HARRIS & WINTERS

[2013] FamCA 412

FAMILY COURT OF AUSTRALIA

HARRIS & WINTERS [2013] FamCA 412

FAMILY LAW – CHILDREN – Whether the child is to spend time with the father in school holidays – Whether the mother’s new partner should be enjoined from approaching the father at events the father is permitted to attend.

APPLICANT: Ms Harris

RESPONDENT: Mr Winters

INDEPENDENT CHILDREN’S LAWYER: Fiona Caulley

FILE NUMBER: BRC 119 of 2011

DATE DELIVERED: 5 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 3 and 4 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Jones McCarthy

SOLICITOR FOR THE RESPONDENT: Mr El-Hanania
Saba El Hanania Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rice Naughton Buckley

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC119 of 2011

Ms Harris

Applicant

And

Mr Winters

Respondent

REASONS FOR JUDGMENT

1. The parents and the Independent Children’s Lawyer in these parenting proceedings were able to resolve most of the issues that were in dispute between them at the start of this three day trial. On the morning of the second day for which the trial was listed, they presented a draft of proposed orders that they all asked the Court to make. They were extensive and detailed and reflected a substantial degree of compromise by each of the parties on the positions they were contending for at the commencement of the trial. However, there remained a few matters upon which they asked the Court to adjudicate.

1. The proceedings concern parenting arrangements for the child C, (“the child”), born in November 2006. They have been made more complex and difficult than most parenting orders disputes by several factors. Those include:

(i)The child suffers from mild cerebral palsy and epilepsy which requires particular care and medical treatment;

(ii)The father has a history of bipolar affective disorder that has in the past interfered with his capacity to provide appropriate care for the child, although it has been in remission for about two years now. He also has some identified personality vulnerabilities;

(iii)The father is, currently, a resident of Papua-New Guinea, working there for a corporation;

(iv)The mother has re-partnered with a man with whom both parents were close friends during the many years of their marriage;

(v)The parenting relationship has become highly conflicted and acrimonious, particularly during the course of this litigation.

1. The parties agreed that the child would continue to live principally with the mother; that she would have sole parental responsibility for him with obligations to consult with the father in respect of decisions as to major-long term issues in the child’s life; and for the child to spend time with his father on a regular basis, increasing slowly to overnight periods of short duration after eighteen months.

1. The mother and the father also agreed that the Court should make orders for the father to pay the mother periodic child maintenance pursuant to the provisions of Subdivision D of Part VII Division 7 of the Family Law Act. They both submitted that the case is one that falls outside the provisions of the Child Support system as established by the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 and that, accordingly, the provisions of s 66E of the Family Law Act do not apply to prevent the Court from making child maintenance orders.

1. Upon preliminary consideration, with respect to the legal representatives of the mother and the father, I am not convinced that is correct and am, at this point in time, not prepared to make the proposed child maintenance orders even with the consent of the parties. Counsel for the mother and the solicitor for the father each conceded that the parties cannot by their own agreement confer power on the Court to make orders that this Court does not otherwise have.

1. I have referred the parties to the statutory and regulatory provisions that I consider determine the point and have given them the opportunity to consider the position further to determine whether they jointly press for the making of the child maintenance orders that they agreed upon. If they do, I consider it appropriate to invite the Child Support Registrar to also consider the matter and to determine whether he/she would want to make submissions on the point to the Court. I will then list the matter for further hearing with a view to taking those further submissions. If the mother and the father determine not to press for the making of the child maintenance orders, then I will not make them.

1. Without going through them all, there were many other matters associated to parenting issues that the parties agreed to as well. I made those orders by consent yesterday. Despite their agreement, I am still asked to determine three outstanding issues, namely:

(i)whether the child should be spending time with the father during school holidays;

(ii)how the costs of supervision of commercially facilitated transitions of the child from the care of one parent to the care of the other should be borne as between the parties; and

(iii)whether the mother’s new partner should be enjoined from approaching the father when the father is attending school or other events that he is otherwise permitted to attend pursuant to the agreement reached and the orders made yesterday.

1. The parties all agreed that these three remaining issues could be determined on the evidence as it is before me already, without the need for any of the witnesses to be cross-examined on any of their affidavit evidence. Each of the parties, through their legal representatives, made oral submissions as to the orders they contend should be made in respect of these three issues.

1. As to the second of those three issues listed above, I am satisfied that its determination should now await the outcome of the parties’ discussions as to whether or not they press for the child maintenance orders. If the parties do not  jointly press for the child maintenance orders to be made as agreed, I have directed that they each may file further written submissions in respect of the issue in light of the fact that the child maintenance provisions that had been agreed to will not be made.

Should the child spend school holiday time with the father?

1. The parties have all agreed that the child continue to spend time with his father every third weekend, but for six hours each day on Saturday and Sunday rather than the four hours that he has been having on each of those days for many months now. That is to continue for a period of nine months before increasing to eight hours on each Saturday and Sunday of every third weekend for a further period of nine months. Provision has also been made for the child to spend time with the father during the day on special days such as birthdays, Christmas Day and Father’s Day. After eighteen months, the parties’ agreement provides for the child to start staying overnight with his father every third weekend from 9 am on the Saturday to 5 pm on the Sunday.

1. All of this time that the agreement provides for the child to spend with his father is to be subject to the father complying with particular express requirements in respect of his continuing mental health care. Those requirements are, in my view, having regard to the evidence of the single expert psychiatrist who provided two reports to the Court in the lead up to the trial, as well as the evidence of the father’s treating psychiatrist, quite appropriate and certainly made with the best interests of the child in mind.

1. The father, who at the start of the trial contended for a more timely introduction of overnight time with the child as well as an introduction of periods of time where the child stays with him for half of the school holidays, still contends that provision should be made in the final orders now being made for the child to spend time with him during school holidays.

1. The father’s solicitor submitted that it was appropriate to now order an introduction to holiday time to come into effect in two years time so that the father did not have to commence fresh proceedings to achieve such an outcome at that time. He submitted that such fresh proceedings would potentially face arguments that the principles enunciated in the line of cases commencing with Rice v Asplund (1979)FLC 90-725 apply (such that the fresh proceedings might be dismissed) and, so as to avoid that prospect, orders should be made now that provide for the child to start spending holiday time with his father after that long lead in time. He also submitted that the psychiatric evidence was that the father’s bipolar affective disorder has been in remission for two years now; a positive factor in favour of increasing the child’s time with the father.

1. The Independent Children’s Lawyer did not support the making of an order at this point in time for the child to commence spending holiday time with the father at some later date. On her behalf, counsel submitted that the agreed orders proposed by the parties took the right approach to the issue of introducing overnight time to the father-son relationship having regard to the father’s mental health treatment issues and the child’s special needs. The mother’s position, unsurprisingly, was the same as the ICL’s position. 

1. There is no doubt that the father and the child have a strong, loving attachment to each other. It is in the child’s best interests for his relationship with his father to be maintained and fostered. The three parties have agreed on how best that should be done right at this point in time having regard to all of the presenting issues and relevant evidence, save in respect of any extra time during the child’s school holidays. I am satisfied, at this point in time, that the time the parties have already agreed to strikes the right balance between providing for the maintenance and fostering of the meaningful relationship the child has with his father and providing for the child’s well-being. I do not consider the child’s best interests dictate the need for putting in place extra time in the school holidays just yet.

1. The father will, no doubt, be disappointed about this outcome. However, as acrimony and distrust recedes and respect, confidence and trust increase, as I am confident it will with compliance by the parents with the orders that have been made with their consent, the likelihood of the time the child spends with the father increasing is high. Should the father comply with the treatment conditions the orders impose upon him and should he remain well, and should the mother comply with her obligations under the orders, the father’s relationship with the child will continue to strengthen. Those circumstances alone would most probably, at least in my view, suffice to overcome any argument that the Rice v Asplund principles apply, if the father is forced to bring an application for the child to spend even more time with him in another two or more years time.

1. The evidence I have read in this case persuades me that a cautious, gradual and measured increase in the time the child spends with his father is in the child’s best interests. Whilst the agreement the parties have reached only introduces overnight visits in eighteen months time and for only one night in every twenty one days, I do not consider it in the child’s best interests to provide for greater than that just now.  The child’s best interests will now be served by the parties focusing on reducing acrimony and conflict and making the agreed parenting regime work for the child. If that happens, the father can have cause for optimism that increased time with the child will consensually follow, even during the boy’s school holidays.

1. I will make no further orders just now for the child to spend additional time with the father in school holidays.

Should the mother’s new partner be enjoined from approaching the father when the father attends school or other events?

1. The parties have all agreed that the father is at liberty to attend “at the child’s sporting events and/or all school events”. The father seeks an injunction issue against the mother’s partner from approaching him if he does attend any of those events.

1. In his affidavit evidence, the father asserted that the mother’s new partner had been a cause of a lot of the conflict and acrimony that exists between him and the mother. The father alleged that the mother’s partner goads him and acts in an intimidatory way towards him when in his presence.

1. The mother and her partner deny the allegations and point the blame for the conflict at the father’s failure to accept the mother’s relationship with this man who was a friend of both the mother and the father during the years of their relationship. The untested opinion evidence of the social worker, Ms B, who has prepared two family reports in the case is, I consider, supportive of the mother’s position on this matter. However, I am, in the circumstances, truly not in a position to make findings of fact on disputed issues such as this where there was no cross-examination of the parties and other witnesses on their conflicting versions.

1. The mother opposes the granting of the injunction the father seeks. For her, it is submitted that the evidence establishes that her new partner is an important figure in the child’s life and that he has demonstrated that he cares for the child in an extremely positive way. It is submitted that there is no need for him to be restrained from approaching the father if they both just happen to be at the same sporting or school event.

1. The ICL also opposes the granting of the injunction the father seeks for reasons very similar to those advanced for the mother. The ICL submits that it is not in the child’s best interests for the mother’s partner’s interaction with the father to be fettered in circumstances where it is clear on the evidence that the boy would want nothing more than to see all of the adults who have significance in his life getting along amicably and co-operatively and where the Court can be optimistic, as a consequence of the resolution of virtually all of the matters in dispute between the parties, that this is likely to happen in the future. 

1. I do not intend to grant the injunction the father seeks. I am reasonably satisfied, on all of the evidence I have considered, and my observation that the mother’s partner who was present at the Court during the course of the hearing clearly chose to remain outside the Court at a point in the proceedings when he would have been entitled to accompany the mother into the Court room, that regardless of what may have transpired between the father and the mother’s partner in the past, that the mother’s partner, just like the mother and the father, will be focused on making these agreed parenting arrangements work in the child’s best interests in the future. I am equally satisfied that he has a capacity to exercise restraint as well as sensitivity to the child’s need not to be exposed to conflict and acrimony between him and the child’s father.

1. The order that has been made by agreement does not require any notice to actually be given by the father to the mother of any intention on his part to attend at sporting events or school events. It may be that the father simply turns up at some such event. Given that he resides in Papua New Guinea and will be travelling only each third weekend to Brisbane for the child to spend time with him, the prospect of the father turning up at a lot of the child’s events is low at this point in time. The prospect of the mother’s partner necessarily being at any of those events that the father turns up at is, I am satisfied, also relatively low. Accordingly, I do not expect that there will be frequent occasions when they will be in the near vicinity of each other at such events. I am confident that the two of them can, knowing how important it is for the child’s well-being, behave appropriately, not even necessarily going near each other on such occasions.

1. I am not persuaded that it is in the child’s best interests to make an order or grant an injunction directed at the mother’s partner requiring him to refrain from approaching the father if they are at the same event. He may, exercising his own judgment and discretion, determine not to do that, but I am not convinced it is necessary to put orders in place that effect that outcome.

1. I will, accordingly, make no further orders in respect of these two matters that remained in dispute between the parties after they had resolved virtually all of the other issues in dispute. There remains outstanding only the issues of child maintenance and the bearing of the costs of the facilitated changeovers. I shall return to those issues in due course after I have heard further from the parties.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 June 2013.

Associate: 

Date:  5 June 2013