Janeiro and Janeiro (No 2)

[2018] FamCA 1154

FAMILY COURT OF AUSTRALIA

JANEIRO & JANEIRO (NO. 2) [2018] FamCA 1154

FAMILY LAW – CHILDREN – Interim Parenting – Best interests – Where orders made that the child spend overnight time with the father.

APPLICANT: Mr Janeiro

RESPONDENT: Ms Janeiro

INDEPENDENT CHILDREN’S LAWYER: Mr Alexander

FILE NUMBER: PAC 4764 of 2015

DATE DELIVERED: 5 December 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 3, 4 & 5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: James Papas Solicitors

COUNSEL FOR THE RESPONDENT: Ms Pitcher

SOLICITOR FOR THE RESPONDENT: CM Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW Parramatta

Orders

1. The current orders with respect to the child’s time with the father are discharged.

PENDING FURTHER ORDER

1. Orders are made in accordance with paragraphs 2 and 3 of the Independent Children’s Lawyer’s proposed interim parentings orders marked Exhibit 14 and attached hereto.

THE COURT FURTHER ORDERS THAT

1. The father do all things required of him to make an urgent appointment with Dr P for the purposes of receiving information in relation to B’s diagnoses, management and treatment including medication and that he comply with treatment directions of Dr P.

2. By consent the parties are to do all things necessary to obtain a full paediatric report in relation to B from Dr P and each party is to pay half of the costs for such report as determined by Dr P and the terms of engagement and the parameters of the report are to be determined by the Independent Children’s Lawyer 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4764 of 2015

MR JANEIRO

Applicant

And

MS JANEIRO

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Over the past three days, there have been parenting and property proceedings heard by way of final hearing before me.  It became apparent in the course of the proceedings that there is insufficient time allocated to complete the property proceedings.  It has been estimated, appropriately I think, one further hearing day is required and the matter will be fixed to be completed before me on 29 March 2019.  In the meantime, that is, over the next almost four months, both parties propose that there be a change to the current parenting arrangements concerning B, the 10 year old only child of the parents.

2. The Independent Children’s Lawyer (“ICL”) proposes a suite of interim orders which provide for the child to move shortly to spending overnight time with his father, that is, from 22 December.  Those proposed orders are consented to by the father as being in the child’s best interest.  The mother also proposes that the child’s time with his father increase but her proposal involves the intermediate step of the child having an additional half day on the Sunday following the each alternate Saturday that he currently spends with his father up until the commencement of school in 2019 and for the overnight time to begin at the commencement of term 1.

3. The background to the matter in very brief compass is that after a reasonably long relationship and marriage, the parties separated while continuing to live in the same home in February 2014 when the child was about three and a half years of age.  The parties then physically separated in May of the following year, 2015, following an incident which originally involved in an apprehended violence order being made against the father for the protection of the mother but, ultimately, that order was not made on a final basis.

4. There are a number of other matters concerning the general circumstances of the child and the parenting of the child which are not in dispute in the proceedings.  They include that when the parties were separated but living within the same home, the mother did not on any occasion leave the child in the care of the father and that throughout the child’s life, he has not ever spent a night away from his home where he lives with his mother and, in fact, continues at the age of 10 to sleep in his mother’s bedroom. 

5. It is also not a matter in dispute that the mother’s position in relation to the child’s time with the father has been extremely cautious and that from time to time, orders have been made generally as a result of either a contested hearing or negotiations.  Rarely have they involved any agreement between the parties except as to very minor matters.  The mother’s position throughout, including right up until the final hearing commenced, was to seek orders that did not provide for B to spend any time with his father overnight.  When the hearing began at the beginning of this week she proposed for the first time only that the child spend time with the father during one day of each alternate weekend.

6. That position did change throughout the proceedings though there have been a couple of formulations.  In each case, there has been a slight increment and the latest proposal of the mother moves to an actual proposal of overnight time which is the most significant change that she has been prepared to make to date. 

7. The tenor of the mother’s evidence is that she has not ever identified a specific risk, unacceptable or otherwise, which she says necessitates that the father have such limited time with the child.  Her position is that because the child suffers from various conditions that he is in some way unable to manage the time with his father.  In particular, even though the mother has articulated for some time that the child should move to having overnight time with the father, she appears to have had great difficulty in accepting that it may be for the benefit of the child for that to happen sooner rather than later.  The arrangement for the child whereby he has only ever spent daytime with the father each alternate weekend is a most unusual arrangement for any child in circumstances where the mother has not identified any risk associated with the child or any incapacity in the father to manage the child.

8. One of the difficulties is that I have not been presented with any evidence expressing a medical opinion about exactly what the needs of the child are and how his presentation relates to the various conditions that he has been diagnosed with.  It suffices to say that in the last few years in the school setting, in particular, the child has demonstrated some very challenging behaviour, so challenging that he was attending a behavioural school for the majority of his time for a year or so but he has now been transitioned back to a mainstream school.

9. However, the expert, Dr Q, who was cross-examined this morning, certainly has experience and expertise to express an opinion in relation to the best arrangement for the child on the basis of that experience and expertise and also various documents available to her.  Today, following quite extensive cross-examination, Dr Q remained quite firm that there was no reason at all why the child should not be spending much more time with his father and that there was no reason at all, in fact, she expressed a number of reasons why it should occur, in her words, sooner rather than later.  As she said, it is time to bite the bullet.

10. Dr Q was not challenged at all about her opinion in relation to the interaction she observed between the child and the father, about the way the father managed the child or about her assessment of the father’s parenting capacity.  In general, she spoke in very good terms about the father.  Dr Q agreed when I asked her a question that she could not see any risks for the child associated with him spending additional time with the father and including, in particular, overnight time.  She did, however, identify a number of risks associated with the child not spending time with the father and was firm and unshaken that the current circumstances for the child which she regarded as quite concerning should not continue.

11. Dr Q was also concerned about a number of features of the mother/child dyad, in particular, what she described as an enmeshment between the two and felt quite firmly that it would assist the child for him to move to overnight time with his father.  She said that in this regard she relied not only on her own observations and assessment but the opinion of other professionals who knew the child well and who had no interest in promoting one position of one parent over the other but were child-focused.  Those professionals included Dr P, the paediatrician to whom Dr Q had spoken and who expressed the view that it could benefit the child to have overnight time as from two years ago and from Dr R, a family therapist who had been engaged to assist the family.  That therapist had unfortunately not been able to progress and provide the level of assistance she had hoped for largely because of difficulties she had in being able to communicate with and have the mother engage with her.

12. In the course of cross-examination the father intriguingly, expressed the view that he did not think that the child was ready for overnight time.  It is not entirely clear why the father expressed that view except it is worth observing that everybody associated with the child to date, other than the experts engaged for the purposes of the hearing, seemed to adopt this position that it was in the child’s interests to move extremely slowly and extremely cautiously, possibly without good cause.  Of course I determine the matter on the basis of what is in the best interests of the child on the basis of all of the evidence. 

13. In that regard, I attach particular weight to the evidence of Dr Q who was actually challenged very little about her final firm opinions that there were a number of risks associated for this child of his age – and because of the history, a pattern of care had gone on for so long – if he were not to spend more time with his father. 

14. I accept the submissions made by the independent children’s lawyer’s counsel that it is not a matter of dispute the factual basis from which it can be inferred that this child is quite isolated. 

15. The child is in, even on the mother’s evidence herself, in a home environment which is highly structured and rigid and it is an environment where the mother interprets the child’s behaviour as deteriorating as being the result of a one-hour increase in the father’s time each two weeks.  Dr Q found that a difficult proposition to accept as did Dr R.  It is interesting that if the mother did have such a level of concern that it was not raised with Dr P at a recent appointment in October.  I agree with the submission of the independent children’s lawyer that it leaves the Court with the alternative that the mother does have a need to exaggerate the negative impact upon the child of contact with the father or indicates that his life is so regulated that indeed one hour per fortnight has had that impact. 

16. That is not a matter that I need to determine today and of course being an interim decision, I must determine what is in the best interests of the child on the undisputed evidence.  I have already referred to the evidence from the parties themselves and also from Dr Q who, as I say, was challenged very little, especially in terms of her actual final conclusions.  There is no doubt and there is no dispute between the parties now that it in the child’s best interests that he starts to spend overnight time with his father and that there is generally an increase in the time that he spends with his father. 

17. Each of the parties acknowledge that there is a benefit to the child in having a meaningful relationship with his father and under the present regime which has been in place for a lengthy period of time, his time with his father is quite limited.  This arrangement does not bring in any of the normal, for want of a better word, aspects of family life such as staying overnight, being able to do things together as a family on an extended period of time.  The parties also must, in acknowledging that it will be of a benefit to B to have overnight and more time with his father, recognise that there is no unacceptable risk in the father’s household that necessitates the child’s time with the father continuing to be so limited.  The only question really to be determined is how quickly this regime begin and that is the matter to be determined. 

18. Of the additional best interests considerations, I will just refer to a couple which are relevant.  First of all, it seems to me that both of the parents have given far too much weight in these proceedings to the views of the child.  I intend to attach no weight to those views except to the extent to which the child indicates that he wants a relationship with both of his parents he enjoys the company of both of his parents and he wants to spend time with each of them.  Otherwise, I disregard the views of the child bearing in mind that he does have a number of diagnoses that bring with them vulnerabilities and also for the reasons given by Dr Q that this child has been given far too much power to express what he wants.  Further the reports of Dr P which are before me indicate that the child has been as a result capable of being quite manipulative but certainly is not in a position to be able to protect himself in that environment through the expression of his views so that is not a matter to which I attach weight. 

19. Probably the most salient of the considerations is the likely impact upon the child of the change in the arrangements.  This seems to be the basis of the mother’s concern and insistence to date that this happens slowly and gradually.  Certainly, as I say, everyone appears to have respected that view.  The problem is it appears to have been given too much weight, in light of what Dr Q has said.  As Dr Q said herself, we are not talking about a three-year old, we’re talking about a 10-year old.  There already has been a very slow introduction to time with his father.  This is a matter where there was supervised time, then unsupervised time, and then a slight increment in unsupervised time.  This is not a matter that has the risks of a father who is unknown to the child. 

20. The father, as Dr Q said – and I agree with the observation has been around.  He had to manage the supervised time.  It has become unsupervised and there is nothing to suggest that from a familiarity and feeling of comfort point of view, that it will be difficult for this child.  The problem about why B has behaved in the way he has, which the mother has consistently seemed to associate with contact with the father, is a matter that as already stated I have insufficient evidence to form a final view.  However, I have to deal with what I have.  The tenor of Dr Q’s evidence is that the child’s vulnerabilities due to his diagnoses do not provide the full explanation.  Her view in relation to the child’s behaviour is that the conflict between the parties has been extremely damaging for the child and issues about parenting style and matters of that kind might provide that explanation. 

21. Dr Q expressed the view and gave some good cogent reasons why it is in the best interests of the child for the overnight time to commence over school holidays which are coming up soon.  These include that some overnight time would be able to be introduced with quite a significant degree of regularity, that is, once a week and that won’t have the same impact if it were introduced during the school term because the child should not be deprived of some weekend time with his mother.  Dr Q also explained and I accept her evidence that in school holidays the child will be more relaxed and that he and the father will be able to be a greater degree of regularity than there would be if it were to be introduced on a once every fortnight basis. 

22. Dr Q felt that once a week was the appropriate time for the overnight time to be introduced.  If this were introduced during school time the child would be, in effect, spending every single weekend during school term with his mother. 

23. The alternate proposal at one stage which appears may have had its genesis from Dr R’s recommendations which has been picked up by the mother is that there be a no small increase in the child’s time with the father for about a month and that then it be a Sunday immediately following each alternate Saturday as a sort of intermediate step prior to the overnight. 

24. I am very concerned that the mother’s proposal will involve four changeovers each for this child by parents who each agree – and it’s not a matter in dispute – have not spoken to one another for four years.  This is despite the extremely concerning matters that Dr Q said in her report which was released in March 2017 which made it absolutely clear that as far as she is concerned, the really significant issue for this child, given his vulnerabilities, was the constant exposure to the hostility between the parents. 

25. It is true that this is not a case that’s characterised by parents who abuse or swear at one another or matters of that ilk in front of the child, but for a child who expressed the view that he wished his parents would come back together – which is obviously not going to happen – to have to tolerate his parents being in the presence of one another without even being able to acknowledge one another civilly, I think that it would be quite detrimental to endure.  This appears to me to be much more about the comfort of the mother than the comfort of the child.

26. Given the very sensible evidence, in my view, from Dr Q about the advantages of introducing the overnight time in the school holidays, and her evidence that she remained firm about that this must happen sooner rather than later, that there’s no need for further caution and that there are far more risks for this child in not increasing his time with his father than the lack of identified risks in increasing it, I am of the view that it is in the best interests of the child for the independent children’s lawyer’s proposal to be adopted and for those orders to be made as contained in exhibit 14. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 December 2018.

Associate: 

Date:  26 March 2019