JANAWAY & JANAWAY

[2020] FCCA 3589

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANAWAY & JANAWAY [2020] FCCA 3589

Catchwords:
FAMILY LAW – Parenting & Property – application in a case filed by the father – parenting arrangements – whether the child’s time with father should be increased – satisfied it would benefit the child to spend increased time with the father - matter transferred to the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MR JANAWAY

Respondent: MS JANAWAY

File Number: DNC 227 of 2018

Judgment of: Judge Young

Hearing date: 11 December 2020

Date of Last Submission: 11 December 2020

Delivered at: Darwin

Delivered on: 11 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Franz

Solicitors for the Respondent: Darwin Family Law

UNTIL FURTHER ORDER

1. That the child X born 2013 spend time with the father as follows:

   (a)commencing 5 February 2021, during school terms, from after school Friday (or Thursday if Friday is a public holiday) until before school the following Wednesday in each alternate week;

   (b)for the first half of the 2021 school holiday periods;

   (c)from 12 pm on 25 December 2020 to 5pm on 1 January 2021;

   (d)from 5pm 8 January 2021 to 5pm 15 January 2021; and

   (e)from 5pm 22 January 2021 to 5pm Wednesday 27 January 2021

2. That notwithstanding any other order, the child shall spend time with each of his parents on days of special significance as follows:

   (a)with his mother on Mother’s Day from 5pm Saturday the day prior, to commencement of school the following Monday;

   (b)with his father on Father’s Day from 5pm Saturday the day prior, to the commencement of school the following Monday;

   (c)with the parent he is not living with, from 3pm on the day of the child’s birthday until 9am the following day (or commencement of school if a school day); and

   (d)for 3 hours on school days and for 7 hours on non-school days with each of his parents on their respective birthdays

3. That the parents continue to engage the child with B Counselors, until such time as Ms A or such other practitioner within that organisation recommends that the child no longer needs to attend, with the parents to alternate in taking the child to his appointments.

4. That each of the parents are permitted to provide Ms A with a copy of the Family Report dated 30 July 2019.

5. That the mother make appointments for the child to see his Paediatrician and she shall notify the father when such appointments have been made and the mother shall take the child to the first appointment and each alternate appointment thereafter, and the father shall take the child to the second appointment and each alternate appointment thereafter.

6. That the parent who is not attending the Paediatrician with the child, shall make arrangements to have a separate appointment with the Paediatrician, proximate to the time the child is to attend.

7. That the parents shall communicate with each other about matters relating to the child by using a Communication App, and each shall subscribe to the said App within 7 days from the date hereof.  In the absence of agreement otherwise, the parties shall use the Our Family Wizard App.

8. The parties shall communicate with each other via the App in a courteous manner and their communication shall only relate to X and shall not include any other matters.

9. That these proceedings are transferred to the Family Court of Australia at Darwin on a date to be fixed by that Court.

IT IS NOTED that Orders 2, 3 and 4 herein were made by consent.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 227 of 2018

MR JANAWAY

Applicant

And

MS JANAWAY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

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 an interim hearing concerning a child, X, who was born 2013.  He is a little more than seven years old.  X, it appears, has some delays in speech and various other things and has been attending a paediatrician.

3. In the absence of expert evidence, I am not really able to form any particular view about the significance of those matters.  I noticed in the family report, which was prepared last year, that the family consultant thought X appeared to be a child of average maturity.  There is nothing to suggest that he has any particular cognitive deficits or delays or anything of the kind. 

4. It is clear, however, that X, at different times, has displayed some troubling behaviour.  Whether that is still the case is not entirely clear, but there has certainly been some evidence of that in the past.  It is also clear from the evidence that X has been exposed to quite serious conflict, between his parents primarily – and perhaps solely, it would appear – verbal conflict. It is clear from X’s comments to the family consultant made in the interview in July 2019 that X is very much aware of his parents’ conflict. Usually that means, for such a young child, that they are juggling some very serious emotional demands if they feel a love and attachment to both parents, which appears to be the case here.

5. I am satisfied that there is material to suggest that X is suffering from the exposure to his parent’s conflict which is, of course, in every case of this kind, a great tragedy.  As the family consultant explains, exposure to parental conflict is harmful for children, and it is harmful in the long term, and it is likely to harm their emotional and psychological development.  That is on the cards for X, unfortunately.

6. The particular matters in dispute today are, first, whether the child’s time with the father should be increased.  Both parents agree that the present arrangement, which sees X spending two nights in each week with his father – Thursday to Saturday in one week; Friday to Saturday in another week – is undesirable and it is disruptive. Both parents agree that there ought to be a block time to minimise the risk of conflict at changeover.  There doesn’t appear to be any order sought about changeover. 

7. Both parents, apparently, are willing to continue with the current changeover arrangements at Suburb C Shopping Centre or school, which presumably is public enough to ensure good behaviour.  The father seeks interim orders that the child spend six nights a fortnight with him and the mother seeks no change in the current time – that is, four nights a fortnight.

8. The family report, prepared in July of last year, contains observations of the interaction between X and his father, and also Ms D, the father’s partner. The observation seemed to indicate that X and his father were close to each other.  X appears securely attached to his father and they clearly enjoyed each other’s company.

9. Curiously, X refused to participate in an observation with his mother.  I was asked to draw inferences from that by counsel for the father but I do not believe there is any inference I can draw from that.  There are a number of possibilities including, as I say, that this child is very aware of the conflict between his parents.  According to the family consultant, at the beginning of her observation of the child the father advised X:

   You need to talk, you need to tell the truth.

   In my view this was quite an inappropriate thing to say to a five year old child, as he was at that stage.

10. The family consultant observed that X responded by ceasing eye contact and diverting his attention to an activity table, and the writer expressed the opinion that X felt a degree of pressure.  So even at the stage of observations and interviews, there were indications that X is subjected to strains and pressures of various kinds, and whether that has played a part in him deciding that he did not want to participate in a subsequent observation with his mother, I do not know, but it is something I suspect.

11. Nevertheless, I do not doubt that X has a close relationship with his mother and is securely attached to his mother. He has lived with his mother all his life, and since the parties separated in 2018, I think it was, X has lived primarily with his mother.  The father makes no particular challenge to that so there doesn’t appear to be any real question that the mother is a suitable and capable caregiver for this young child.

12. Nevertheless, the family consultant was of the view that X wished to spend more time with his father, and would benefit from more time with his father. I consider that, in all of the circumstances, particularly having regard to section 60CC(2)(a) that the benefit to X of a meaningful relationship with his father in this case would be achieved by increasing the time that X spends with his father to five nights a fortnight in a block.

13. I do not propose to go through the individual matters in section 60CC(3) but in the context of this case the matters that I consider relevant I have already mentioned. That time will start on a Friday, generally during term after school, and will extend to Wednesday morning before school, where the changeover will occur. That will start in 2021 – not immediately.

14. One of the other issues to be dealt with was Christmas holidays. It is agreed that there be a week about arrangement.  The father is seeking orders that the week about start on a Monday so it coincides with the time that E spends with the father’s partner, Ms D, who is E’s mother.

15. I am not in favour of a Monday to Monday regime.  I think that it is always best, when there is a changeover, that it starts on a high, so to speak, with the beginning of the weekend. It permits adjustment without necessarily having to worry about school and the like.  I think it is less stressful for children, so I do not propose to do that. The changeover rule, as I say, during the holidays and during the term will be on a Friday.  I also think that that will give X some time to be simply with his father. Some one-on-one time between the two of them, I am sure, would be to X’s benefit.

16. Over Christmas, X’s time with his father will start at 12 pm on 25 December and run for a week.  Ordinarily, that would mean that the changeover would be on the Friday before school starts, on the 29 January 2021 but given that X will have to be back and ready for school, I do consider that a bit more time is required at home, or at his mother’s.  So X’s final week with his father will run from Friday the 22^nd, by my calculation, to Wednesday the 27^th of January.

17. Another issue in dispute was the attendances on the child’s paediatrician.  Both parents seem to agree that it is appropriate that the child attend on the paediatrician, and I am not told how often that is, but it is not really in dispute. 

18. The father complains that he doesn’t want to be there at the same time as the mother.  He says he doesn’t want to go.  He says that, nevertheless, he wants to be able to obtain information, and he proposes that they attend on alternate visits.  The mother says that the father should attend with her.

19. Considering that there is evidence of the child being keenly aware of his parent’s conflict, I think the opportunities for X to observe that ought to be minimised and I do not think it is a good idea for the parents to attend paediatrician appointments together.  However, I think the mother should be permitted to make the paediatrician appointments and she is to advise the father of each appointment, and the appointments are to alternate with the mother attending the first appointment from now, and then after that the father may attend the second appointment.  As I say, the mother is to make the appointments and advise the father.  Both parents are entitled to seek information from a paediatrician and, indeed, any other treating medical or other practitioner dealing with the child.

20. I was also asked to make orders permitting the mother to travel to Turkey with the child in the Christmas holidays 2021.  I declined to do that, because I consider that the international travel arrangements at the moment are highly uncertain. I do not consider the issue is urgent and, in any event, I would like a lot more information, so I do not propose to deal with that.

21. I propose to make an order that the parties use a communication application, and I do not have any particular application in mind.

22. This is a long-running matter with a great deal of conflict.  Both parenting and property issues are in dispute.  The parenting issues concern the child X, who I have just made interim orders about.  The parents are in dispute about X’s best interests; they’re in dispute about medical issues and the mother is seeking sole parental responsibility in relation to medical issues.  She is apparently going to call the paediatrician at the trial if she proposes to prosecute that claim.

23. I am aware that the child attends on or will be attending on other therapy providers, including a psychologist.  So there is the potential for the witness list to expand, I think.  There are also issues about travel. The mother is seeking permission to travel internationally in 2021 and that will also be in issue.  Property is an issue.  The property pool is not great but there is a claim that the father’s mother lent the father a significant sum of money to purchase the former matrimonial home.

24. I have been told that the husband’s mother, in giving her evidence, will not require an interpreter.  Nevertheless, the property issues are not entirely straightforward.  There have been disputes in the past about the valuation of chattels, including gold jewellery. Where that stands, I do not know.

25. Ms Holtham told me that she was not familiar with the property issues in the matter, having dealt only with the parenting issues.  She told me that because there is presently a complaint against Mr Story made by the mother in relation to an aspect of his conduct relating to the gold jewellery that that firm will cease acting for the father after this court event. Therefore she wasn’t able to provide a closely reasoned estimate, but she said four days.

26. Ms Franz was of the view that the matter would take at least four days.  My own assessment is that the matter is likely to take five days, including submissions, and that being the case, and having reference to the protocol between this Court and the Family Court which provides that if a trial is expected to take longer than four days it should be done in the Family Court, I make an order transferring it to the Family Court.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 20 January 2021