GOLDSWORTHY & GOLDSWORTHY

[2017] FCCA 2101

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOLDSWORTHY & GOLDSWORTHY [2017] FCCA 2101

Catchwords:
FAMILY LAW – Interim parenting – 4 children – best interest considerations.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Banks & Banks [2015] FamCAFC 36
Bondelmonte v Bondelmonte & Another [2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
Keats & Keats [2016] FamCAFC 156
McCall & Clark [2009] FamCAFC 92
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1

Applicant: MR GOLDSWORTHY

Respondent: MS GOLDSWORTHY

File Number: PAC 1211 of 2016

Judgment of: Judge Obradovic

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Parramatta

Delivered on: 5 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Picket

Solicitors for the Applicant: Peter Dawson & Associates

Counsel for the Respondent: Mr Heazlewood

Solicitors for the Respondent: Lees & Givney

PENDING FURTHER ORDER

1. The parties shall have equal shared parental responsibility for the children:

   (a)W born (omitted) 2002;

   (b)X born (omitted) 2008;

   (c)Y born (omitted) 2008; and

   (d)Z born (omitted) 2013.

2. The children shall live with the mother.

3. X, Y and Z shall spend time with the father as follows:

   (a)During school term and commencing on Friday, 8 September 2017 and each alternate Friday thereafter from after school to 7pm on Sunday;

   (b)During school term and commencing on Monday, 18 September 2017 and each alternate Monday thereafter, from after school to 7pm;

   (c)During school holidays at the conclusion of Term 3 in 2017, from the conclusion of school on Friday to 5pm on the middle Saturday of such school holiday period; and

   (d)During school holidays at the conclusion of Term 4 in 2017, from 12 noon on 25 December 2017 to 12 noon on 31 December 2017, and from 12 noon on 6 January 2018 to 12 noon on 14 January 2018.

4. W shall spend time with the father as follows:

   (a)Commencing on Monday, 11 September 2017 from after school (or 3pm) to 7pm (including during any school holiday period); and

   (b)Otherwise in accordance with her own wishes, including at all times that the other three children are spending time with the father pursuant to order 3 above.

5. The children shall communicate with the father by telephone each Wednesday and Friday between 5.30pm and 6pm, when they are not otherwise spending time with the father.

6. Notwithstanding any other order, the children shall spend time on their birthday with the parent with whom they are not otherwise spending time that day for a minimum of three hours as agreed between the parties, but failing agreement from 4pm to 7pm.

7. For the purposes of facilitating time between the children and the father pursuant to these orders, the father will collect the children from the children’s school or the mother’s home as appropriate at the commencement of the time, and the mother will collect the children from the father’s home at the conclusion of the time.

8. In the event any of the children are ill or require medical treatment of any nature, the parent with whom the child(ren) are with shall contact the other parent within a reasonable period to advise him or her of the medical issue.

9. Both parents shall be permitted to liaise directly with the children’s schools or sporting bodies to receive any school reports, photographs, notices, information and the like, in relation to the children.

10. The parents shall within 7 days do all acts and things necessary to establish an electronic communication book such as that available through the website.

11. The father is restrained by injunction from consuming any alcohol while the children are spending time with him.

12. The matter is listed for directions at 9.30am on 1 February 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1211 of 2016

MR GOLDSWORTHY

Applicant

And

MS GOLDSWORTHY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings in relation to four children, W born (omitted) 2002, X born (omitted) 2008, Y born (omitted) 2008 and Z born (omitted) 2013.

2. The parties to the proceedings are the Applicant father Mr Goldsworthy and the Respondent mother Ms Goldsworthy.

3. The proceedings were commenced by way of Initiating Application filed by the father on 17 March 2016.

4. The mother filed a Response to the Initiating Application on 4 May 2016 joining property proceedings.

5. On the first return date of the matter before Judge Dunkley being 23 May 2016 the Court ordered the parties to attend a Conciliation Conference on 3 August 2016 with respect to the property proceedings and a Child Dispute Conference on 25 October 2016. The matter was adjourned for directions to 29 November 2016.

6. The parties settled the property proceedings at the Conciliation Conference on 3 August 2016.

7. The proceedings were then transferred to my docket. The matter was first listed before me on 28 October 2016, when certain interim orders were made by consent.  The parties on that occasion agreed to attend Unifam’s Keeping in Contact program and for the father to attend upon Dr L for the purpose of undertaking sleep study tests.

8. On 6 April 2017 the Court ordered:

   a)the parties and the children to attend a Child Inclusive Conference on 9 May 2017;

   b)the father to file and serve an Affidavit of Dr L in relation to his medical condition;

   c)the parties to file and serve a short updating Affidavit in relation to the children’s time with the father; and

   d)the matter be listed for interim hearing on 10 August 2017.

9. On 12 April 2017 the Court made orders in Chambers by consent of the parties for the children X, Y and Z to spend time with and communicate with the father on specified days and for specified times. The child W was to spend time with and communicate with the father in accordance with her wishes. The father however, pressed for more time and the matter continued to be listed for interim hearing.

10. The parties agree that the children shall live with the mother and that the parties shall share parental responsibility equally. The parties agree that the children should spend time with the father. However that is where their agreement ceases.

Documents relied upon

1. The Applicant relied on the following documents at interim hearing:

   a)Case Outline document handed to the Court on 10 August 2017;

   b)Affidavit of Mr Goldsworthy sworn 19 June 2017;

   c)Affidavit of Mr Goldsworthy sworn 5 April 2017;

   d)Affidavit of Dr L sworn and filed on 19 June 2017.

2. A letter dated 21 July 2017 from Dr L to (omitted) Hospital became Exhibit ‘1’ in the proceedings.

3. The Respondent relied upon the following documents at interim hearing:

   a)Response of Ms Goldsworthy filed 4 May 2016;

   b)Affidavit of Ms Goldsworthy filed 4 May 2016;

   c)Notice of Risk filed by Ms Goldsworthy filed 4 May 2016;

   d)Response to an Application in a Case of Ms Goldsworthy filed 30 March 2017;

   e)Affidavit of Ms Goldsworthy filed 30 March 2017; and

   f)Affidavit of Ms Goldsworthy filed 8 June 2017.

Competing proposals

1. The father seeks that the children spend defined time with him each alternate weekend from after school Friday until 7pm Sunday for six months to increase to before school Monday and alternate Monday nights from after school until before school on Tuesday and for half the school holidays.

2. The father also seeks telephone communication with the children each Sunday, Tuesday and Thursday nights.

3. The mother seeks that the child W spends time with and communicates with the father in accordance with her wishes and that the child Z does not spend overnight time with the father until she commences school.

4. The mother seeks that the children X and Y spend time and communicate with the father each alternate weekend from 9am Saturday to 6pm Sunday, each Tuesday from after school to 7pm and for one specified block week in each of the April, June/July, September/October and Christmas school holidays, with some additional days over Christmas.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] Ibid at [122]

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[4]

   [4] s61DA(3)

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interests and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[5]

   [5] MRR v GR [2010] HCA 4 at [15]

10. The Full Court in Goode v Goode[6] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

    [6] (2007) 36 Fam LR 422, (2006) FLC 93-286

11. Further Full Court authority has expanded upon what was said in Goode & Goode. In Marvel & Marvel[7] the Full Court made the following obiter comments:

    As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing….

    [7] [2010] FamCAFC 101 at [120]

12. In Keats & Keats, the Full Court held in respect of the conduct of interim proceedings:[8]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

    [8] [2016] FamCAFC 156 at [9]

13. A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.

14. The High Court[9] has recently stated:

    A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)

    [9] Bondelmonte v Bondelmonte and Another [2017] HCA 8 at [32]

Issues in Dispute

1. The issue in dispute in these proceedings is what time the children should spend and communicate with the father and the mechanisms for changeovers.

Relevant Considerations

Uncontested Relevant Facts

1. The father was born on (omitted) 1977 and is currently aged 40 years old.

2. The mother was born on (omitted) 1977 and is currently aged 40 years old.

3. The parties married on (omitted) 2000.

4. There are four children as a result of the parties’ marriage, namely, W born (omitted) 2002, X born (omitted) 2008, Y born (omitted) 2008 and Z born (omitted) 2013.

5. The parties separated on a final basis on 7 August 2014.

Other Relevant Evidence

Evidence in the father’s case

1. The father states that since interim consent orders were made in Chambers on 12 April 2017 the children X and Y have spent time with him including overnight time and that the child Z has spent day time with the father.

2. The father says that whilst time has been occurring mostly in accordance with the orders made by the Court on 12 April 2017 there have been some instances where the father’s time has not occurred. For example the father had asked the mother to swap days over the Mother’s Day weekend so that time could occur on Saturday rather than Sunday, the mother denied this change. Further, the father asked whether the time with the children on Tuesday 6 June 2017 could instead occur on Monday 5 June 2017 as the Tuesday was the mother’s birthday. Again, the mother denied this change.

3. The father has not spent any time with the child W but gives evidence that he has seen her on occasions when he has returned the children X and Y to the mother. He describes the conversations with W in his Affidavit filed 19 June 2017 where the child “groans” at the father’s comments to her and the father suggests that the child W is not being encouraging of the relationship between her brothers and the father.

4. The father concedes that his relationship with W is fractured and difficult and that he tries to talk to her and she turns away from him. The father believes that the mother has told W things about the father that has contributed to the child’s lack of engagement with him.

5. The father says that the mother is not encouraging of the children spending extra time with him and that she curtails his time with the children and is rigid in her compliance with the interim consent orders.   

6. The father concedes that he worked long hours prior to separation however denies the mother’s assertions that he did not have a close relationship with them whilst the parties were together. The father says that he would help the children with their homework and read books to them.

7. The father recounts conversations with the children X and Y of their memories with the father when they were younger where the father would read to them and help with homework.

8. The father says that the mother would take the children with her to work and the shops on the weekends rather than leave the children with the father so that they could spend time together when the father was not working.

9. The father is concerned that the children do not have a relationship with the extended paternal family and that they only spend time with the extended maternal family. He says that the child Z has not spent any time with the extended paternal family since she was a baby.

10. The father would like orders that clearly establish changeover locations as in the past he has experienced difficulty in receiving a response from the mother as to these details which has resulted in the father attending the wrong location.

11. The father was diagnosed with sleep apnoea in 2004 and has complied with treatment to manage this condition.  He denies that his overall health is a concern and admits that he is receiving treatment as outlined in the Affidavit of Dr L filed 19 June 2017 for his sleep disorders.

12. The father denies having an alcohol dependency.

Evidence in the mother’s case

1. The mother was the primary carer for the children following their birth and during the parties’ marriage. The mother says that she did the cooking, cleaning and shopping as well as worked in a (employer omitted). The mother took the children to school and picked them up, prepared their lunches and assisted with homework and sport activities. The mother was the main organiser for the household.

2. The mother agrees that the father worked long hours and says that on a Saturday after work he would go to his friend’s house rather than return home to spend time with the children.

3. The mother agrees that the child W has not spent any time with the father since 6 April 2017. She says that W is sometimes with her when she delivers the two boys to the father and that the father sometimes speaks to W and other times does not engage with her at all.

4. The mother denies that she has in anyway contributed to the fractured relationship between the father and W. The mother says that W does not like spending time with the father because it is “boring” and “he just sits on the lounge” or “plays on his phone” and “picks his horses” and that he does not do anything with her. The mother says that she just refuses to spend time with the father.

5. The mother states that the child X suffers from anxiety and that whilst he can cope with weekend time with the father, as it is presently, he will not cope with extended time from Friday to Monday. The mother says that the father also purchases second hand clothes for X which heightens his anxiety.

6. There is no expert evidence in respect of these matters which the mother asserts about X suffering anxiety. Annexed to the mother’s Affidavit is a “Psychology Report” from a Mr M, Psychologist in respect of a referral for assessment of X to ascertain “his general potential for academic learning and current needs in the academic learning setting.” The report is dated 7 December 2016. It does not go to the issues which the mother asserts.

1. The mother says that the child X is often anxious about attending his father’s house and often cries telling the mother “I don’t want to go, I don’t want to go”.

2. The mother says that children complain about the father falling asleep when they are talking to him and describes how when the parties were together the father was always tired.

3. The mother remains concerned about the father’s overall health and is also concerned about the food that the children are eating whilst in the care of the father.

4. The mother says that it is the father who does not communicate or respond to her messages about the children

Evidence of Dr L

1. Dr L swore an Affidavit on 16 June 2017 which was filed with the Court on 19 June 2017. Dr L annexed to his Affidavit a Report prepared by him in relation to the father’s sleep disorders.

2. The father first saw Dr L in 2006 where he presented with a history of obstructive sleep apnoea. The father at that time was using a sleep apnoea device however remained tired throughout the day due to his interrupted sleep of an evening. Dr L prescribed the father with a stimulant medication to reduce the daytime tiredness.

3. Dr L performed a sleep study and daytime test of the father in December 2016 which demonstrated a presence of pathological daytime sleepiness. Dr L reports that the test results showed that the father’s sleepiness was less severe than in 2006.

4. Dr L’s report indicates that the father has been “very compliant with therapy” and that his disorders are “well controlled on his current treatment which includes an automatic CPAP machine and stimulant medication”.

5. Dr L also opines that the father’s condition should not impact his ability to hold a driver’s licence provided he remains compliant with his treatment.

Parental Responsibility

1. As noted earlier, the Court made an interim order by consent on 12 April 2017 for the parties to have equal shared parental responsibility. That order was not sought to be disturbed at interim hearing. As such, the order will remain pending further order.

2. The making of an order for equal shared parental responsibility triggers the operation of s65DAA of the Act.

3. For reasons which are explained below, the Court does not consider that an order for the children to spend equal time with the parents is an order that is supported by the evidence and in the children’s best interest. However, an order for significant and substantial time, within the relevant meaning is in the children’s best interest.  

Best Interest Considerations

1. Consideration of relevant matters does not mean discussion. [10]

   [10] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal

2. The Court is significantly assisted by the Child Inclusive Conference Memorandum to Court dated 10 May 2017.

3. The youngest child Z was not able to be engaged in meaningful discussions regarding her views. Z in any event is only four years old, and given her age and apparent level of maturity, her views would not be given significant weight. It does however appear that she might be aligned with the mother and that her relationship with the father might be suffering. These are not matters which the Court makes any findings about, but are simply remarks made on the observations contained in the memorandum.

4. W, the oldest of the children, presented as reserved and teary during the Child Inclusive Conference interview, particularly when discussing the father and the breakdown in their relationship. She stated that she and the father “used to be really close” prior to separation.  It was observed by the Family Consultant that the child provided inconsistent information regarding her relationship with the father prior to separation. W spoke negatively about the father, stating that there was no point in her and her brother Y going to spend time with him because he did not interact with them. W appears to be very hurt by her father saying that he “broke all trust and friendship” by having an affair. W appears to blame the father for splitting the family up. When asked what she thought the father could do differently, W identified that he should think of more things to do when her siblings spend time with him. W said that she “wouldn’t care” if orders were made that she spend no time with the father.

5. W spoke positively about the mother, but with limited detail.

6. Y presented as friendly and engaged in discussion, however, he appeared to have specific information he wanted to provide. He too identified his father as the person responsible for the parents separating. When asked about his views, Y stated “I just want it the same” and said that he would “hardly see” the mother if he was to spend overnight time with the father each Tuesday. He said that he’d feel happy if current arrangements continued and a bit sad if he was to spend more time with the father.

7. X appeared to experience some difficulties responding to questions regarding emotions, but he generally provided answers that were consistent with the questions asked. X stated that he liked the arrangements as they were at present and that he did not want to spend time with the father during the June-July school holidays because he would be away from his family.

8. All four children had similar criticisms of the father, including what had occurred on the weekend before the interviews when the father got extremely angry, which none of the children identified as the father’s typical behaviour. The criticisms of the father appear to be, at least at first glance, largely trivial. However, they are children’s criticisms and ought to be given appropriate weight.

9. In the Court’s view, the father ought to consider how he might take those criticisms into account in trying to improve his relationship with the children. For example, the children largely complain that they do not enjoy themselves when spending time with the father because they are bored or that they don’t like the food he makes for them. This can no doubt be easily accommodated by the father by doing activities which the children might enjoy more or preparing food they might enjoy more. However, it is not the Court’s role to tell a parent how to parent. It is for the Court to determine the orders which are in the children’s best interest.

10. The children certainly appear to be resistant to spending more time with the father than is provided in the orders made by consent in April 2017. However, their views are but one of the considerations the Court.

11. The mother submits that the Court would find that she supports the children having a meaningful relationship with the father. The father asserts that there have been difficulties in the mother facilitating time with the children. The Court at this point in time certainly has some concerns about the mother’s capacity to foster a relationship between the children and the father, but does not make any findings either way. This will no doubt be the subject of further evidence if the matter proceeds. The Court also holds some concerns about the father’s capacity to meet the children’s present emotional needs.

12. The mother contends that X will suffer “psychological harm” if his time with the father is increased. There is no evidence about this. The mother’s opinion on the matter is of no weight. She has no relevant expertise in the relevant area, and whether a person will suffer “psychological harm” is a matter of expert evidence.

13. The mother also contends that Z should not be spending overnight time with the father. This is clearly the mother’s opinion, which she has formed based on her own experiences and perceptions. It is not however, determinative of the issue. Indeed, her opinion is in stark contrast to that of the father. While the children may be spending significantly more time with the mother than they are with the father, this should not of itself devalue the father’s opinion. The Court respects both parents’ opinions about what each of them consider is in the children’s best interest.

14. The mother also says that there is a risk to the children if they spend more time with the father than she proposes due to his health issues. The Court does not find that the father’s health issues pose an unacceptable risk of harm to the children.   

15. Both parents have been meeting the children’s physical needs during the times that the children have been spending with them. The father pays child support in the amount of $1,827.00 per month and half of the children’s school fees. The children live with the mother and as such she meets most of their day to day needs.

16. The mother also raises concerns about the father’s alcohol consumption. The father denies there is any risk to the children as a result and indeed denies that he drinks alcohol to excess. These matters are yet to be tested and given the serious consequences which might flow if these allegations are ultimately proven correct, a cautious approach in this regard is warranted. As such, there will be a restraint on the father’s drinking while the children are spending time with him.

The Court’s Determination in respect of time

1. It appears that W is calling out, in her own way, to the father. While on the face of it, she is putting on an “I don’t care” appearance, the Court is of the view that despite her outward appearance, she would benefit from having some one-on-one time with the father. The orders which the Court makes in respect of W provide for the child to spend a short period of defined time with the father each fortnight. It will be up to the father to persuade W to spend time with him on those occasions when he comes to school to pick her up. The orders also provide an opportunity for W to spend extra time with the father, including particularly during the periods of time when the other children are spending time with the father.

2. While Z has yet to spend overnight time with the father, she has observed her two brothers do so for a while. She has otherwise spent day time with the father. Her relationship with the father needs to be encouraged. She is too young to be deciding whether she will be spending overnight time with the father or not. There is no objective evidence which would suggest that overnight time with the father at the same time as her brothers is in any way detrimental. The father is the children’s father. While the parties were in a relationship he was an involved parent. There is no reason why this ought not be continuing.

3. An alternate weekend with overnight time with the father will allow the three younger children to settle into their time with the father, in the knowledge that they can relax and that the father will look after them for the weekend. In the Court’s view different times with different children provides too much instability and inconsistency for them. 

4. While the Court would like to see W joining her siblings when they are spending time with the father, given her age and displayed attitude, an order to this effect at this point is likely to be counterproductive to her relationship with the father.

Conclusion

1. For all of the reasons above, orders as set out at the forefront of these Reasons are made.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 5 September 2017