Hale and Gallo

[2016] FCCA 442

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALE & GALLO [2016] FCCA 442

Catchwords:
FAMILY LAW – Parenting – 12 year old child who is anxious – two good parents – conflict.

Legislation:

Family Law Act 1975, Part VII

Applicant: MR HALE

Respondent: MS GALLO

File Number: MLC 13797 of 2007

Judgment of: Judge Harland

Hearing dates: 18 & 19 February 2016

Date of Last Submission: 19 February 2016

Delivered at: Melbourne

Delivered on: 19 February 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Brewer

ORDERS

1. The father and the mother forthwith make arrangements for them to attend upon a psychologist for the purpose of family counselling.

2. If the parents are unable to agree on a provider for family counselling within 21 days, the parents are to engage with Life Works for joint counselling.

3. The child X born (omitted) 2003 (‘X’) live with the mother.

4. X is to spend time with and communicate with the father as follows:

   (a)Alternating weekends from Friday after school until Monday before school;

   (b)The father is able to extend the weekend time that he spends with X (and articulated in order 3a) to Tuesday before school arrangements are able to be made with his employer and he notifies the mother of such;

   (c)From 24 March 2016 until 2 April 2016;

   (d)From 24 June 2016 until 2 July 2016;

   (e)From 16 September 2016 until 24 September 2016;

   (f)7 December 2016 until 2 January 2017;

   (g)From 9.00am, 24 December 2016 until 9.30am, 25 December 2016 and each alternate year thereafter; and

   (h)From 9:30am, 25 December 2017 until 5:00pm on 26 December 2017 and each alternate year thereafter; and

   (i)Any other times as agreed between the parties.

5. If X’s birthday occurs during time when she is in the care of the father, such time be suspended from 5.30pm until 8.30pm.

6. Each year the mother is to supply the father with a calendar dividing school holiday time between the parents for the upcoming year and the father is to confirm with the mother that they are the dates that he understands to be correct.

7. The father and, or the mother attend appointments with Ms L at the request of Ms L.

8. The parents be restrained from having X travel on public transport without the written consent of both parents but are at liberty to utilise the services of the private school bus.

NOTATION:

(A)Both parents make their best efforts to take X’s attendance at extra-curricular activities of her choosing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13797 of 2007

MR HALE

Applicant

And

MS GALLO

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a case that has taken a lot of twists and turns in the past two days.  It is a case that concerns X who is 12.  Her parents separated when she was very young. X would not have memories of her parents parenting her together. Both parents have formed other relationships. X has two half siblings who are six and four.  There is no doubt in my mind that both parents love X and are concerned for her welfare and want to find a solution that is best for her but struggle to find what that solution is. 

3. The parents have a difficult relationship with each other and whilst they have been able to come up with parenting arrangements and agree on issues it is clear that underneath it all there are very different parenting styles and beliefs about some parenting issues. There is also a lack of trust in each other’s parenting styles and abilities. It is clear from the family report that X has a strong attachment to both her parents and also to her extended family, being both parent’s partners, her younger siblings and other family members, including cousins on both sides and that kind of attachment and indications of good relationships would not be there if both parents were not doing something right for X. 

4. It is also clear from the material that both parents have filed, from the family report and from evidence given today that X is a very sensitive young girl who struggles with anxiety and probably struggles with some other issues. She has found this situation very difficult.  Many children find having parents who are separated, at times, difficult to deal with particularly when that child is aware of there being conflict between parents. Conflict does not necessarily mean parents shouting at each other or having fights. Sometimes it can be the silences, the lack of communication; the tone of voice or the body language that a parent shows when talking about the other parent or activities or when a child brings up something that she has done in another household. 

5. It is clear that X is painfully aware of the differences between her parents and feels some pressure and, responsibility about that.  It is, again, not that unusual for children, particularly of her age, to feel that they are responsible in some way for the situation that they find themselves in. One of the things that was striking in the family report about X was the fact that she asked if what she said could be confidential between the family report writer and myself. It is unusual for a 12 year old to express that and it indicates the level of stress that she feels about the situation. It also ties in with what X said about her parents being offended.

6. It is clear that what X was getting at was that she feels like both parents get annoyed or upset when she says particular things and it might be because she wants to do an activity that interferes or impinges on the other parent’s time. From the way she expresses it, this is very much directed at both parents. X feels at times that both parents get offended, and she thinks that they should not be allowed to. That struck me as X asking for some help to release the pressure from her. That requires her parents to find a more constructive way of managing their relationship because they are always going to be X’s parents and there are going to be issues that they are going to have to communicate with each other about just as there has been in the past nine years since they separated.

7. It may be that the hearing itself has brought some of that into focus because there is no doubt that this hearing, and, indeed, any hearing about your child, is very stressful to parents and the stakes are high.  It is also a case where both parents have moved from their initial positions and there has been some toing and froing but I am not critical of that. Certainly in terms of change of position it is notable that the father was seeking an equal shared time arrangement, that is, a week about arrangement, but he was no longer seeking that by the time of the hearing and that was addressed in the family report.

8. This change of position indicates some level of insight into the issues because certainly, with households that are so different and parenting attitudes and styles that are so different it would be difficult for X to be in a situation like that;  not because she would be any less loved in either household but because I suspect that for X change is difficult which means transition is difficult and when one considers an equal time arrangement, those arrangements tend to work when people do not need to ask a court to make that arrangement because it is about parents living close together geographically.  We do not have that in this case. 

9. It is also to the father’s credit that he has changed his employment and moved his employment closer.  That shows a desire to be involved and remain involved in his daughter’s life and to try and make the logistics of that easier.

10. The mother has also changed her position that she was seeking sole parental responsibility but by the time of the hearing was no longer seeking sole parental responsibility. In my view, sole parental responsibility would not have been in X’s best interests because it is important that the parents are able to consult about the major issues and be involved in those even though it is difficult for them in terms of communication. 

11. When you have parents who are both regularly involved with a child it is important that they have involvement in that decision making process as well. The school issue was clearly difficult for both parties and the court needed to make that decision but that has been resolved and the father says he wants to be involved with X’s school regardless of what his views are about that school and schools that are (omitted) or private schools.  It would be fair to say that the mother is cynical about whether or not the father is really going to be involved in X’s school but, certainly, did not have any opposition to him being involved with the school.

12. From X’s perspective it would be a good thing if she saw both parents being involved in the usual school activities and that is one reason for it being in her interests that the father collects her from school on Fridays and takes her to school on Mondays because it shows X that he is coming to her school.  He can see where X’s school is and he also has the opportunity to talk to teachers.  It also means that there is not any direct handover between the parents on those occasions that might be uncomfortable or cause stress and, again, that would not be because of either parent deliberately making that handover uncomfortable or stressful but that it can be difficult to manage those kinds of things without stress when there is tension between the parties, and there clearly is, and X is a child who seems particularly sensitive to not just what is going on with her parents but sensitive in general. 

13. When someone is really anxious, they are fearful about change; they are fearful about things they cannot control. For a child there are often a lot of things they cannot control because adults make the decisions for them and, of course, there are good reasons for that. I suspect that is where in the family report there is a recommendation about X choosing a weekend as to whether she spends that with the father or the mother and that she do that in consultation with her parents. Whilst it is clear from the report where that recommendation came from, it is something that I expressed real concern about both at this hearing and also when the school issue was before me, because in my view that would put X under more pressure and not because of either parent overtly or deliberately putting pressure on her but that she would feel it because it is a decision that she would be asked to make and what she would be worried about is hurting her mother’s or father’s feelings if she chose to be with the other parent.

14. Of course, a reason for choosing that might be because she has got a play date or there is an activity on or she does not feel like packing up that weekend.  It can be many different things that are not a reflection on either parent but certainly at this stage she would find that stressful, and both parents have recognised that would probably be the case.

15. It is clear that one of the differences between the parents is determining when X is going to be ready for more autonomy. On one level you look at a 12 year old and you think that, in a year or two you would not expect travelling on public transport to be a big issue, but that is an issue where there is a lot of difference between the two parents and it is a stress for X. 

16. Regardless of what other 12 or 13 year olds might think, it is stressful for X and it is stressful for X because she knows that her mother is stressed and worried about it but that her father wants her to do it and be independent. I suspect that is part of the stress; part of it may be fear about change as well.  It is my impression that the father in encouraging that sort of thing is not out of malice or some desire to hurt X or her mother.  I do not think that is where it is coming from.  Those types of issues and concerns are the kinds of things that are going to keep happening and during the course of the hearing the effect of this on X is something that both parents have expressed the view that they need to find a way of doing better.

17. That is a first step acknowledging that and both taking responsibility for that. That does not underestimate how difficult it can be to work through. Certainly in terms of this case taking twists and turns when the case resumed this morning, the mother gave evidence about X being very distressed last night and raising allegations about her father and his behaviour and the concern that was then raised was whether or not this was a matter that I could, in all conscience, finalise today or whether or not it was a matter where there needed to be family therapy, an Independent Children’s Lawyer appointed, and proceedings coming back. One of the things that was notable was that although the mother was expressing real concerns about these issues and expressing concerns about X’s distress she was not saying she wanted to stop the father’s time; she was not saying that she wanted sole parental responsibility. 

18. The mother was not saying that she does not want there to be weekend time for the father and X. She is still saying I want there to be alternate weekend time and not the two out of three. I do not know what has prompted X with those latest issues and that was one of the things that concerned me about this matter; do we try and get to the bottom of what is going on? On the one hand both parents say, this has happened before: we have had these concerns and allegations arise before that leads to concerns about what is going on in the other’s household and I think that that comes from both perspectives.

19. From the mother’s perspective what is going on in the father’s household for X to say these things?  From the father’s perspective what is going on in the mother’s household for these allegations to be made? I now face a dilemma about what to do in X’s best interests. I also note that both parents urge upon me to finalise the matter today and saying that, both are concerned about how X is going to cope if it is not finalised; if there continues to be uncertainty and proceedings on foot because it seems that one of the things that precipitated her distress last night was knowing that the matter was still in court.

20. It does not matter how she knew about the matter being in court today. She certainly is aware of the court proceedings because she would have been aware of it for the family report process because you cannot really keep it from a 12 year old when they are going and talking to someone about those issues.  Clearly she is worried about the process and what is going to happen and I suspect some of that is because it is not in her control. That is one of the classic things about someone who is anxious. 

21. Anxiety skyrockets when an anxious individual cannot control things, so they try and come up with ways of being able to control things but cannot and it becomes this vicious cycle for them and one thing that has also been positive in recent months is that the father has been able to talk to X’s psychologist and now says he understands what that is about and he supports it and that is important.  It is clear that X needs that facility available to her and that she is able to talk about all sorts of issues, not just her mother and father.  It might be about the children at school, friendships, teenage issues, stuff happening to her body, all of those sorts of things, and for her to have a confidant is a valuable thing and for both parents to support her having that therapeutic relationship is an important thing as well. 

22. The dilemma that I have been considering this afternoon is what steps do I take?  Do I say this needs family therapy and needs to see if that is going to sort things out? On one level that is an attractive option.  On another level I might say is it that X needs more therapy on top of what she is getting; or is it the parents?  Is it that it is actually not X’s problem; it is the parents, but X has to deal with it?  Whilst this is not an easy decision because it is concerning a young girl, I am persuaded that it is in X’s best interests to finalise the proceedings because I accept that from both parent’s perspective they acknowledge that this has put a lot of stress on X and ongoing uncertainty is just going to add to that.

23. Maybe X would think that if it is not finalised today that somehow that is her fault; that somehow it is because of her getting upset or she may feel like she is responsible and that if it involves taking her to see another professional that there must be something really wrong with her.  X might start to feel that way and, of course, that is the last thing that either parent wants, or that I want, for her.  So then it became an issue of thinking about what other option there is and that is why I raise the issue about both parents getting counselling together to address those issues and, I observed some willingness in both parents to try that option and, on one view it might be advantageous to make interim orders and see how that goes and reassess but, again, weighing up the options I think the better course is to make final orders but to also order that the parents engage in family counselling. 

24. I hope that there is a real willingness to engage in that process in good faith, because if there is then there are the prospects of that being able to work. The worst that could happen is that it does not work and the communication difficulties continue and that they continue to have an impact on X but it is not a case where I am faced with the decision of needing to restrict, or even exclude a parent, from X’s life.  This is not anywhere near one of those cases.  It is not a case about unacceptable risk to X.  It is clear that despite what she said to her mother yesterday about her father not loving her that both parents love her and she loves her parents.

25. The trick can be to positively reinforce that with her.  So when she says ‘dad does not love me’ you say, yes, he does, ‘he loves you a lot’, and vice versa.  It is giving X permission in that sense and you might not even have thought of it that way before but that is what this is really about.  One of the concerns I had at the beginning of the case was the lack of what is referred to as substantial and significant time.  The concept of substantial and significant time is provided in Part VII of the Family Law Act 1975 (Cth), and what it says is that the type of time parents have with their children is important. It is important that they have time during the weekdays as well as weekends and holidays. It says that it is not about adding up the hours and working out the percentages of time that parent’s spend with their children. 

26. From a child’s perspective that is not the issue.  It is about the quality and it is about the type of time, it can be just as important to have both parents involved in all the mundane things:  getting up for school, making lunches, supervising the homework, taking children to all their various activities. That sort of involvement can be really important so that it is not just seen as one parent who is doing fun things. One concern was that there was not much of that happening in terms of the father’s time and I think that historically that has been a logistical issue. There has been distance and that is an issue that has been addressed by the father having two out of three weekends and logistics do impact these things. 

27. The logistical challenges are not as great as they were and partly because X is older but there are still some challenges and there is the dilemma about leaving the weekend arrangements in place or changing them.  The father seeks to keep the weekend arrangement in place so that he has two out of three weekends and he says that because he thinks it is important that X has that quality time in his household and has time with her half siblings.  The mother says that she wants to switch it to alternate weekends because she thinks that will be more predictable for X and that it will be easier to manage the competing matters for her attention; the various extracurricular activities or other social activities. Her proposal has changed over the course of the hearing as has the father’s, who is proposing some midweek time and the latest proposal was proposing overnight time. 

1. Initially the mother’s proposal was for overnight Wednesday to Thursday.  By the time of close of evidence the proposal was that it be from Friday after school until Tuesday before school having the view that a block, with fewer changeovers would be more beneficial. It is that issue about weekend time and the time during the week that are the issues that are in contention because there is not really a dispute about the holiday time.  There is a dispute about how you construct that order, or word that order, and how it is interpreted but no dispute about the principal that each parent have half the school holidays and, a dispute about the particular time over Christmas but that is not a significant amount of time in the scheme of things. 

2. The real issue has been, more than anything else, the weekend versus the week time. From the father’s perspective the difficulties with time during the week is a practical one because he says that his employer agreed to him being able to leave early on Fridays and come in later on Mondays to be able to facilitate the pickup and drop off at school but that was reluctant and that his employer is not so positive about adding another time to that, and then there becomes an issue about getting there on time, et cetera. Part of that feeds into why I think the father also wanted X to be able to use public transport because that would make it a bit easier.

3. Weighing it up, in my view, it is in X’s interests to change the arrangements to alternate weekends.  However, there should be the option for the father to have that additional time during the week.  Whether or not his employer is willing to have him not come in late on Monday but come in late every second Tuesday is something he could explore because it is not increasing the time but changing the day and there would be some sort of mechanism where that is an option that he can inform the mother he is going to take up. 

4. What I am considering is making the order for the alternate weekends from Fridays to Mondays but with the father being able to opt to extend that time to Tuesday if his employer allows him to. That is not relying on the parents agreeing to that.  That is the father giving the mother notice that he can do that because I can see the value in having that time and also having that overnight time where she is going to come home from school and she is going to school the next day because that is quite different to what the father is getting at the moment which is picking X up after school and dropping her to school but the father does not have any school nights because Friday is a bit different.

5. The reason why I will make it a notice issue is because it is not going to help either parent, or X, if the father is in a position of saying this is really impossible for me; I cannot do it.  In terms of the school holidays I intend to make the orders that are set out in the mother’s proposal including specifying the dates for this year and it seems to me that by specifying the dates that line up with X’s actual school dates avoids any misunderstanding about, or difference in calculations. I have to say that the issue about calculating the middle day or night in the school holidays is a frequent problem that parents have.  It is by no means a unique problem, and it can be a problem of the orders and interpretation. 

6. I will include an order that at the beginning of January each year the mother supply the father with a calendar with the dates and for the father to look at those dates and confirm with the mother that they are the dates that he understands to be his holiday time because that is going to avoid there being a problem about those dates.  I note that the special days was agreed between the parents as were the orders going through and including the mother having the time of 5.30pm to 8.30pm on X’s birthday which it seems it will usually fall in, if not every year, almost every year in the father’s time because of the way the school holidays are.

7. There was also agreement with respect to X’s ongoing attendance with Ms L and whilst the mother’s proposal seeks an order that the father attend the appointments with Ms L on her request, I intend to make that a mutual order, so both parents attend when she asks.  If Ms L tells the parents to leave the appointment they should leave, but there may well be from time to time that she wants to give the parents feedback or raise issues with either of the parents, and I imagine, too, there will time to time, particularly for the father, where he wants to check in with Ms L to see how things are going, particularly because, most of the appointments are taking place when X is in the mother’s care. When you are the parent taking a child to an appointment, you often get a little bit of incidental feedback.  You are there whereas if you are not the person involved you do not have that same sense.

8. The mother seeks an order requiring the father to facilitate X attending her extracurricular activities. I am going to make this a notation rather than an order that is enforceable but I am going to say that both parents make their best efforts to take X to her activities because there are going to be times when there is something that comes up.  It might be a family event or an occasion but it is very much in line with my understanding of the father’s evidence that he did not want to give an absolute guarantee, but make the effort to do it and I accept, that because he has got two young children that sometimes there are competing issues but it is also important, particularly if X gets involved in a sport or school activity, firstly because it might be compulsory but, secondly because that sort of participation across the weekends can be important.

9. It will also be important for X to have the sense that both parents support her in the activity. It is a bit like she knows both parents support her (hobby omitted) activities.  She knows that both parents understand that she has a love for animals and wants to volunteer and has something that she is passionate about which is always a great thing for a child to have:  to find something that she is really interested in. 

10. I am going to order that the parents not allow X to use public transport apart from the private school bus services without the written consent of both parents.  This is an issue that is ripe for discussion and, as I had indicated before I am going to require the parents to go to joint counselling and that is an example of an issue that could be discussed with some help because the issue is not that either one of you wants to put X under stress or pressure but there is a real issue about knowing when she is ready.

11. How do we know when it is a good thing for her as opposed to something that is going to be stressful? Sometimes it is a good thing to challenge a person.  Sometimes it is good to challenge yourself about something. The issue is it not being too challenging, too overwhelming, too distressing, and the real challenge is identifying when she is ready, and both parents feeling confident that she is ready.  That is one of the issues that the parents have very different views on currently and I cannot say that either view is right or wrong.  One reason for making that order is that it is an issue that the mother is so worried and stressed about, that it is an issue that spills over into X being stressed about it or certainly being aware that the mother is stressed about and therefore is stressed about it.

12. In terms of Christmas, the father was seeking a change to the arrangements in the previous orders because he wants to have more time at Christmas to be able to have X attend a family Christmas and seeks that it alternates.  So that in one year he has from 9.00am Christmas Eve, to 9.30am Christmas morning and the other year from 9.30am Christmas morning until 5.00pm Boxing Day.  The mother seeks that the current arrangements stay in place and expressed concern about her working arrangements. The mother works in (employment omitted) and Christmas Eve and Boxing Day are two of the busiest days of the year and whilst I understand and accept that that is the case I also think it is in X’s interests to be able to have extended time over what is a special day with her father, so I will make that order. 

13. What I would hope is that it will be possible to switch that around depending on the mother’s roster and depending on when the family arrangements are in place.  So if the mother’s roster comes out and says she is working Boxing Day and not Christmas Eve that there can be some sort of swap but I think if there cannot be, or there cannot be an agreement, I propose on making that order and having it start from this year so that this year will be 9.00am Christmas Eve until 9.30am Christmas Day and then it alternates every year. 

14. One of the things that one hopes in these matters, and it is possible for it to happen, even though I have no doubt that the two of you at the moment cannot see it happening at all, is that these orders go in a drawer and do not need to get pulled out because you are able to be flexible and agree on things but if you cannot, the orders come out and the orders are what are followed because the orders are designed to be a default arrangement of what is going to happen if the parents cannot agree. If the parents can agree then it can change and certainly in this case it would be useful for the parents to agree in writing about the change so that there is not an argument about it later on. 

15. It seems to me there has been some capacity to agree in the past; not on everything, but about some things and one would hope that can happen again. I think one thing that both parents recognise is that as X gets older she may be dictating a lot more about what happens because it can be a very difficult thing to force a 15 year old to do anything that she does not want to do, depending on what it is. These orders remain in place until X is 18 unless the parents agree on a change but as I said there can be a reality about what happens and there is a need to listen to what your teenager says. 

16. It does not mean you have to agree with X; it does not mean you have to do what she wants, but it is recognising that as she gets older, and I think that that is something that the parents are aware of.

17. The other order I am going to make is that the parents agree within 21 days on a family counselling service to engage in for the purposes of joint counselling for the parents to discuss the following things:  improving how to communicate with each other about X, discussing issues that you do not agree on and how to address that, including the public transport issue, and, thirdly, discussing strategies to help X with the stress she feels about the conflict. 

18. If the parties cannot agree within 21 days I am going to order that the parents engage with LifeWorks for that therapy.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  3 March 2016