Gillett and Tobin

[2017] FCCA 1337

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLETT & TOBIN [2017] FCCA 1337

Catchwords:
FAMILY LAW – Parenting – interim – increase of time with child and father.

Legislation:

Family Law Act 1975

Applicant: MR GILLETT

Respondent: MS TOBIN

File Number: SYC 6804 of 2015

Judgment of: Judge Henderson

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Schonell

Solicitors for the Applicant: McLachlan Thorpe Partners

Solicitors for the Respondent: Shepherds The Family Law Specialists

ORDERS

1. The proceedings be adjourned to 5 March 2018 at 9.30am for call over.

2. The child, X, born (omitted) 2013, live with the mother.

3. The parents have equal shared parental responsibility.

4. The child will spend time with the father as follows: 

   (a)commencing forthwith, each alternate weekend from 4.00pm Friday until 6.30pm Sunday in Week 1, commencing in accordance with the usual regime of time that the father has with the child;

   (b)In Week 2, the child to spend time with the father each alternate Thursday from 4.00pm (or such other time as the father can manage with work commitments) to the commencement of preschool Friday morning;

   (c)In the first week following the child’s fifth birthday, his time with the father is to extend to the commencement of preschool on Monday morning. 

5. The child is to spend block periods of time with the father as follows:

   (a)From 3 to 7 August 2017;

   (b)From 22 to 29 June 2018;

   (c)The father’s alternate weekend time shall recommence the second week after the block holiday time in August 2017 and June 2018 respectively. 

School Holidays commencing in 2019 and continuing

1. The child is to spend time during each of the Term 1, 2 and 3 school holidays as agreed in writing between the parties and failing agreement as follows:

   (a)The child is to spend time with the mother for the first half of the school holidays in odd numbered years, and the second half of the school holidays in even numbered years;

   (b)The child is to spend time with the father for the first half of the school holidays in even numbered years, and the second half of the school holidays in odd numbered years.

Christmas

1. The child is to spend time with the father in odd-numbered years from 2.00pm on Christmas Eve until 4.00pm on Christmas Day and each alternate year thereafter, and with the mother from 4.00pm Christmas Day until 4.00pm Boxing Day.

2. The child is to spend time with the father in even numbered years from 4.00pm Christmas Day until 6.30pm Boxing Day and each alternate year thereafter, and with the mother from 10.00am Christmas Eve until 4.00pm Christmas Day. 

3. On one occasion during the Christmas school holidays for 2017, the father’s usual weekend time is to extend to 5.00pm on Tuesday on one occasion in January 2017 as agreed, and failing agreement on the first weekend of time in January 2018. 

Easter

1. The child is to spend time with the parents during Easter as follows:

   (a)The child is to spend time with the father from 3.30pm Easter Thursday, or the conclusion of school if a school day, until 6.00pm Easter Saturday in even numbered years and alternate years thereafter;

   (b)The child is to spend time with the father from 4.00pm Easter Saturday until 6.00pm Easter Monday in odd numbered years and each alternate year thereafter. 

Special Occasion Days

1. The child is to spend time with the father on Father’s Day and with the mother on Mother’s Day from 9.00am until 6.30pm if not already in that parent’s care.  For the purposes of facilitating this order, the parent with whom the child is to spend time will collect and return the child to the other parent. 

2. On the child’s birthday, the child will spend time with the non-resident parent for at least three hours from either after school until 6.00pm if a school day, or for 3.00pm until 6.00pm if a non-school day.

3. Both parties will notify the other of any health issues concerning their son, of any injury suffered by him, or medical or emergency treatment whilst in their care. 

4. Both parents will notify the other at least 14 days before any change of their residential address or telephone numbers. 

THE COURT NOTES THAT:

A.Both parties have agreed that they are each at liberty to liaise directly with the child’s school or place of education or extra-curricular activity, and in addition, any medical practitioner or other health professional the child may see from time to time. 

B.The mother intends that the child will continue to attend preschool at the (omitted) Day Centre in 2018.  However, the Court notes the mother has been given notice on her rental property.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6804 of 2015

MR GILLETT

Applicant

And

MS TOBIN

Respondent

REASONS FOR JUDGMENT

1. This is an application by a father for increased time to his son, X, born (omitted) 2013. The current orders were made by consent on 30 June 2016 and provide for equal shared parental responsibility, X live with his mum and spend time with his dad Friday 4 pm to 6.30 pm Saturday and, commencing 17 February 2017, from 4 pm Friday to 6.30 pm Sunday and one weekday during the week from 4 pm to 6.30, and other times as agreed.

2. The father seeks his time increase to three nights a fortnight immediately, up until 10 October 2017, then four nights a fortnight until the commencement of term 1 of X’s preschool in 2018, then five nights a fortnight thereafter, block holiday time and some special events.

3. The mother resists any change until February 2018, when X is aged five, and then asserts his time should be from Friday to Sunday, and in the other week a Thursday overnight, not three nights in one block.

4. I do not propose to deal with orders for 2019, when X will commence school. I am hopeful that the matter will either have resolved or have been heard to a final hearing by that time. The father has agreed to pay for a private report and in those circumstances the final hearing date will be fast tracked, given he is not using the public purse for a family report.

5. X is a lovely little boy but he has some delayed milestones. He is undertaking speech therapy and occupational therapy, and these remedies have particularly assisted him. His mother took him to a paediatrician in March 2017 and that report is annexed to her affidavit. Unfortunately, the father was not involved in that report, and has caused him some concern in that the report may have been obtained for forensic purposes. However the report is also very informative and the paediatrician clearly assessed the little boy that she saw and not just from what the mother told her.

6. Now, this type of behaviour, that is, taking a child to paediatrician, or enrolling the child in something without telling the other parent has occurred with each parent.

7. There is a degree or brinksmanship or vying for the child’s needs by each of his parents. The mother has not always informed the father about preschool, for example, change of dates for preschool, the paediatric assessment, for example. The father has enrolled the child in therapies and swimming, for example, and other activities without telling his mother.

8. There have been issues about his hair being cut. Fortunately, these parents has always acted in X’s best interest in terms of the activities they engage him in or the actions they have taken but the competition between them is not beneficial to X, and as X ages it will become apparent to him. The competition the mother perceives with the father’s wife and X’s affection for that lady is of concern. She believes the father encourages the child to call the father’s new wife mummy.

9. There is an affidavit from this lady where she says that X has called her mummy, but she has gently told him she’s not mummy, and that he only has one mummy and daddy; that she is there to help daddy, and has given herself a nickname for the child to use.

10. The father believes the mother is merely seeking to minimise his time with his son without any justification.

11. These competitions and beliefs the parents have of each other will, if not remedied, impact on X’s ability in the future to securely attach to both his parents and move happily and freely between their homes, because he will pick these behaviours up as he grows.

12. The mother is concerned that X is, perhaps, immature for his age and the paediatrician mentioned ADHD or ADH whatever. He exhibits poor concentration, poor comprehension, is unable to focus on a task, and requires constant direction. However, all children develop differently. All children mature at a different rate as well. X is receiving the very best of the positive therapies from his capable and competent parents at his young age, which will only maximise his potential. His parents are aware of his needs and they are onto it. He is involved in as many things as a young boy with his needs would need to be involved in.

13. The mother says that X spending two nights a fortnight with his dad only commenced in February 2017 and this is really at the limit of X’s capacity to manage time away from her. There is absolutely no issue as to his father’s competency or capability as a parent. The mother says three nights regularly, on a regular basis away from her, would be too much, particularly three nights in a row, because X has been coming home unsettled at times, saying that daddy says to call Ms J, the father’s wife Ms J, and mummy. This is denied. There are many comments about what the father has alleged to have said about the mother to the child. It is clear the child, is picking up on the difficulties the parents have.

14. From the mother’s position, the father overbears on her, and she said this was a feature of their relationship. He constantly barrages her with requests for additional time, change of dates, says he will call the police if some other man is sleeping in the room with the mother and the child, and threatens her with money. That overbearing coercive nature, his demands, his needs, take the priority in the mother’s eyes and he does not have the respect for her that she says he should.

15. The father says the mother is a gatekeeper with his son, with no justification. His son should be spending much more time with him than she allows, and that he has had to fight for every hour of time he spends with his child. The mother is not cooperative, she doesn’t listen to him and she disregards his opinion in X’s life. In reality, there is no doubt to me that there is truth in both parent’s allegations against the other. However, this litigation is about their son, X, and his best interests, and not his parents’.

16. I do accept there is a need to move somewhat cautiously, given X’s age, and what I would call his needs at this time, which are being addressed. I would be concerned to move X to a block of three nights forthwith from Friday after day care to the commencement of day care Monday morning although it has neatness about it. It would mean in reality that X would not be with his mother from the commencement of day care Friday morning until the cessation of day care Monday afternoon, and that may be, at X’s age, and with his particular needs and perhaps immaturity too much for him to deal with at this stage. This may indeed backfire on the father’s quite proper approach to maximise his time with his son.

17. Going to the Act[1], the parents are to have equal shared parental responsibility. This is not a matter where an equal time order is sought. It would not be practical nor in child’s best interests, but working towards significant and substantial time is clearly appropriate.

    [1] Family Law Act 1975.

18. X clearly benefits from a meaningful relationship with each of his parents and other adults in his life. He has not been subjected to risk of harm in either parent’s care, but their poor relationship may, at some point in time, impact upon their son.

19. Each parent has high capacity to parent their child. They have high standards. They are capable, competent people who are very focused on their son’s best interest, and they each take their role as parent seriously. Their deficit is that they perhaps do not respect each other as X may want, i.e. as parents of their son.

20. There will be, perhaps, an impact upon X with a change to time being overnight time and more overnight time in his father’s care. However, he is used to spending overnight time in his father’s care. He has settled into that regime of time, according to his father. His father has very little difficulty with him and speaks of the activities they engage in.

21. I accept that his mother has a different view. That when he returns he is often tired and he can arc up with her, and there are some behavioural difficulties for her.

22. The nature of the child’s relationship with each parent: His mother is clearly his primary carer, and his most important attachment figure. However, he has a strong, attached relationship with his father, and seems to enjoy very much the company of his father’s wife, which should be a comfort to the mother namely that there is a female in the home that her son feels comfortable with and obtains affection from as he obtains clearly from his mother when he is with her.

23. The father has a view that the mother has not promoted his relationship with his son.

24. However, that cannot be correct, because he and his son have a strong relationship, and that would not have occurred had his mother not wanted it to occur. The father may have to look to his own behaviour, and his way of dealing with the mother for the explanation of this perceived problem.

25. I have formed the view that X will benefit from three nights in his father’s care at this age, this year, however accept it should not be three nights in a row, and that may be just too much for him at this point in time. However, by 20 February 2018, when he will be five, X should be well able to spend three nights in a row in his father’s care as well as the additional fourth night on a regular basis.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  20 June 2017