Irish & Michelle

Case [2009] FamCA 66

FAMILY COURT OF AUSTRALIA

IRISH & MICHELLE [2009] FamCA 66

FAMILY LAW – CHILDREN – Equal shared parental responsibility – With whom a child lives – child’s view – issues of credit – alienation of child from parent

Goode and Goode (2006) FLC 93-286
Newlands and Newlands [2007] FamCA 168
G and C [2006] FamCA 994
Lane & Arthurs [2006] FamCA 87
Parker & Elliott [2003] FamCA 990
Summers and Nathan [2005] FamCA 1406

APPLICANT:

Mr Irish
RESPONDENT: Ms Michelle
FILE NUMBER: HBF 32 of 2006
DATE DELIVERED: 6  February 2009
PLACE DELIVERED: Hobart
PLACE HEARD: Launceston
JUDGMENT OF: Benjamin J
HEARING DATE: 12, 14 & 15 August and 3, 4 and 5 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGuire (August 2008)
Mr McVeity (December 2008)
SOLICITOR FOR THE APPLICANT

Miss Higgins
COUNSEL FOR THE RESPONDENT:

Mr Waterhouse
SOLICITOR FOR THE RESPONDENT

Ms Eaton

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER

 Mr Fitzgerald
SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER Ms Wylie

Orders

  1. The mother and father have equal shared parental responsibility for B born on the … August 1999  and J born on the … October 2001.

  2. The children live with the father except as provided in these orders or as otherwise agreed in writing between the parties.

  3. The children live with the mother as follows:-

    (a)during the Victorian school holiday periods at the end of term 2 and term 3, from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the term.

    (b)in 2009, from the Thursday prior to Easter Sunday until the following Saturday and each alternate year thereafter (with the intent that the children spend part of the school holidays at the end of term 1 with the mother.).

    (c)in 2010, from the Saturday immediately following Easter Sunday until the following Saturday and each alternate year thereafter (with the intent that the children spend half of the school holidays at the end of term 1 with the mother.

    (d)in the event that the either of the children’s birthday fall on a Friday, Saturday or Sunday from Friday to Sunday in Tasmania.

    (e)on the weekend of Mother’s Day from Friday until Sunday in Tasmania with the specific times to be agreed between the parties.

    (f)during the Victorian school term for one weekend per month in Tasmania (the time provided in order 3(d) and (e) are to be regarded as the weekend that month) unless otherwise agreed to coincide with Victorian long weekends wherever possible from Friday evenings to Monday (if a long weekend, Sunday if not a long weekend) with the specific times to be agreed between the parties.

    (g)in 2009 (and each alternate year thereafter) for the first half of the Victorian summer holiday period commencing on the Saturday immediately after the conclusion of the Victorian fourth term with the specific end dates and times to be agreed between the parties.

    (h)in 2010 (and each alternate year thereafter) for the second half of the Victorian summer holiday period with…

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Details
AGLC
Irish & Michelle [2009] FamCA 66
Case
[2009] FamCA 66
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Irish (the applicant father) and Ms Michelle (the respondent mother) regarding the parenting arrangements for their two children, B and J. The dispute involved determining with whom the children would live and the extent of each parent's involvement in their lives, particularly in light of allegations of parental alienation and the children's expressed views. The case was heard by Benjamin J in the Family Court of Australia.

The court was required to determine several key legal issues. These included whether to make orders for equal shared parental responsibility, with whom the children would live, and how the children would spend time with each parent. A significant consideration was the weight to be given to the children's views, particularly B's, and the court's assessment of the creditworthiness of the parties and the evidence presented. The court also had to address the issue of parental alienation and its impact on the children's relationship with their father.

In reaching its decision, the court considered various reports, including a family report and a single expert psychological report, as well as the evidence of an independent psychologist, Ms R. Ms R's evidence detailed a particularly difficult changeover where both children exhibited strong resistance to spending time with their father, employing a repetitive mantra and, in B's case, escalating distress. The court noted that B appeared to be able to switch her emotions on and off, and that J's behaviour was influenced by B. The court also observed that the father maintained a calm demeanour throughout the difficult interaction. The court ultimately found that while the children would live with the father, they would spend substantial time with the mother during school holidays due to geographical limitations and the impracticality of frequent travel. The court also made orders restraining the parties from denigrating each other in the presence of the children and requiring them to facilitate therapy for B to address issues arising from conflict and anxiety.

The court ordered that the mother and father have equal shared parental responsibility for B and J. The children were to live with the father, subject to specific arrangements for the children to live with the mother during various school holiday periods, weekends, and on specific occasions such as birthdays and Mother's Day. The orders also detailed communication arrangements between the children and the mother, financial contributions towards travel costs, and provisions for notification of address changes, significant medical issues, and attendance at school and extracurricular events. The court also ordered that both parties facilitate B's attendance at therapy and share the costs equally.

Orders

Orders of the court

1.

The mother and father have equal shared parental responsibility for B born on the … August 1999 and J born on the … October 2001.

2.

The children live with the father except as provided in these orders or as otherwise agreed in writing between the parties.

3.

The children live with the mother as follows:-

(a) during the Victorian school holiday periods at the end of term 2 and term 3, from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the term.

(b) in 2009, from the Thursday prior to Easter Sunday until the following Saturday and each alternate year thereafter (with the intent that the children spend part of the school holidays at the end of term 1 with the mother.).

(c) in 2010, from the Saturday immediately following Easter Sunday until the following Saturday and each alternate year thereafter (with the intent that the children spend half of the school holidays at the end of term 1 with the mother.

(d) in the event that the either of the children’s birthday fall on a Friday, Saturday or Sunday from Friday to Sunday in Tasmania.

(e) on the weekend of Mother’s Day from Friday until Sunday in Tasmania with the specific times to be agreed between the parties.

(f) during the Victorian school term for one weekend per month in Tasmania (the time provided in order 3(d) and (e) are to be regarded as the weekend that month) unless otherwise agreed to coincide with Victorian long weekends wherever possible from Friday evenings to Monday (if a long weekend, Sunday if not a long weekend) with the specific times to be agreed between the parties.

(g) in 2009 (and each alternate year thereafter) for the first half of the Victorian summer holiday period commencing on the Saturday immediately after the conclusion of the Victorian fourth term with the specific end dates and times to be agreed between the parties.

(h) in 2010 (and each alternate year thereafter) for the second half of the Victorian summer holiday period with the specific end dates and times to be agreed between the parties.

(i) the mother’s time with the children over Easter is to be regarded as the Tasmanian mid term weekend visit for the mother if not occurring in a school holiday period.

(j) such further or alternate times as may be agreed between the parties from time to time.

4.

The children shall live with the father on the weekend of Father’s Day.

5.

The children shall communicate with the mother as follows: -

(a) by the mother telephoning the children each Sunday between the times of 6:30pm and 7:30pm.

(b) by the children telephoning the mother each Wednesday between 6:30pm and 7:30pm.

(c) if the children are living with the father on Christmas Day, Easter Sunday and/or the children’s birthdays, the children shall telephone the mother between 7:00pm-7:30pm on such days.

(d) at all other reasonable times.

6.

The father will be responsible for three quarters of the air travel ticket cost and the mother one quarter of such cost in respect of the children bought to and from Launceston in accordance with orders 3(a) to 3(h).

7.

Each party shall advise the other of any change to their residential address, mobile telephone, email address and a fax number (if applicable) within 7 days thereof.

8.

The parties be and are hereby restrained from denigrating or permitting any other person to denigrate the other parent to or in the presence of the children.

9.

Each party is hereby authorised to contact the children’s school to discuss the children’s progress, welfare and development.

10.

Both the mother and the father shall notify the other of any significant medical or health issue in relation to the children within two hours of such an emergency occurring or otherwise as soon as reasonably practicable.

11.

The parties shall utilise a communication book or email facilities to consult each other in relation to the children.

12.

Both parties are entitled to attend all events involving the children or either of them including: -

(a) sporting functions;

(b) extra curricular activities which allow for parental attendance; and

(c) school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, school fair, school fundraisers, parent and teacher interviews, canteen duties and social functions.

13.

The mother and father will do all acts and things to facilitate B’s attendance upon a therapist for the purpose of receiving therapeutic counselling to assist with the issues arising from the conflict and her anxiety, grief and loss.

(a) the mother and father will share equally any costs associated with the child’s counselling.

(b) the parties will ensure that the child is presented for such counselling as recommended by the counsellor.

14.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

15.

The Independent Children’s Lawyer be discharged upon completion of her obligations arising from these orders being:-

(a) advising the children of the nature of these orders.

(b) provide to B’s therapist a copy of :

(i) these orders;

(ii) the reasons upon which these orders are based;

(ii) the expert report from Mr V;

(iii) the Family Report from Ms F;

16.

All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

17.

This matter be removed from the list of cases requiring determination.

IT IS CERTIFIED

18.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The father lives in Melbourne with his partner Ms K. The mother lives in H with the children. To spend time with the father/mother on and equal basis would be impossible because of the impracticalities of schooling and travel required to achieve this. Similarly for the children to be able to spend substantial time with their father/mother would mean they would have to travel over 8 hours every weekend, or every second weekend, which would be tiring and impractical for the children. Because of the geographical limitations it is more appropriate for the children to spend substantial time during the school holidays with the parent with whom they do not live. THE EVIDENCE There was a family report prepared by a family consultant on 1 May 2007 (“first report”), a memorandum dated 2 November 2007 (“second report”), a further report of the 6 August 2007 (“third report”) and a final report of the 1 of December 2008 (“fourth report”). A single expert psychological report was prepared by Mr V (“the single expert”) and his report dated 30 March 2008 (“the single expert report”) The single expert and the family consultant prepared a joint document called “single expert report of conference of experts” dated 23 July 2007. The Children’s lawyer filed an affidavit by Ms R on 17 July 2008. Attached to her affidavit was a report dated 13 July 2008. Ms R is a practicing Psychologist who has been in full time practice since about 1996. Her qualifications were not in issue. Ms R was initially asked to work with B to assist her working through issues that had developed relating to changeover and her negative feelings towards her father. Ms R was also asked to facilitate a changeover between parents for the children on 27 June 2008. The changeover went badly. The evidence of Ms R was set out in her reports. I repeat some of it:-“I was anticipating that [the mother] would need to stay with the children initially, but she carried their bags into my room, told them where she was putting their jumpers and both children seemed very comfortable about separating. As [the mother] was leaving, she reminded [B] that she had forgotten her list of things to discuss with me (see appendix C to Ms [R’s] affidavit). [The mother] handed the issues list to Ms [R]. Both children said goodbye to their mother and seemed perfectly happy to stay [4]……“That it became obvious that anything one child said, the other child was going to turn it into something bigger and they would just “negatively” feed off each other”.[5]“At precisely 5 to 7, [B] asked what the time was and when I told her she stopped smiling and began to pout. I said then that we would need to pack up, and go and see if their father was there. [B] started, by what could only be described as, mantra or a chant. She kept repeating, at this stage softly “I don’t want to go”, “It’s my decision”, “I don’t have to go”. By the time, we reached the foyer and I let her father in, [B’s] voice had increased in volume. When the father greeted her, she replied with the exact same mantra and so did [J]. [The father] very quietly and gently, asked what the problem was, to which [B] added to her mantra “I hate you”. From this point on, it did not seem to matter what [the father] or anyone else said all anyone got from either child was the same mantra. Initially, the main difference between [B] and [J], was that [B] began shouting it louder and louder and most of the time [J] just kept moving out of reach of his father and quietly saying the same thing. At this point, I sent [B] back to the room and asked her to draw. As soon as we got out of the foyer she settled down and was perfectly calm”.[6][Ms K and S] were standing outside in the cold so I let them in. They sat with [the father] and tried to talk to [J], but he persistently just replied with the mantra. I then took [the father] aside and asked him what he thought we should do. He wanted to try another approach and thought that if we got the children outside, put their bags in the car and locked the building, which I had to do, that the children might begin to communicate more appropriately and perhaps get into the car. I did this, but the moment we stepped outside the building [B] continued to scream continuously and [J] continued the mantra. It didn’t matter who spoke to them or what was said, [J] continued the mantra and [B] screamed. [The father] showed me photographs of the last visit he had with the children, where they were cuddling him, laughing and clearly having a very happy time. He explained that once they got over their first day [B] always settled down and enjoyed herself but that he was concern about [J] because this was the first time he behaved like this. [The father] told them that it was not until [B] was about the same age as [J] that he is now, that he had problems with her at changeover [7]…After some time, I agreed to move my car and quietly return, just in case the problem was that they were escalating behaviours because I was there. As I walked into the car park I saw the children in the car, the car was stopped, and [B] was trying to climb out the window. [J] was distressed and was hitting and kicking [S], who was sitting in the middle. He must have hurt her as she was crying. At this point, I told [the father] that I was going to call their mother as I was not prepared to persevere. However, I took [B] aside first and calmed her down and then [the father] asked her if she could help calm [J]. [The father] pointed out to [B] that this was hard on [J] because she could calm down quickly and he could not. [B] acknowledged that this was correct and that she could just switch her emotions on and off. As part of the calming process, [the father] decided to show the children the photos on his camera from last time. [J] acknowledged that he had a good time and told his father that he had only wanted to come when they were going to Melbourne. [B] on the other hand, looked at a photograph of herself, on her father’s back, with her arms around his neck, laughing, and firstly denied it was a photo of her. Then she said that she had not enjoyed that time and her father had made her pose like that for the photograph. I saw the photograph and it would have been impossible to force her to pose like that. [8][The father], [J] and [B] waked with me to my car so I could get my phone. I phoned [the mother], asked if she would like me to bring the children to her, but she said that she was still at […] and could be there in a few minutes.[9]I told [the father] and the children that [the mother] was on her way would be there in few minutes. [The father] then said; “okay you’re going back with your mother now so how about a hug for me before you go”. [J] ran and jumped into his father’s arms and gave him a great big hug. [The father] then asked [B] who walked up and leaned against him. He smiled, laughed and said; “You’re very good at leaning, how about a proper hug?” and she obliged. At this time both children were settled. At no time did I ever hear [the father] raise his voice or speak harshly to the children. At time one could tell from her voice that [Ms K] was getting a bit frustrated, and each time this happened, [the father] quietened her with either a hand signal or a quiet word.[10]When [the mother] arrived, both children ran to the car without a backward glance and [the mother] said, “So it didn’t go so well?” When the children were in the car I expressed concern about the children’s behaviour and how allowing the children to continue this way might negatively impact on their future behaviour. However, [the mother] seemed unconcerned and informed me that the children never caused her any concern when they were with her."[11][4] Paragraph 1 on pages 2 and 3 of annexure ‘A” of the affidavit of Ms R filed the 17 July 2008.[5] Ibid at paragraph 2 on page 3.[6] Ibid at paragraph 3 on page 3.[7] Ibid at paragraph 4 on pages 3 and 4.[8] Ibid at paragraph 1 on page 4.[9] Ibid at paragraph 2 on page 4.[10] Ibid at paragraph 3 on pages 4 and 6.[11] Ibid at paragraph 1 on page 5.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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