Herman and Stokes
[2010] FMCAfam 56
•3 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERMAN & STOKES | [2010] FMCAfam 56 |
| FAMILY LAW – Parenting dispute – primary issue is mother’s application for shared care – consideration of family report – problems of shared care where substantial dispute between the parties. |
| Family Law Act 1975, s.60CC |
| Korban v Korban [2008] FAMCA 292 |
| Applicant: | MR HERMAN |
| Respondent: | MS STOKES |
| File Number: | DGC 3742 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 30 November & 1 December 2009 |
| Date of Last Submission: | 1 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 3 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Mort |
| Solicitors for the Applicant: | Jonathan Kemp & Associates |
| Counsel for the Respondent: | Mr T. Hutchings |
| Solicitors for the Respondent: | Women’s Legal Service Victoria |
IT IS NOTED that publication of this judgment under the pseudonym Herman & Stokes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 3742 of 2008
| MR HERMAN |
Applicant
And
| MS STOKES |
Respondent
REASONS FOR JUDGMENT
This case is all about how much time [X], born [in] 2002, spends with each of his parents.
The father’s proposal is that [X] live with him, and spend time with his mother each alternate weekend from Friday 4.00 pm to 5.00 pm on Sunday, together with half the school holidays and other special times.
The mother’s proposal is that [X] spend time with her for two consecutive weekends of each three weekends until the end of the 2009 school year and time over the school holidays and that from the commencement of the 2010 school year and thereafter there be a week-about arrangement. There is, additionally, a dispute about Christmas.
For the reasons that follow, I think that, at least for the moment, the father’s proposal is more in [X]’s best interests.
The Facts
The father was born [in] 1979 and is 30 years old. He appears to be in stable employment. He is also in good health.
The mother was born [in] 1985 and is 24 years old. She is likewise in good health, and is employed as a [occupation omitted].
The parties commenced their relationship in 2001. The father says separation took place in about July 2003, and the mother says
14 August 2003.
It is common cause that following separation [X] lived predominantly with his mother but spent time with his father.
The father moved to [W] where he re-partnered with his now wife,
Ms T. In late 2006, the father returned to Melbourne and it was agreed that [X] would live with the father and his new partner. Ms T has another daughter, [Y], born [in] 2004, who lives with them.
Whether the father returned in order to look after [X], as he asserts, or whether he returned for other reasons, as the mother asserts, is irrelevant. The fact is that since late 2006 [X] has lived in the primary care of his father and stepmother.
The mother has a daughter from her relationship with Mr S, namely [Z] born [in] 2005. Ms Stokes separated from Mr S in late 2006, and it was the emotional trauma for her of this separation that in large part caused her to give [X] back to his father and indeed, [Z] for a while to her father.
Stressors have emerged in the relationship between not only the father, Mr Herman, and Ms Stokes, but significantly, also between Ms T and Ms Stokes.
There are countervailing histories given as to alleged erratic behaviour on the part of the mother, which I will return to when I consider issues of credit.
On any view, there was an unpleasant incident at about Easter 2009 when the mother arrived at the father’s parents’ home to collect [X]. Relations have clearly been tense between all concerned ever since.
The father and Ms T have bought land in [C] and propose to build there and move there. At the moment, they are presently living with the father’s parents at [S].
The mother has had a very troubled history so far as her residency is concerned. Without in any way being critical, because it must have been difficult for her at all times to obtain a place to live, the fact is she has moved numerous times since she first separated from Mr Herman. She proposes to relocate to [C] when she knows where the father is going to live.
[X] was enrolled by his father at [S] School in 2007, and he is still there. It is proposed that he move to the [C] School as and when his father moves to [C].
The Witnesses and Their Credit
Mr Herman was, by and large, an impressive witness. This case is unusual in that all of the three primary witnesses concede that they have behaved less than perfectly at times. Indeed, most of the differences in their evidence arise in my opinion from their necessarily differing perceptions of events rather than from any lack of truthfulness. The father readily conceded that his decision to enrol [X] in school without telling the mother was inappropriate. He also conceded that he was wrong not to tell the mother he was going on a cruise in May 2009 and leaving [X] with other family members. He has also very properly conceded that he should not have said to the mother that [X] would not need her any longer now that he has got Ms T. This hurtful, spiteful and unnecessary remark has clearly, as one would have imagined, been a sticking point on an ongoing basis.
Nonetheless, Mr Herman’s evidence was generally given straightforwardly and with conviction and in the main, I accept it.
Ms T was an extremely impressive witness. She was forthright and direct in answers to questions, and came across to me as someone with [X]’s interests very much at heart, something which is by no means always said of stepmothers. She said, and I believe her, that she has a good relationship with [X], and does the normal tasks of a mother that one would ordinarily do during the week.
She confirmed that communication with the mother, Ms Stokes, had broken down between them approximately a year ago. She said that it was important that [X] calls Ms Stokes mother, and also that it was important that there be stability for [X]. In response to a question from counsel for the mother as to whether [X] loves Ms Stokes, she replied with words to the effect, “[X] loves her; of course he does.”
Ms T was candid in conceding the poor interpersonal relationship between her and Ms Stokes and, as I say, I found her evidence generally extremely believable.
I note that there is an established routine at the father’s house; that [X] is in bed by 7.00 to 7.30 pm which Ms T described, correctly in my view, as a good routine for his schooling.
The paternal grandmother, Ms H, was called. She confirmed that she communicated poorly with Ms Stokes. Although she was not that ready to make the concession, it was clear that she dislikes Ms Stokes.
Mr H, the paternal grandfather, was called. He confirmed that relationships between the two families were tense. He also confirmed that no-one behaved well at the Easter incident when the mother attended to collect [X]. This concession does him credit.
The mother, Ms Stokes, gave evidence. She confirmed that she wished to move to [C] when she knew where to go. She also confirmed, as I have said, the many changes of residence that she underwent after separation.
In the main, I found Ms Stokes likewise an impressive witness. She clearly loves [X] and [X] loves her.
Nonetheless, some of her answers were, understandably in the circumstances, unconvincing. Her assertion that she would be able to rent a property in [C] seemed to me debatable. She only presently earns $350 per week gross and it would appear from her evidence, limited as it was, that rental properties of the sort that she is seeking cost the better part of $300. Her evidence that she would obtain more work should she need it to pay her household bills, while commendable, seems to me to be somewhat poorly thought out.
She did confirm that her separation from Mr S had been traumatic, and it was that confirmation that led me to observe earlier that this was one of the primary reasons why [X] was returned to his father.
Under cross-examination, I found some of Ms Stokes’ explanations for not spending time with [X] somewhat unconvincing. On the other hand, however, she was prepared to concede that she does not like
Ms T and vice versa.
To her credit, the mother agreed that better communication between the parties would be a good idea, as would family counselling.
She also conceded that [X] had been taken to Shepparton one weekend by a family member and that she had concealed this from the father. She confirmed that this was something she now regretted.
She confirmed that [X] is usually in bed with her by 8.00 pm, but stays up until 9 o’clock on Fridays and Saturdays.
Dr Harvey, the report writer, was called. He confirmed, under cross-examination by counsel for the father, the contents of his report by which he stood. I found Dr Harvey’s responses to counsel somewhat defensive.
He did, however, confirm that [X] has a good relationship with his half-sister, [Z], whom he calls [Z].
He also confirmed that he had not asked [X]’s views as to where he ought to live. I accept that asking a seven year old may often be somewhat unproductive, but I would express some surprise that this was not done in this instance given that, from Dr Harvey’s account, [X] is an extremely lively and relatively precocious young boy.
It was Dr Harvey’s position that the sort of animus that obtained between the parties would happen in any event, whether time was limited to weekends or was week-about. He stuck to this opinion, despite being referred to research on the matter, including research recently published by Jennifer McIntosh and Richard Chisholm in a paper in the “Australian Family Law” at volume 20 entitled “Shared Care and Children’s Best Interests in Conflicted Separation”.
I turn to the pathway indicated by the Family Law Act 1975.
Shared Parental Responsibility
Both parties sought shared parental responsibility and the Court will order it.
Equal Time
It is important to remember that the opinions of a report writer like
Dr Harvey, given in his area of expertise, must be accorded considerable weight. Nonetheless, it is not the case that a report writer must be followed slavishly in every case. The decision as to the child’s best interest must be exercised by the Court.
I bear in mind not only the research of Professor McIntosh and Professor Chisholm, but also the remarks of Moore J in Korban v Korban [2008] FAMCA 292 at [77]. I extrapolate the following passage which his Honour regarded as setting out his views in concise form:
“These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and co-operation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorientate and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.”
I respectfully adopt and endorse those remarks. In my view, Dr Harvey did not give sufficient weight to the sort of matters listed by Moore J in Korban. This may well be because his impression of the mother was somewhat more favourable than mine.
Here, the evidence does strongly suggest that [X]’s life was somewhat unsettled following separation. He lived with his mother and saw his father on a fairly regular basis, but moved residences time after time.
Without in any way seeking to be critical of the mother, it does appear that when [X] first started school he was somewhat unsettled. It appears that he has now settled down and is doing extremely well.
The mother was extremely young when she commenced her relationship with Mr Herman and indeed at the time when she gave birth to [X]. I endorse the remarks of Dr Harvey that, as a very young mother, she was somewhat overwhelmed by events.
[X] now, in effect, has two mums, and clearly loves them both.
In my view, the mother’s evidence about timekeeping and punctuality and her spending time with [X] was to an extent unsatisfactory. A certain immaturity was evident in her demeanour even in Court, although, of course, I make full allowance for the stress and distress that the Court proceeding would necessarily have imposed upon her.
Putting the matter shortly, I think it is not in [X]’s best interests, at this stage, to move to a regime of shared care. The reasons that impel me to this conclusion are:
a)the differences of timetabling in the respective households. With his father and Ms T he goes to bed early, with his mother, somewhat later, and rather later than might be thought desirable for a seven-year-old in any event;
b)on any view, [X] has settled down and done extremely well at school since he went to live with his father;
c)the mother’s capacity to get [X] to school on time on an ongoing basis remains somewhat unclear; and
d)there is, very regrettably, very poor communication between the parties, and very little interpersonal trust.
In all the circumstances, in my view, equal parenting time is not presently now appropriate.
In this regard, I should make it clear that I have considerable sympathy for the mother’s concerns that she is being, as it were, airbrushed out of [X]’s life. The father’s remark about [X] no longer needing her now he had Ms T was as heartless as it was ill-considered. She has not been included on the enrolment form for the [C] School when she should have been, and in many ways while it is clear that Mr and Mrs H both love [X] dearly, their animus to Ms Stokes has led them into conduct only likely to create the exact sort of difficulties that they might wish to avoid. They will need to pay much closer attention to ensuring that Ms Stokes is appropriately involved in [X]’s life in the future.
Substantial and Significant Time
This is a curious case because the question of equal time has been at the forefront of the dispute between the parties. Given that I have already decided not to order it, much of the rest of the matters in dispute fall away. Both parties agree there should be substantial and significant time spent by [X] with his mother, and there seems to me to be but little between the competing proposals in this regard.
Further Consideration of the Matters in Section 60CC(2)
The orders I have in mind will promote a meaningful relationship on [X]’s part with each of his parents. There is no serious suggestion that he is exposed to physical or psychological harm in the company of either parent.
Section 60CC(3)(a)
Unfortunately, owing to Dr Harvey’s failure to put the relevant question, there is no direct evidence as to the child’s views. I note, however, that [X] appears to be happy living with his father, stepmother and step-sibling, but that he also appears to enjoy time with his mother and [Z].
Section 60CC(3)(b) – The Nature of the Relationship of a Child with his Parents and Other Persons
It is clear that [X] has a close and loving relationship with both of his parents and with Ms T, and his half-siblings.
On the evidence, it also seems clear that he has a close and loving relationship with his paternal grandparents. The position in respect of maternal grandparents is less clear (see paragraph 77 mother’s affidavit filed 12 November 2009) but he has close relationships with a number of his mother’s family (paragraph 76, same affidavit).
Subsection 60CC(3)(c) – The Willingness and Ability of each Parent to Facilitate and Encourage a Relationship been the Child and the Other Parent
Here both camps are open to criticism. However, bearing in mind the concessions made by all three of the primary witnesses as to their past inappropriate behaviour, and drawing upon the mother’s commendable desire to improve communication and the possibility of benefits of family counselling, I suspect that, once the air has cleared after this proceeding, this issue will improve.
Subsection 60CC(3)(d) – The likely Effects of any Change
The orders I make will involve no change to the child’s current regime.
Subsection 60CC(3)(e) – The Practical Difficulty and Expense of a Child Spending Time Communicating with The Parent
This is of no relevance.
Subsection 60CC(3)(f) – The Capacity of Parents and Other Persons to Provide for the Child’s Needs
There are no concerns as to either parent’s capacity to care for [X]’s needs, save the slight concern that lingers over the mother’s capacity to take him punctually to school and other events.
Subsection 60CC(3)(g) – The Maturity, Sex, Lifestyle and Background of the Child
At this stage, and in the light of remarks already made, this subparagraph adds nothing.
Subsection 60CC(3)(j) and (k)
These are no longer relevant, given that I have dealt with the incident at Easter.
Subsection 60CC(3)(m) – Making Orders that are Least Likely to Give Rise to Litigation
I cannot be certain that any orders I make will necessarily foment or reduce the likelihood of litigation, but they are, in any event, the orders that I think are in [X]’s best interests.
Conclusion
This is an unusual case. The parties all impress me as being thoroughly decent individuals who have [X]’s best interests sincerely at heart. The real problem has been the interrelationship between Mr and Mrs H on the one side and their family, and Ms Stokes on the other side. She has clearly been disempowered by the emotional difficulties that followed both her separation from Mr Herman and, more particularly, later from Mr S. It is most regrettable that this situation should obtain, and in my view the parties ought to be ordered to undergo family counselling in an endeavour to improve their interpersonal relationships.
If [X] continues to improve and settle, and if the parties can get over their differences, then I suspect they will move to increasing [X]’s time with his mother without the necessity for the Court to make further orders.
Nonetheless, and for the reasons given, I am of the clear view that the orders I have indicated are those which are in [X]’s best interests.
I will request the parties to draw up minutes to give effect to these Reasons for Judgment.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 3 February 2010
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