regulation and the ability and preparedness to be attuned to the child’s needs.

THE MOTHER’S RESPONSE

1. The mother is prepared to acknowledge that there should be an extension of time but that it should not commence until February 2018.

2. She argues that the Court should take a more cautious approach given the poor communication and lack of co-parenting relationship between the parties, that the child is approaching her “toileting milestone”, that the child has not slept away from the mother and to the extent that the father’s application has some support from the family report, there are aspects of the assessment that the mother does not agree with.

3. The mother believes that the father is video recording some aspects of the handover.  She refers to “an unpleasant incident” at the handover restaurant on 21 June 2017.  Such was the perceived aggression that the mother’s observations were the subject of extensive notation in the communication book and a response by the father denying any allegation that he may have handled the child roughly.

4. It seems that the parties are not able to understand that the communication book is not a vehicle for the parties to communicate with each other about their differences but rather it is to convey information that assists in the parenting of the child.

5. Irrespective of the context in which each of the extracts in the communication book were recorded, it would appear uncontroversial that the communication between the parties is at a low ebb.

FAMILY REPORT

1. The family report was prepared on 8 February 2017 by Ms C (“the family consultant”). The mother expressed concern to the family consultant that the father did not appear to accept responsibility for his behaviour and that given her mistrust she was concerned that he was not able to control his anger or his emotions.

2. The mother considered that an improvement in communication and a preparedness on the part of the father to appear more cooperative would assist her in having more confidence in his parenting capacity.

3. The mother considered that when the child was three years of age extended time and the need for supervision could be dispensed with.  Obviously orders that have been made have progressed the matter beyond that aspect of the mother’s contemplation at the time.

4. When interviewed, the father advised that he focussed entirely on the child when she was with him.  He acknowledged that there would need to be a gradual process to move forward but that he had the benefit of his parents’ support.

5. At the time of interview the father had commenced counselling.  Three appointments had taken place and he continues to gain assistance from ongoing therapeutic counselling.

6. The observations of the child are summarised by the family consultant in the following manner:-

   [The child] presented as a delightful and lovely toddler, who responded age appropriately at all times.  She interacted comfortably and happily with her parents and grandmother and gave the impression of being a calm, happy and well-adjusted young child.  Both parents were warm, loving and affectionate with her, and she was comfortable and happy with each of them.  The general impression was that she has a warm and secure attachment with her mother, and an equally comfortable and secure relationship with her father.

7. The family consultant considered that it was appropriate to commence overnight time which could have commenced in July 2017 and that a further overnight could be introduced in November 2017.

8. The father places significant reliance on the recommendations of the family consultant.

PRINCIPLES RELEVANT TO PARENTING ORDERS

1. Section 60CA of the Family Law Act1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1). I am also cognisant of the primary considerations and additional considerations as set out in s 60CC(2) and (3) in order to determine what is in the child’s best interests.

2. On an interim basis neither party seeks to rebut the presumption of equal shared parental responsibility.  The parties however agree that given the age of the child and the circumstances that exist between them in terms of their entrenched mistrust of each other, it would not be in the child’s best interests for there to be equal time or indeed, even significant and substantial time.

3. The focus is therefore limited to the introduction of overnight time and when that should occur.  The duration of any interim order would be limited by the anticipated trial date being set for either February or March 2018.

PARENTING CONSIDERATIONS

1. It is recognised by each of the parties that it is important for the child to have a meaningful relationship with each of them.  Whilst the father may consider the mother’s representations as to the importance of the father having a meaningful relationship with the child as disingenuous, I am prepared to accept the mother’s acknowledgement of the benefits of such a relationship as a true reflection of her position.

2. The mother considers that the father may not be able to provide an appropriate and safe environment for the child in circumstances where she considers that he may still have anger management issues.

3. She also argues that the age of the child is a relevant consideration and in particular there are toilet training issues which are likely to be assisted by the maintenance of a regular routine and a stable arrangement between the parties.

4. Whilst I do not consider that the father presents as a risk to the child, the matter is to be determined not by reference to the sensitivities of the parties but rather to the needs and the best interests of the child.  She has little or no understanding of the conflict between the parties.

5. I accept that the observations of the father, assisted to some extent by those of the family consultant that the child relates and reacts well to each of the parties.

6. There is no magic to a child spending overnight time with a parent.  There is little doubt that it provides an opportunity for a party to participate in a range of activities which would not ordinarily present themselves when a child spends time during the day with a parent.  That must be tempered by the child’s ability to adjust to overnight time.

7. The parties are however moving forward in the sense that the mother’s position is now to concede that it is appropriate for overnight time to commence prior to the child’s third birthday.

8. I cannot ignore the conduct of the parties and how that has the potential to impact adversely on the child.   The father may consider that his time with the child should not be compromised because of the mother’s mistrust, but I am not able to ignore that she is the child’s primary carer and the child’s transition between the parties would be significantly enhanced if each of the parties gained confidence in the other’s ability to appropriately parent and be attuned to the child’s needs.

9. I am also mindful of the issues that are likely to be raised in the course of the proceedings and accordingly any orders that I now make I consider to be within the general ambit of my discretion taking into account the recommendations of the family consultant and by implication, the benefit that she considers will inure to the child by increased time including an overnight component with the father.

10. The parties are agreed that the father’s time should continue on each Wednesday from 8.45 am to 12.45 pm.

11. There is also agreement that the child should spend time with the father on either each Saturday or Sunday.

12. I consider that at this stage one overnight each week would be a bridge too far.  I propose to order that the child spend time with the father overnight on one occasion a fortnight.

13. The parties also appear in dispute as to the arrangements in respect of Christmas Eve and Christmas Day.  The father seeks to spend time with the child from Christmas Eve to Christmas Day, whereas the mother proposes that the child spend three hours with the father on Christmas Day from 4.30 pm until 7.30 pm.

14. I propose to introduce the first overnight time starting on Christmas Day, then from 8.45 am to 5 pm on Saturday 30 December 2017, for an overnight period commencing Friday 5 January 2018 and each alternate week thereafter.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 November 2017.

Associate: 

Date:  2 November 2017