Gavino & Elvira (No. 2)

[2021] FamCA 94

FAMILY COURT OF AUSTRALIA

Gavino & Elvira (No. 2) [2021] FamCA 94

File number(s):	DNC119 of 2020
Judgment of:	BERMAN J
Date of judgment:	5 March 2021
Catchwords:	FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Interim orders – Where the parties live in different states – Where the children live with the mother – Where the father seeks to spend extended time with the children in the school holidays – Where the mother proposes that time spending be daytime only – Where the mother is concerned about the father’s behaviour and mental health and the impact of such factors on the children – Where the father has sought assistance for his mental health and has participated in parenting courses – Where the father has been able to maintain his employment as a doctor – Consideration of family report – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 60CC(2), 60CC(2A), 60CC(3)
Cases cited:	Marvel v Marvel (2010) 43 Fam LR 348
Number of paragraphs:	56
Date of hearing:	18 February 2021
Place:	Adelaide
Counsel for the Applicant:		Ms Noble
Solicitor for the Applicant:		Withnalls Lawyers
Counsel for the Respondent:		Ms Palavra
Solicitor for the Respondent:		Northern Territory Legal Aid Commission

ORDERS

DNC119 of 2020

BETWEEN:

MS GAVINO

Applicant

AND:

MR ELVIRA

Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS:

1.That X born … 2012 and Y born … 2014 (collectively “the children”) spend time with the father as follows:-

(a)From 9.00 am to 4.30 pm on 12 and 13 April 2021;

(b)From 9.00 am on 14 April 2021 to 4.00 pm on 18 April 2021;

(c)From 9.00 am on 3 July 2021 to 4.00 pm on 10 July 2021.

2.That all changeovers shall take place at J Services and the parties shall forthwith contact J Services to complete all relevant intake requirements and all documents necessary for this purpose.

3.That in the event J Services is unable to facilitate changeover in accordance with these orders THEN changeover shall take place in L Shopping Centre, Northern Territory.

4.That each party be restrained and an injunction is granted restraining each of them from:-

(a)Denigrating the other party or the party’s partner or members of that party’s family via any social media platform or in the presence of or within the hearing of a child or children;

(b)Discussing the Court proceedings with a child or children;

(c)Taking photographs or video or voice recordings of the other party;

(d)Posting to any social media account negative or derogatory comments including photos or information in relation to the children, the parties or these proceedings;

(e)Wearing any clothing which contains any negative or derogatory comment including photos or information in relation to the children, the parties or these proceedings; and

(f)Attending at each other’s residence or remaining in the vicinity of the residence of the other except with that party’s express consent.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

1. Ms Gavino (“the mother”) and Mr Elvira (“the father”) remain unable to resolve their differences in respect of the future parenting arrangements for X born in 2012 and Y born in 2014 (collectively “the children”).

2. The children remain in the primary care of the mother who resides in Northern Territory.

3. The father resides in Victoria and spends time with the children in Northern Territory.

4. By order made 20 January 2021 all applications for final orders remain listed for hearing on 12 July 2021 in the Northern Territory Registry of the Family Court of Australia.

5. At this stage the father concedes that the distance between the parties is such that it is only viable for him to spend time with the children during school holidays.

6. Orders made on 18 December 2020 provided for the children to spend time with the father as follows:-

   (1)…

   (a)from after school on Friday 18 December 2020 (or 3.30pm whichever is the later time) until 12.00 noon on Sunday 20 December 2020;

   (b)from 10.00am on 3 January 2021 to 10.00am on 18 January 2021 PROVIDING that the father’s time with the children is taken in Northern Territory or its environs AND PROVIDED that the father’s time with the children shall be taken in the absence of the mother.

7. The father seeks to spend extended time with the children during the Term 1 Northern Territory school holidays which commence on Monday 12 April 2021 and the Term 2 Northern Territory school holidays commencing 28 June 2021.

8. The mother opposes the block periods of time sought by the father and proposes that during the Term 1 school holidays the father spend time with the children from Monday 12 April to Friday 16 April 2021 each day from 9.00 am to 4.30 pm and during the Term 2 school holidays from Monday 28 June 2021 to Friday 9 July 2021 each day from 9.00 am to 4.30 pm.

9. The significant interim issue that separates the parties is the mother’s opposition to the children spending overnight time with their father.

   FATHER’S APPLICATION

10. The father relies upon his affidavits filed 17 December 2020 and 12 February 2021 which set out the time spent with the children in Northern Territory in November and December 2020 and January 2021.  The father also provides details with respect to his mental health. 

11. By reference to paragraphs 34 to 38 of his affidavit of 17 December 2020, the father seeks to establish that the children very much enjoyed their time with him in December 2020 and that there was a close emotional attachment between them.

12. Of relevance to the mother’s current opposition to overnight time is the father’s frank disclosure that the litigation and his separation from the children has had a detrimental effect on his mental health.  He considers that the dispute between the parties has caused him to experience feelings of hopelessness and such was his despair that he threatened to kill himself. On or about 31 January 2019 the police attended at the father’s home and following brief interaction the father was sectioned under the Mental Health Act and taken to M Hospital for a mental health assessment.  He was subsequently released.

13. That incident preceded the father travelling to Northern Territory and looking after the children whilst the mother was away.

14. In order to establish his mental health stability the father attended a general practitioner in Northern Territory to undertake a mental health assessment.  That report, albeit brief, considers that the father has sustained situational anxiety arising from the litigation.

15. On 23 January 2021 the father obtained a Mental Health Plan and consulted with a psychologist on 30 January 2021 with a follow up session on 13 February 2021.  In addition, the father has seen a psychologist from the Employee Assistance Program on 3 and 11 February 2021.

16. The father acknowledges that the children have observed his distress and anger for which he deeply regrets.

17. He has now enrolled in a range of parenting programs run by H Services.

18. Whilst accepting that he suffered from anxiety and depression, the father does not accept that he has been diagnosed with nor that he suffers from any major psychiatric illness or disorder.

19. Paragraph 17 of his affidavit filed 12 February 2021 sets out the activities undertaken with the children during his time with them in January 2021.  He contends that the period spent with the children in January 2021 was much more relaxed than the period in November/December 2020.  His assessment of the children was that they were comfortable in his care, excited to see him and hold an expectation of spending extended time with him during the upcoming school holidays.

20. It is a relevant consideration that the father is a health professional. He works at a hospital.  There has been no disruption or interruption to his ability to undertake his employment.

    MOTHER’S RESPONSE

21. The mother recognises that the children should maintain a relationship with their father.  She does not seek to stop the children spending time with the father but rather, to limit the father’s time to daytime only.

22. Contrary to the observations of the father, the mother considers that the children were stressed and anxious upon their return to her following the father’s time in November/December 2020 and January 2021.

23. The mother concedes that overnight time should occur in the future but remains concerned that the father’s emotional outbursts adversely affect the children.

24. At paragraph 33 of her affidavit filed 15 February 2021 the mother repeats the children’s responses following their time with the father.  The broad thrust of the mother’s interpretation of the children’s comments is that the father appears angry and in particular does not easily facilitate the children speaking to the mother when they are with him.

25. The mother contends that such is the children’s distress that X, whilst ordinarily a happy child, is emotionally flat and dysregulated for some time after contact with the father.  Both children started to wet the bed and X soiled herself on one or two occasions.  The mother links the children’s incontinence and soiling to anxiety arising out of the children spending time with the father.

26. The mother remains concerned that the father may suffer from mental health issues in terms of anger and negativity.  She has reflected upon his presentation during the period of the relationship and considers that he has become increasingly paranoid.

27. The mother does not accept that the general practitioner who authored the report as to the father’s mental health status is truly independent.  Her inquiries have not revealed that the general practitioner is qualified and in any event he may well be a friend or an associate of the father.

28. The mother also seeks to spend block time with the children during the school holidays.

    FAMILY REPORT

29. Following an order made on 26 August 2020, family consultant Ms K prepared a family report dated 15 January 2021.  The family consultant identified the risk factors as follows:-

    1.Family Violence and Abuse

    2.Child Safety and Wellbeing

    3.Mental Health Issues affecting the father.

30. The issues in dispute are confined to parental responsibility and the time and place for the children to spend time with the father. 

31. The father does not oppose the children remaining in the primary residence of the mother, but subject to any transfer consequent upon her employment, the mother is opposed to the children spending any time with the father in Victoria.

32. The father’s presentation to the family consultant was described as being anguished and emotionally distressed.

33. It appears that the father was frank with the family consultant that given the significant effort undertaken by him to migrate to Australia, learn to speak English and then qualify work as a health professional, the subsequent breakdown of the relationship had a devastating effect on him.

34. The father denied that he perpetrated family violence in any form including coercive conduct and rather considered that the mother was a person of strong character and determined to achieve her desired outcome.  He did acknowledge one occasion post separation where he used aggressive language.

35. When meeting the children in November 2020 the father wore a tee-shirt with the pictures of the children printed on it and expressed a message that conveyed the father considered the mother had engaged in parental alienation.

36. The father’s insensitive conduct caused the children to consider that the remarks were intended to be derogatory of the mother.

37. At the time of the assessment the children were six and eight years of age.

38. The children were aware of the constant arguments between the parties prior to separation and whilst wanting to spend time with the father, felt sad when he was angry and engaged in derogatory behaviour towards the mother.  It would appear that but for the father’s earlier presentation of being openly critical of the mother, the children were keen to spend time with him provided they remained primarily in the care of the mother.

39. The observed interactions between the children and the parties were in stark distinction.   The children engaged warmly with the mother, whereas with the father they appeared to be ambivalent and at times uncomfortable over the 70 minutes of observed interaction.

40. The family consultant highlighted the relevant risk factors and recommended that the children’s time with the father take place in Northern Territory on a regular but limited basis.

    PARENTING CONSIDERATIONS

41. I am obliged to consider the competing applications of the parties and to decide what is in the best interests of the children as the paramount consideration. In doing so I must consider the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”) as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3). If there are factors which identify a risk to the children consideration should be given to s 60CC(2A) of the Act.

42. I am reminded of the need to adopt a cautious or conservative approach in respect of interim parenting considerations as considered by the Full Court in Marvel v Marvel (2010) 43 Fam LR 348 at [120].

43. The tension is to balance the benefit to the children of having and maintaining a meaningful relationship with their father, in particular, in circumstances where the tyranny of distance places an onerous obligation on the father.

44. The mother concedes that the children should maintain a relationship with the father but that at present it should not be on an overnight basis.

45. It seems that the mother needs to be satisfied that there are no mental health issues that affect the father’s ability to properly care for the children.

46. For his part, the father has been frank in elucidating his history of anxiety and depression, but contends that it is situational rather than a deep-seated mental illness.

47. The father continues to maintain employment as a health professional working in a hospital in Victoria.

48. The father has also undertaken of his own motion a number of parenting courses and contends that whilst he remains upset and distressed at the breakdown of the relationship and the need for litigation to be able to resume a relationship with the children, he now has gained greater insight following his ongoing psychological counselling.

49. The mother does not seek that the father’s time during the day be the subject of supervision.  She remains opposed to the children spending overnight time with the father.  A careful consideration of the mother’s affidavit material does not highlight or disclose the basis of the mother’s concern.  It is difficult to see how a child might be at risk overnight, but not at risk during extended daylight hours.

50. The parties appear to accept that each of them has much to offer the children.

51. I propose to find a balance that reflects the advantage to the children of spending time with their father in circumstances where they do not see him with any regularity during school term, but to limit the father’s time so that the children will spend some holiday time with each parent, with the first two days of the upcoming April school holiday period to be restricted to daytime only to enable the children to reunite with their father after a significant absence.

52. Other orders the mother seek are that handover occur at J Services.  I am told that J Services are able to facilitate the handover during the times contemplated by the parties.

53. As discussed with counsel, I do not consider that I have the ability to require the father to present for a psychiatric assessment unless it is linked as a condition of a parenting order.  I do not consider that the issues in respect of the father’s mental health should be elevated to that level.

54. The father is however on notice that the mother intends to explore at trial his mental health.  It is a matter for each of the parties, but the father in particular, to present evidence that would satisfy the Court there are no mental health issues likely to impact upon the orders that the Court will be asked to make.

55. Given the entirely dysfunctional relationship between the parties and their almost entire inability to communicate with each other on a civil basis, there is good reason to put in place a raft of orders that have the effect of restraining any adverse behaviour by either party towards the other.

    CONCLUSION

56. I make orders that appear at the commencement of these reasons.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       5 March 2021