Joyce and Clancy
[2008] FMCAfam 624
•23 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOYCE & CLANCY | [2008] FMCAfam 624 |
| FAMILY LAW – Parenting orders – final application by father for child to spend overnight time – interim orders made for father to spend increased overnight time with child. |
| Family Law Act 1975 |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MR JOYCE |
| Respondent: | MS CLANCY |
| File Number: | PAC 1474 of 2007 |
| Judgment of: | Sexton FM |
| Hearing date: | 22 May 2008 |
| Date of Last Submission: | 22 May 2008 |
| Delivered at: | [Z] |
| Delivered on: | 23 May 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Lee Dalton & Associates |
| Counsel for the Respondent: | Mr D. Day |
| Solicitors for the Respondent: | Campbell, Paton & Taylor |
THE COURT ORDERS THAT:
This matter be adjourned to 9.30 a.m. on the first day of the first circuit in [Z] in 2009.
The father file and serve any Amended Application and the mother file and serve a Response setting out Orders sought by each party on a final basis by the last working day of February 2009.
Pursuant to section 13C of the Family Law Act 1975 each party, within 7 days, contact Mr Tim Edwards at Interrelate to make arrangements to consult with him in relation to establishing an ability to co-parent.
Each party attend all appointments as directed by Mr Edwards in either [Z] or [U] as he directs.
Mr Edwards notify my chambers in the event either party fails to comply with orders (3) and (4).
The father forthwith serve a sealed copy of these Orders on Mr Tim Edwards at Interrelate.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parties have equal shared parental responsibility for the child [A], born in 2006, such order to be suspended until the parties have had four sessions with Mr Tim Edwards, of Interrelate Family Relationships Centre in accordance with these Orders.
Each party have parental responsibility for decisions as to [A]’s day to day care, welfare and development during periods when he is in that party’s care.
[A] live with the mother.
[A] spend time with the father as follows:
(a)From Saturday 24 May 2008 until the last weekend in September 2008:
(i)each Saturday commencing 24 May 2008 from 9 a.m. until 4 p.m.
(ii)each Tuesday from 3p.m. until 5 p.m.
(b)From the first weekend in October 2008 until the last weekend in April 2009
(i)For 2 out of every 3 weekends in every 3 week cycle from Saturday at 9 a.m. until Sunday at 10 a.m commencing the first weekend in October 2008.
(ii)Each Tuesday from 3p.m. (or 4 p.m. if the father is working until 3.30p.m.) until 7 p.m. when the father will bath [A] and give him dinner.
(iii)On Father’s Day from 9 a.m. until 4 p.m.
(iv)On Christmas Day from 10 a.m. until 3 p.m.
(c)From the first full weekend in May 2009 (both Saturday and Sunday falling in that month) until the last full weekend in September 2009
(i)Each alternate weekend from Saturday 9a.m. until 4 p.m. Sunday
(ii)Each Tuesday from 3 p.m until 7 p.m. when the father will bath [A] and give him his dinner.
The parties be permitted to vary these orders by agreement in consultation with Mr Tim Edwards.
For the purposes of changeover:
(a)
The parties have changeover at Interrelate but if closed, at [Z] police station until the parties have completed 4 sessions with
Mr Tim Edwards, and at the end of that period, the parties to have all changeovers at the [X] in [Z], unless another venue is agreed.
(b)Each party attend changeover personally unless an emergency, and in the absence of any other person.
(c)In the event either party will be late by more than 5 minutes, that party to text message the other to advise of the delay.
(d)Each party be positive about the other party in [A]’s presence.
For a period of 12 months, the parties use a communication book in which:
(a)The father must record in relation to [A]:
(i)Any injury suffered;
(ii)Any illness suffered;
(iii)Any medication administered;
(iv)Sleep times;
(v)Food and drink consumed; and
(vi)Unusual behaviour.
(b)The mother must record in relation to [A]:
(i)Any injury suffered;
(ii)Any illness suffered;
(iii)Any change in his diet; and
(iv)Any medication needing to be administered.
[A] will be known as [A] Joyce for all purposes and within 28 days the mother to take all necessary steps to ensure all existing records of whatever kind, specify [A]’s name as [A] Joyce, provided that the mother be permitted to include as another Christian name the name Clancy and the father forthwith do all things to effect this change in [A]’s name if requested by the mother to do so.
The mother advise the father within 28 days details of her residential address and contact details and each party to keep the other informed of any changes in residential and contact details.
Each party be restrained from entering within the boundaries of the premises in which the other party lives, unless invited to enter by that party.
In the event [A] requires urgent medical treatment, the party caring for [A] immediately notify the other party.
The mother be restrained from changing [A]’s place of residence from [Z].
Each party be restrained from:
(a)Making negative or offensive remarks about the other party in front of [A] or in his hearing and ensuring no other person does so; and
(b)Doing or saying anything negative about or to the other party at changeover.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon Mr Waddell on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act, such report to be completed before the adjourned date.
I DIRECT the parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
The Court notes that each party advises he/she will ask the court to withdraw the current complaints and summonses listed before the Local Court next month, as a first step to improving their communication and cooperation.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Joyce & Clancy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ORANGE |
PAC 1474 OF 2007
| MR JOYCE |
Applicant
And
| MS CLANCY |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
I give these reasons orally.
This case concerns parenting arrangements for [A], aged 19 months. The parties have never lived together and ended their relationship only a few weeks after [A] was born.
The parties have an extremely poor relationship, a relationship characterised by high conflict and low trust. Each has had an interim Apprehended Violence Order against the other since January 2007 which, until February this year, prohibited communication between them, but has since been varied to enable mediation to occur. Mediation between the parties earlier this year was unsuccessful. The parties hand [A] from one to the other at changeover at either a contact centre or the police station. They communicate only via their solicitors. The mother has refused to let the father know where she is living. Each expects any direct communication with the other party to result in a complaint to police. Each party's family is locked in conflict with the other. Neither family approaches the other. This includes grandparents. The father's father is currently suing the mother's mother for defamation.
This very young child, [A], is caught in the centre of this toxic emotional environment.
[A] has always lived with the mother. Apart from in his first few weeks of life, he has never lived with his father. [A] had sporadic and limited time with the father until the father initiated these proceedings in early 2007. The mother stopped any contact between [A] and the father for several weeks in February/March 2007. From approximately April 2007 when [A] was six months old, [A] started to spend time with the father almost daily. On 31 May 2007, [A]'s periods of time with the father gradually increased with the consent of each party until [A] was spending four periods of two hours with the father on weekdays and three hours a day on weekend days. In September 2007, the arrangements changed so that [A] was spending three hours, three times a week, and five hours during the day on one weekend day each week with the father. That continues to be the situation. The mother says it is too much for [A]. The father says it is not enough for [A].
On 4 September 2007, I ordered the parties to attend counselling at Interrelate in the hope that the parties could improve their communication and ability to co-parent, but as already noted that process was unsuccessful. The parties had one mediation session when the mother says the father pushed for more time and she felt unsupported. The parties did not undertake counselling to work on their co-parenting skills as envisaged by me when I made the order. That kind of therapy is yet to happen. To his credit, however, the father did complete a course at Interrelate concerning parenting, which he says he found helpful.
[A] is now 19 months of age. The father wants to increase [A]'s time with him to include alternate weekend time from Friday to Sunday and four holiday periods of one week each year. His position was supported by Ms Grom's written report, but Ms Grom's evidence changed significantly when she gave her oral evidence. Ms Grom recommended at the end of her oral evidence that overnight time not commence for some time, but that [A] spend longer during the day with his father. She recommended fewer changeovers given the high level of conflict which exists between the parties. She recommended that holiday time not commence until [A] was well established in overnight weekend time. She was not able to predict when that arrangement might be in [A]'s interests given she could not predict how far the parties would progress in improving their communication.
The mother wants [A]'s time with the father to be reduced to three times a week for periods of two hours at a time during the day time only.
Each party lives in [Z]. The father moved from his parents' home in February this year to live with his new partner, Ms F. The father works full-time at [T] in a position of some responsibility. The mother lives in [Z], and works two days a week at [Y] while studying for her child-care certificate.
[A] attends the [Y] with the mother when she works there on Wednesdays and Fridays, but otherwise is cared for by his mother when not with his father.
Legal principles
The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. Section 60CA of the Act provides that I must regard the best interests of the children as the paramount consideration. To determine [A]’s best interests I must consider the two primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of [A], I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with [A]’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to [A] of having a meaningful relationship with both of his parents and secondly, the need to protect [A] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; that parents should agree about the future parenting of their children.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
Neither party denies that [A] has a good relationship with the other. Ms Grom, the consultant, observed [A] to be comfortable and relaxed with each party when conducting the observations for her report. In her view, [A] has a close attachment to each of his parents, though a primary attachment to his mother, given he has always lived with her. Ms Grom says [A] is still in the attachment phase of development and it is important to ensure his primary attachment is not interfered with while [A] moves through this stage of his development. Each party acknowledges that [A] needs the other parent in his life. On each party's application, [A] will spend regular time with each parent.
I take into account that [A] has formed a close relationship with his father and that that relationship needs to be maintained along with the maintenance of [A]'s primary attachment to his mother.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
This is a significant issue in this case. I find that [A] is not currently being protected from emotional harm by either of his parents.
Each party concedes that they are unable to communicate and unable to work together for [A]'s benefit as parents post-separation have a responsibility to do. As noted, the parties' relationship is very poor and [A] is caught in the middle of his parents' conflict. I find neither party has been able to prioritise [A]'s needs above their own. I do not accept that [A] is not affected by the acrimony between his parents as the father asserts. I accept the mother's evidence that [A] picks up on the tension between his parents and that this is causing him a level of distress.
This is a fact to which I give significant weight in reaching my decision.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
[A] is too young to have these taken into account.
The nature of the relationships between the child and each parent and the child and other persons.
As noted, [A] is primarily attached to his mother but has a relaxed and loving relationship with his father. I find on the evidence of Ms Grom he also loves his paternal grandparents and has a comfortable, relaxed relationship with the father's partner, Ms F.
I take this factor into account.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
The father claims the mother is obstructing his relationship with [A]. In support of his claim he says the mother has been using Clancy as [A]'s family name instead of Joyce, although [A] is named [A] Joyce on his birth certificate. The father says the mother caused him to bring an application to the Court before she would permit him regular time with [A] and that she is now unreasonably resisting [A] spending overnight time with him.
The father says the mother has kept [A] from him altogether at times and has refused to allow him to make up any time when that time has been missed. The father expressed frustration and anxiety about being excluded by the mother from [A]'s life. Ms Grom also raised significant concerns about the mother's attitude to [A] enjoying a strong and happy relationship with his father. Ms Grom says the mother seems unaware of the importance for [A] of having a meaningful relationship with his father, telling her she wanted to live in Queensland as soon as possible and that [A] could have a relationship with his father by talking to him on the phone and spending holidays with him despite [A]'s very young age.
The mother claims to be willing to facilitate [A]'s relationship with the father, but questions whether the time [A] spends with the father is actually spent with him or rather with the father's parents or his girlfriend. The father in response was adamant he is [A]'s carer when [A] is with him and that he always maximises the time with [A].
The mother gave evidence that [A]'s name on his Medicare card was [A] Clancy-Joyce. However, when the Medicare card was produced at the hearing it showed he was recorded as [A] Clancy. I found the mother untruthful on this issue. She did, however, concede that she uses [A] Clancy day to day, not [A] Joyce, for all purposes. I accept that this is what she is doing. I have concerns about the mother's attitude to [A] spending time with his father and having a continuing, strong relationship with him. I find the mother seriously underestimates the importance to [A] in the long-term of knowing and having a loving, strong, supportive relationship with his father. I am critical of the mother for changing [A]'s name without the father's input or consent. I am satisfied, particularly in the circumstances of this case and at this stage of these proceedings, with the highly acrimonious relationship between the parties, that [A] should retain his father's name, particularly as this is the name under which his birth is registered. I will order the mother to change [A]'s records when his name has been recorded as Clancy so that [A] is known as [A] Joyce.
I have concerns about the mother's statement to Ms Grom about moving away from [Z], particularly given [A]'s young age. Were the mother to move to Queensland, I am satisfied [A] would lose his relationship with his father and his paternal family and that this would not be in [A]'s best interests. I propose to restrain the mother from removing [A]'s residence from [Z], at least at this stage.
I give this factor considerable weight in reaching my decision.
The capacity of each parent to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
The father says [A] is not affected by the tension between him and the mother and that because he, the father, ensures the parties do not argue at changeover, [A] is immune from any emotional distress. The mother for her part says [A] is affected by the tension between the parties, which is causing her some concern. The mother acknowledges that [A] picks up on her own stress about the current situation and that this is hard for [A]. The mother says that once or twice a week [A] cries when she puts him into the car to take him to the father.
I am satisfied, as submitted by the mother's counsel, that neither party has protected [A]'s emotional welfare in the manner in which they have managed their relationship since it broke down, and I am critical of each party in this regard. I am satisfied on the evidence before me that each party has taken steps to make the other's life more stressful and difficult than it already is. Each deposes to communications which could have no other purpose than to upset and distress the other party. In my view, pointless, insensitive and at times abusive communications show a sad lack of regard for [A]'s emotional welfare by both parties at different times. Each, I find, has gone out of their way to criticise the other party in a variety of ways and even during the hearing made negative and hurtful remarks about the other when given half an opportunity. I am satisfied each party has demonstrated immaturity and a poor regard for [A]'s emotional health in allowing this situation to continue.
I have additional concerns about the father's capacity to prioritise [A]'s physical and emotional welfare by disregarding the importance of his day to day routine. I find the father pays limited regard to [A]'s routine when he is with his mother and was critical of the mother's efforts to have [A] in a routine. He instructed his solicitor to cross-examine the mother about waking [A] when [A] is asleep at 6 pm changeovers despite the mother explaining that [A] will be completely out of routine if allowed to sleep at that time. There is abundant evidence to say that a young child's predictable routine is of fundamental importance to his healthy development.
I have regard to this evidence and will order that changeover occur earlier to ensure that situation is avoided in the future.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
I do not add anything further in relation to looking at whether each party has fulfilled his or her responsibilities as a parent in the past.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
As I told the parties during the course of the hearing, I find it necessary to be cautious about removing a child of 19 months from his primary attachment for too long or too frequently. I have regard to the contents of Alison Tucker's article provided to the parties at hearing yesterday as to the adverse consequences for a young child if post-separation parenting arrangements are not managed very carefully. I am satisfied it is in [A]'s interests for me to err on the side of caution given his young age and given the high level of conflict in this case.
The practical difficulty and expense of a child spending time with and communicating with a parent
There are no practical difficulties or expense in this case to which I should have regard.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
I have already referred to the interim Apprehended Violence Orders and the fact that each party has agreed to withdraw those applications when the matter returns to the Local Court in June.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
No other matters.
PARENTAL RESPONSIBILITY
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
I find it inappropriate in the circumstances of this case, with such a high level of conflict between the parties and a complete inability of the parties to communicate, to apply the presumption. I have, however, decided to make an order for equal shared parental responsibility as I find it is in [A]'s best interests for the parties to consult about major decisions concerning [A]. However, because this requires a level of cooperation and a capacity and willingness of each party to communicate with each other, this order will not come into force until the parties have had at least four sessions with Mr Tim Edwards.
As I have not applied the presumption, I am not required to consider equal or substantial time in this case.
Conclusion
By way of conclusion, I find each party has a poor opinion of the other party but very clearly loves [A], and I am satisfied each party does want what is best for [A] both in the short and long term. Each party, I believe, does want the situation between them to improve for [A]'s sake, but to date each has been either unable or unwilling to put [A] before the anger and disappointment they have towards each other. It was pleasing to hear each party advise the Court through their legal representatives that they would ask the Local Court next month to dismiss their respective Apprehended Violence Order applications, the mother's being an application by the Police.
I am satisfied that each party made some progress during the course of the hearing and I hope I am not too optimistic when I find that each party gained some insight during the hearing into the potentially extremely damaging consequences of their conflictual and negative relationship on [A]. I urge both parties to read carefully the readily available literature on the consequences for children caught in post-separation conflictual settings. This can result in depression in a child, anxiety in a child, poor academic performance, social problems, and poor ability to form relationships. I have provided the parties' legal representatives with the copies of recent research into this area, which I hope the parties will read and digest.
As noted, I will order the parties to attend counselling with Mr Tim Edwards, a very experienced consultant at Interrelate. The purpose is not to argue about time [A] spends with them but to work on their relationship and their ability to cooperatively parent. I will order the parties to start using a communication book again so that each knows what is happening with [A] when [A] moves between them. That order will be for a period of 12 months unless the parties agree it needs to be extended in consultation with Mr Edwards.
I will halve the number of changeovers between the parties. I have no doubt [A] is adversely affected by the tension, which presently exists between the parties at changeovers. The orders I propose to make are designed to reduce the emotional pressure which is currently on [A].
The matter will be adjourned for about a year. The parties will attend Mr Waddell for a further family report before the matter comes back before the Court.
Ms Grom says that [A] would benefit from some overnight time with the father, though given the high level of conflict which presently exists between the parties and the pressure this puts on [A], she says that overnight time should be delayed until the parties' communication has improved, perhaps when [A]'s about two and a half, and that it should start with one overnight only with the time to extend to two nights only when the communication has improved, and that is if the overnight time is working well. She recommended in the meantime that [A] have a longer day with the father. Ms Dalton for the father submitted that if the mother persists in her negative attitude to the father she will then be rewarded by overnight time being postponed, and that that would be unfair on the father. While I find some merit in Ms Dalton's position, prima facie, the focus of this case must be on [A]'s best interests, not on the father's needs or wishes.
As noted, the parties will immediately make arrangements to consult with Mr Edwards and I am hopeful they now both accept that it is imperative for [A] they do learn to communicate cooperatively and that their conflict and the conflict between their families will ease. I accept that [A] has a good relationship with the father and I accept the mother's evidence that in general [A] is a settled, happy little boy. I have therefore decided to make an order for limited overnight time a bit earlier than proposed by Ms Grom. I have decided some overnight will start in October this year just before [A] turns two. In the meantime [A] will spend Saturdays with his father, as the father chose Saturday over Sunday. Because I have decided to relieve [A] of the stress of moving so frequently between the presently conflictual households, I will reduce the weekday afternoon time to one afternoon a week. I will order Tuesdays, but it will be open to the parties to change that day if Tuesdays proves to be inconvenient to either party. That time will start after the father finishes work and will finish earlier, initially at least, to ensure [A]'s routine at his primary home is maintained.
In relation to changeover, each party is apprehensive about changing from the police station or from Interrelate to a public place, and I understand that apprehension. However, I acknowledge that each party agrees that a police station is not ideal. I have decided to leave the changeover venue as it is at present but that will change when the parties have had a few sessions with Mr Edwards. I am hopeful each party will by then have accepted that things between them must improve for [A]'s sake, and each will take responsibility for ensuring that improvement occurs.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders I am about to make are in [A]'s best interests over the next 12 months or so.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 16 June 2008
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