KAVAN & HAWKINS

[2014] FamCA 1212

FAMILY COURT OF AUSTRALIA

KAVAN & HAWKINS [2014] FamCA 1212

FAMILY LAW – PARENTING – children will live primarily with their mother and the parents will have equal shared parental responsibility – Father to pay for family report.

APPLICANT: Ms Kavan

RESPONDENT: Mr Hawkins

FILE NUMBER: CAC 202 of 2014

DATE DELIVERED: 28 February 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 28 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Walsh & Blair Lawyers

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT: Farrell Lusher

Orders

1. I affirm the orders made previously about the children will live primarily with their mother and the parents will have equal shared parental responsibility.

2. The children will spend time with their father on each alternate weekend commencing on Saturday 8 March 2014 commencing at 9.45am and ending at 5.30pm on Sunday.

3. The children will spend time with their father from after school from 3pm until 5.30pm on Thursdays, unless the father indicates to the mother by the preceding Friday that he is unable to have the children with him on the Thursday in which case the same arrangement will apply for Tuesday. 

4. The parents are at liberty to vary these arrangements in the interests of the children as they see fit, provided they both agree.

5. a.        The children will be delivered by the mother to the father at the commencement of the time that the children are to spend with the father and returned by the father to the mother at the end of the time the children are to spend with the father. 

   b.In each case, unless the parents otherwise agree in advance, neither parent will get out of his or her car when delivering the children to the other parent.  Each of the parents will maintain a reasonable distance between them during the period of the handover.

   c.Each of the parents will encourage the children to recognise that the other parent loves them and wants to spend time with them and that they will enjoy the time that they spend with the other parent. 

6. The children will speak with their father each Monday and Thursday between 5pm and 6pm with their father to initiate such telephone call and the mother to facilitate the children answering the phone.

7. Nothing in these orders will prevent the parents from agreeing that the children will spend time with the other parent different from these arrangements or for longer periods.

8. a.        During the school holidays at or about the time of these the children will spend six days with their father who will predominately spend that time with his parents at K Town. 

   b.During the time the children are with their father the father will ensure that he is present predominately during the time the children are there and in addition, will not leave the children unsupervised except by a responsible adult for very short periods during the whole of the time the children are with him.

9. On … 2014, which is B’s birthday she will spend a period of two hours with her father at a time to be agreed between the parents. 

10. In preparation for the hearing of this matter Dr J is appointed as a Single Expert for the purposes of the preparation of a report about the children and their relationship with their parents in accordance with Terms of Reference to be submitted to me by the parties for settlement in chambers on or before 4pm on 7 March 2014.

11. It is noted and the father will pay Dr J’s fees for consultation with the parties and preparation of the report. 

12. Upon provision of the report it will be released to the parties and a further date will be set for final directions for hearing which at this stage is likely to occur on 20 and 23 June 2014. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 202 of 2014

Ms Kavan

Applicant

And

Mr Hawkins

Respondent

REASONS FOR JUDGMENT  

1. In this matter on 19 February 2014 I made final orders by consent which were that the children would live with their mother and that the parties would have equal shared parental responsibility to the children.  The proceedings before me today relate to interim proceedings prior to this matter coming on for hearing a little later in the year.  Before the matter is finally dealt with by the Court it is agreed that there will be a report produced by Dr J and that this report will include in accordance with her normal practice a home visit, so there will be some on-the-spot observation of what the children are doing and where they are living at the time.

2. The dispute between the parties really relates to the relatively small period between now at the end of February and effectively the end of June, so that the orders that I am being asked to put into place are not necessarily the final orders and represent an opportunity in some respects to see how arrangements that are presently of some concern to at least the mother, if not the father, are going to be able to work in practice.  This is not to suggest that the children should be regarded as guinea pigs or experimental or that I should experiment with their best interests, but it does mean that there will be an opportunity to assess the nature of the time the children have spent with their father in the final hearing if it becomes necessary.

3. In practical terms because I, with the agreement of both parents, had made an order that there be equal shared parental responsibility I should consider whether I should order equal time for the children with their parents or substantial and significant time.  In these circumstances on an interim basis, given the nature of the relationship between the parties, however that may be categorised, and given that the parties have consented and agreed to the proposition the children will live principally with their mother, such an order would not be an appropriate order.

4. The orders the father seeks in essence are these: that the children would spend from after school on Friday on every second weekend until 5pm on Sunday and that they spend one half of the school holidays with him.  His proposal is that the pick-up point on the Friday would be the school.  This he asserts would not bring him into contact with the mother.  He wants to be able to return the children direct to the mother on the Sunday. 

5. The mother says that in the meantime, until the dust settles and until the parties can rebuild some of the trust that they presumably previously held, the children should spend every second weekend with their father without any overnight time from the Saturday morning until the Saturday afternoon and from the Sunday morning until the Sunday afternoon; that the handovers should take place at the D Town contact centre; and that in addition the children should spend time with their father from after school on Thursdays until 5.30pm. 

6. The father expresses some concern about the Thursday evening because this coincides with an arrangement he has in relation to his sport.  The mother says she cannot do Wednesdays because she has some other commitment on that day.  The mother also says that Tuesdays is really too close to the other time the father is spending with the children and in any event and would not serve any useful purpose.  I will return to that matter in due course.

7. The evidence before the Court was identified by each of the lawyers on behalf of the parties at the beginning of the proceedings and notwithstanding the confinement of the issues in this way I granted leave to Mr Naumann, on behalf of the mother, to call some oral evidence in relation to one of the issues before the Court.

8. The matters in dispute between the parties have to some extent refined themselves in the short time it has been before this Court.  There is no doubt that the mother asserts in her evidence that in the past the father has been less than committed to spending time with the children even when the parties were living together.  Notwithstanding that, she was apparently prepared to leave the children with him for a period when she was in M Town and while there is some dispute about the length of that period, it was no less than four days.  It was also common ground that during this period, notwithstanding the mother’s assertion that the father had little interest in spending time with the children, he had spent a number of weekends with the children at K Town on the South Coast of New South Wales.  The children spent time with the father’s parents as well.  It is also common ground that during the period post-separation for a time at least, the mother attended all times when the children spent time with their father and there is no reference in any of the affidavits filed by her, about any incident which occurred during those times or of any conduct on the part of the father which may have caused her concern about anything that happened.

9. It appears from the father’s most recent material that the children enjoy their time with him and indeed the mother does not suggest to the contrary.  She says in her affidavit that she is sure that the father loves the children.  It seems in practical terms we are going through a period of adjustment and it is necessary for the parties to find a way of concentrating on what is in the best interests of the children rather than simply perhaps rehashing things that happened in the past or perhaps allowing personal feelings to intrude over what might be the proper attention and affection that the children might reasonably expect from each parent. 

10. In this regard the Act prescribes that any orders I make must have as a paramount consideration the best interests of the children.  In determining those best interests there are a number of factors set out under the Act which I am obliged to take into account.  I will indicate briefly those that I consider to be important for these purposes.

11. The first and primary purpose, if I can put it in those terms, is that the children should be safe.  In terms of their safety, it is crucial that the children should not be subjected to any abuse or physical violence or be in the presence of any of those things occurring.  Now, interestingly in this matter there is no assertion apart from matters related in a generalised form by the mother in her affidavit in the first instance, which I find unhelpful, and in relation to the so-called incident at the N Lake where the children have observed anything in the nature of violence between their parents.  They may have observed such violence in the past, but I am obliged to operate on the evidence, not on what might have been the case or what someone might have thought would have been a good idea to put into an affidavit if, in fact, they had got around to it.

12. In this situation, I am not satisfied that there are any reasonable grounds for saying that if the children were to spend time with the father, that they would in any way be likely to suffer from anything that the father might do to them.  However, it is not just the case of what the father might do, but what he might not do and the mother’s counsel correctly draws my attention to the complaint of the mother (in somewhat unsatisfactory form), that on one occasion while she was away for some period of four days plus, that it was reported to her, on her return, that the children had been left alone for a time while the father went to the shop to get the newspapers or some such thing and that he acknowledged that in a conversation with her subsequently.  It is reasonable that the mother should be concerned that the children are adequately supervised, given their tender age, and it is also reasonable in that context that I should impose orders which I am told the father would accept that he would spend time with the children when they are with him and the children would not be left alone, except for very short periods in the presence of a responsible adult.  Those seem to be practical orders which should be put in place and which may operate as building bricks towards the development of the trust that should exist between the parents and the acknowledgement by each of them that the children will benefit from the fact that they can have a loving and trusting relationship with the other parent.

13. Another of the considerations that I am to take into account - which I am happy to say both parents agree with – is that it will be a benefit to the children to have a meaningful relationship with both of their parents.  That having been said I do not need to expand on that in this matter.

14. The other factors I am to take into account in many cases are irrelevant in these circumstances, particularly as this is an interim matter.  For example, it may well be the children do have a view about the time they spend with each of their parents.  But they are very young and their views are not at this point recorded.  They may be by Dr J.  But they may not be as well, given their age and their maturity and the circumstances in which they find themselves.  It seems clear from the evidence of both parties, as reflected in the affidavits filed so far, the children appear to enjoy the time they spend with each of their parents and this is not in dispute before me.  I accept therefore that the wishes or views of the children would include the fact that they would want to spend time with each of their parents. 

15. The relationship of the children with each of their parents seems to be summarised in this way:  there is no argument from the father about the nature of the relationship of the children with their mother and it is to his credit that is so, and it is to her credit that is his concession.  In relation to the father, the mother seems to be tentative in providing any endorsement of the relationship between the children and the father although there does not appear on the evidence before me at least to be any basis for suggesting that this would necessarily be the case in the future in this matter and in particular for the time in which interim orders would apply.

16. The mother seems to be trying to say that something should not happen in the future because the father had, in effect, not applied the same direct relationship with the children or had as enthusiastic a relationship with the children as he might; or that he put his work ahead of the children.  At the moment the father is putting his hand up to say he wants to have that relationship with his children.  It may well be that the mother proves right and his past conduct is indicative of the future.  However, that does not affect the nature of the orders that I might make on an interim basis, and it is also equally likely that the father, if I can put it in these terms without being disparaging to him at all, has seen the error of his ways and the importance of the children to him and for him in their lives and therefore that he will in future apply himself appropriately to exercise my obligations as a parent.  This will be not only for his benefit, but for the children’s benefit and for the mother’s benefit, so that she does not then have to bear the total burden of looking after the children.

17. There are factors such as the extent to which either parent has failed to take opportunities to participate in making decisions about the children or to spend time with them or to communicate with the children which each of the parents would urge on me (separately) as being important in a final hearing.  That may or may not be so.  I am yet to be convinced in this matter that the children will not benefit from time with both parents and I am prepared at this stage to give, if I can put it that way, the father the benefit of the doubt that he will in the future apply himself towards spending time with the children appropriately and that the children will benefit from that time.

18. I have noted that the father has continued to provide financial support by paying the mortgage on the house in which the mother is living with the children.  I accept that that has limited his ability to make other financial payments for the children and I do not at this point find myself in a position to make any decision that this in any way represents on the father’s part either responsibility or irresponsibility.  I am, nevertheless, satisfied that the father is, so far as he is reasonably able to do so at the moment, contributing to the financial support of the children, and that may well be an appropriate level of contribution.  I am unable to gauge it effectively at this point.

19. The changes proposed by the father are, essentially, that he spend every second weekend with the children.  This would represent some change to their present arrangements, but not one which, in my opinion, would be likely to impinge upon their welfare, and I note that (with variations) it is the arrangement that is proposed by the mother, in any event.  So this is not a practical problem.

20. There are some practical difficulties about the children spending time with their father, only to the extent that the mother, at this stage, is expressing concerns about her being able to meet with the father for the purposes of handover. I will return to this issue when I talk about the orders in a moment.

21. I am satisfied that both parents have expressed in unequivocal terms that they are satisfied that the other parent has the capacity to look after the children on an interim basis for the periods referred to in the orders proposed by either parent.  It is not a case in which there is any serious question about the capacity of – and in particular, the father – to care for the children.  Except to the extent, if I were to accept the evidence of the mother, and I am not, at this point, doing that, that he does not have the will to apply himself to spending the time and looking after the children appropriately.

22. The children, so far as I am aware, have no Aboriginal heritage and do not invoke the provisions of s 60CC(3)(h).  I am impressed that the father has persisted with his applications in this matter, seeking to exercise his responsibilities as a parent.  I accept that the mother has, to some extent, borne the heat and labour of the day in the past, and has demonstrated her responsibility.  In my opinion, her present attitude is over-protective and over-conservative, or more conservative than it should be, about the time the children might spend with their father.  But that may be, as she suggests, a question of transition.

23. There is an issue about family violence, which is not supported on the evidence before me. I have indicated during the course of addresses from counsel why I have that opinion, and I do not propose to go through that again.  I accept that there are family violence proceedings pending, which should be resolved within the next two or three weeks.  I have no idea what the result of them may be.  I have seen the evidence of the father.  I have not heard the evidence of the mother.  The mother has chosen not to put that evidence before me. I am not in a position to make any finding about it at this point.

24. Finally, this is a situation in which the orders are interim orders.  There will necessarily be final orders at some point, and accordingly, while, as I indicated at the start this is not a situation in which the children should be experimented with, there is no doubt that the orders put in place can serve to see how the parties can adjust to appropriate arrangements, pending a final hearing.

25. That having been said, the practical questions relating to the orders are these. The father suggests that the children be picked up by him on Friday afternoon, and returned on Sunday evening.  The mother suggests it should be a Saturday morning to a Sunday evening.  The father suggests there should be overnight and the mother suggests there should not.

1. I see no reason why there should not be overnight contact for the children with their father at this point.  None of the matters that I have referred to above would indicate that this would in any way impinge upon the children’s welfare, and would operate otherwise than for their best interests.  I know their mother in the past had expressed some worries or concerns about the nature of the accommodation that the father has at present.  Whether or not those concerns were previously validly held, is no longer relevant, because she acknowledged through her counsel today that this was no longer an issue.

2. The question, then, is why Friday to Sunday night, rather than Saturday morning to Sunday night.  There is no logical basis for that.  I am not attracted by the argument of the mother, particularly, that this is a period in which everyone should hop from one foot to the other in some sort of nervous concern about what is to happen on a transitional basis.  On the other hand, these are interim orders and it seems to me to be appropriate that the orders should at least reflect that there are difficulties between the parties, and accordingly, it seems to me the orders for the weekend period should commence on Saturday morning and conclude on Sunday evening, but with the overnight time.

3. So far as the midweek or the off-week time with the children is concerned, it is interesting that in this situation I cannot make any decision about whether either of the parents is being either obstructive or selfish.  The mother suggests Thursdays, and I accept from the evidence that it was a surprise to her – at least in part – that this might have been an inconvenience to the father.  The father, I suspect, will probably believe she suggested Thursday because she knew it was his sports night. 

4. Equally, a suggestion of Wednesday night from the father provoked from the mother a response that she had something else on, on that night.  I have no idea whether that is so.  It seems to me that there are two facets to this.  It appears the father is not involved with sport on every Thursday night.  There is some force to the mother’s argument that Tuesday nights are, in effect, quite close to the normal weekend and so not the best.  It seems to me that the children should spend one evening with their father a week.  Whether that is on the Tuesday or the Thursday should be a matter of notification by the father to the mother in enough time that the children can be organised.  In other words, if the father is unable to have the children on the Monday night, he has them on the Tuesday night.  If the father is able to have the children on the Thursday night, then he has them on the Thursday night.  So that the order, as I draft it, would reflect that Thursday was the default; that Tuesday was the alternate provided notice was given to the mother not later than, say, the Friday before.  Whether that works out is a matter which we can examine when the matter comes on for a final hearing. 

5. The children should be free to ring either parent at any time if they wish to do so.  Each of the parents should facilitate that telephone call.  I recognise their young age.  They are not going to do this as much as they might when they get older, but I think each parent should be encouraged to see that the children do communicate with the other parent on a regular basis. 

6. Those then are the matters that seem to me to be relevant. 

7. So far as the school holidays are concerned, it was suggested by Mr Naumann that the period – while there was consent to the children spending some time with their father and their paternal grandparents, should not exceed four days on the basis that there was some social science research that would indicate the primary attachment theory would be applicable in some way and that this would in some way mandate four days rather than three, five or any other period.  I am unwilling to accept a broad generalised statement of what attachment theory might mean and, more particularly, what it might mean in relation to these children.  And even more specifically, my understanding of attachment theory is that it is particularly in relation to young children, (relates primarily for children who are less than three years of age).  That would exclude these children.

8. Accordingly, it seems to me that the children should spend, and could reasonably spend, a significant period with their father during the school holidays.  There is no guidance that I have from anyone as to why one period might be better than another.  An arbitrary choice of seven days is no different from an arbitrary choice of four days and it seems to me that, in the interests of recognising that each of the parents has some particular axe to grind in this matter, I might choose a time in between and say the children should spend six days with their father during this period.  There is no logic to it and the parents may, if they were sensible, choose to vary that if they wanted to and if they felt it was in the best interests of the children.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 28 February 2014.

Associate: 

Date:  5 March 2015