Kavanagh and Kavanagh

[2009] FamCA 1262

FAMILY COURT OF AUSTRALIA

KAVANAGH & KAVANAGH [2009] FamCA 1262

FAMILY COURT – CHILDREN – 10 year old daughter – Time with parents – Long-standing dispute – Agreement to majority final terms with determination on residual time

APPLICANT: Ms Kavanagh

RESPONDENT: Mr Kavanagh

INDEPENDENT CHILDREN’S LAWYER: Damien Greer

FILE NUMBER: BRC 4406 of 2007

DATE DELIVERED: 10 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 10 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. Wright

SOLICITOR FOR THE APPLICANT: Women’s Legal Service Inc

THE RESPONDENT: Appeared in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr D Greer from Herbert Geer, Solicitors

ORDERS

IT IS ORDERED

1. That orders be made in accordance with the minutes of proposed orders sealed and attached hereto.

2. That pursuant to s65DA(2) and s62B, 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.

BETWEEN

MS KAVANAGH

(Applicant)

AND

MR KAVANAGH

(Respondent)

AND

DAMIEN BERNARD GREER

(Independent Children’s Lawyer)

IT IS ORDERED

1. That all previous Orders and Parenting Plans be discharged.

2. That the following parenting orders shall apply for the child, C (born … May 1999) (“the child”) unless the Father and Mother agree to alter all or some of them either temporarily or permanently.

Parental responsibility

1. That except as otherwise stated, the Father and Mother are to have equal shared parental responsibility for the major long term issues of the children.

2. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision.  They are not, however, required to consult with each other about the daily care of the children.  The types of decisions about which parents are required to inform or consult include but are not limited to changing the name of the child;  relocating the residence of the child so that the existing parenting arrangement becomes impracticable;  changing the school of a child;  a significant medical intervention for a child.

   (a)That the child attend S School commencing in the year 2012.

Exchange of information

1. That the Father and Mother shall keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent in writing within seven days of the change.

2. The parents shall keep the each other informed of the names and addresses of any treating medical or other health practitioners who treat the child in writing within seven days of such attendance.

3. During the time the child is with either parent, that parent shall:

   (a)inform the other parent as soon as reasonable or practicable of any medical condition, significant health issue or illness suffered by the child;

   (b)respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (c)speak of the other parent respectfully;

   (d)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Information authority

1. That this order is authority for the child’s school to give each parent information about the child’s educational progress and other school related activities and to supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the requesting parent’s cost).

2. This authority is order for the child’s medical practitioner to give each parent information about the child’s medical issues (at the requesting parent’s cost).

   (a)This order is authority for the school to allow that the Mother attend at invited activities or usual school events for parents at the school in the event that the Father has informed the Mother by text message or email that he is unable to attend.

   (b)The Father shall inform the Mother of his ability to attend activities referred to in the preceding order not less than 24 hours before commencement of the event.

Living arrangements for the child

1. That the child shall spend time and communicate with the Mother as agreed and failing agreement as follows:

   (a)Each alternate weekend from after school on Friday until before school on Monday; such time to commence Friday, 11 November 2009 and continue until the commencement of the September school holidays in 2010.

   (b)Following the conclusion of the September 2010 school holidays, each alternate weekend from after school on Thursday until before school on Monday.

   (c)In the event that any weekend that the child spends time with the Mother falls on a long weekend, that such time conclude before school on the Tuesday, where the public holiday/pupil free day of such long weekend falls on a Monday or shall commence at the end of school on the Thursday, where the public holiday/pupil free day of such long weekend falls on a Friday.

   (d)This order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school holiday term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences, determined as if the sequence had not been interrupted.

   (e)That both parents shall provide the child with her own bedroom or a bedroom shared with other females other than the Mother.

2. That the child shall live with the Father and Mother for school holiday periods as follows:

   (a)Being the first half of the Easter, June/July and September/October school holidays in odd numbered years with the Mother and in even numbered years with the Father.

   (b)The second half of the Easter, June/July and September/October school holidays in odd numbered years with the Father and in even numbered years with the Mother.

   (c)During the December/January school holidays for alternating weeks commencing the first week in odd numbered years with the Mother and commencing the first week in even numbered years with the Father.

   (d)For the purpose of these orders, the school holiday time shall commence:

   (i)when a parent’s time falls in the first half of the holidays from after school on the last day the school term finishes and conclude at 12:00 pm (noon) on the day calculated to be half of the holidays;

   (ii)when a parent’s time falls in the second half of holidays from 12:00 pm (noon) on the day calculated to represent half of the holidays and contact shall end at 8:30 am on the day the school term recommences;

   (iii)school holidays shall be deemed to commence at the close of school on the day the school term finishes and conclude at 8:30 am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one-half of the school holiday period and if there is an uneven number of nights, the Father shall retain the additional night.

3. That notwithstanding any previous orders, the child shall spend time with their parents on special occasions as follows:

   (a)For Christmas Day from 5:00 pm Christmas Eve until 1:00 pm Christmas Day in odd numbered years with their Mother and in even numbered years with their Father.

   (b)From 1:00 pm Christmas Day until 11:00 am Boxing Day in odd numbered years with their Father and in even numbered years with their Mother.

   (c)On the birthday of the child and Mother and the child’s sister (with the parent they are not living with on that day):

   (i)If a school day, from after school until 7:00 pm;

   (ii)If a non-school day, from 1:00 pm until 7:00 pm;

   with that parent to be responsible to collect and return the child.

   (d)With the Father on the Father’s Day weekend and in the event that this is a non-contact weekend, the Father shall forego the following weekend of contact.

   (e)With the Mother on the Mother’s Day weekend and if that is a non-contact weekend, the Mother shall forego the following weekend of contact.

4. The child shall be permitted to communicate with their parents on the telephone at such reasonable times as the child requests and that parent shall facilitate the call.

5. A parent may telephone the child between 6:00 pm and 7:00 pm on Tuesdays and Thursdays (or another day as agreed between the parties) and in relation to such communication each parent shall:

   (a)ensure that the child is available to receive the telephone call;

   (b)arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;

   (c)ensure that the child has privacy during the conversation.

6. That the child lives with the Father at all other times not otherwise specified in these Orders.

Collection and delivery

1. That except as otherwise ordered, the changeover point for the transition for the child between the households shall be at the child’s school.

2. During school holiday collection shall take place:

   (a)At the commencement of contact, at the child’s school or at the Father’s home with the Father delivering the child to the Mother’s home (as the case may be);

   (b)At the conclusion of contact, at the Mother’s home with the Father collecting the child from the Mother’s home or from the child’s school (as the case may be);

Changeover

1. Unless stated otherwise, for the purposed of these Orders all handovers shall take place at 12.00 pm (noon).

Future dispute resolution

1. That in the event the parties are unable to agree about a decision to be made in the exercise of their equal shared parental responsibility and or about the interpretation, implementation or enforcement of these orders, then the parent shall submit to the following dispute resolution process prior to any application being filed:

   (a)The parents will consult with a family dispute resolution practitioner to assist with resolving dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child.

   (b)The parents will pay the costs of the Family Dispute Resolution Practitioner equally.

   (c)In the event the parents cannot agree on which Family Dispute Resolution Practitioner to attend upon, the Father shall nominate 3 practitioners and advise in writing details of their fees, experience and availability.

   (d)The Mother then shall choose one of the listed practitioners within 7 days of receipt of the list.

   (e)If the Mother fails to choose, then the Father may choose.

2. That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.

3. That if there are extant parenting issues remaining in dispute after the process referred to in Order 19 each party is at liberty to file an Application particularising alternate Orders sought.

4. That the Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4406 of 2007

MS KAVANAGH

Applicant

And

MR KAVANAGH

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. As I have had occasion to say once before, for better or for worse, you people have drawn me on my last day in Court and that encourages me to break a few of the rules in what I have to say to you.

2. One of the reasons that I think people have a use-by date in this job is because you are dealing with very, very difficult situations, with people who find themselves in unpleasant places.  And perhaps the two of you are, unfortunately, a classic example of how difficult it can be to manage the break-up of a relationship.  As I reflect on the history in this matter, which, I understand, included a 19-day trial before Barry J, you have probably endured everything that is hard about a separation and, unfortunately, there has been a great deal of damage and hurt along that pathway.  Not surprisingly, as a consequence of that history, there is a significant residual level of mistrust which is not going to disappear.

3. In this case, sadly, I hear of breakdowns in the relationship between some of the children and their parents. 

4. In a sense, the child is your last responsibility and you need to try to get it right for her.  You need to try to salvage as much from the difficult past as is possible.  The wonderful and surprising thing is that, at this stage, the child is presenting as a delightful young girl, as you have both described her to me.  Although you have your personal differences, I understand that you both, in different ways, want to try to do what is best by your daughter and try to help her navigate a pathway through the remaining years of her childhood and teenage years, so that she might emerge as a decent, happy, contented person with intact relations with each of her parents.

5. Of course, I only receive a snapshot of these things, and I can only judge matters as best I can on the limited material and the short grabs that I have with you from time to time.  I need to record that, when I started on this case, there was not a great deal of cause for optimism.  However, from that fairly bleak point at which we started together, at least there are some very positive signs.

6. What I want to say, firstly, to the father, is that I accept what you say, that your daughter is very happy and very well cared for, and that is a credit to you, in very difficult circumstances.  You have been juggling the challenges of this disintegrating relationship, juggling the challenges of the need to support your children and your child and your work commitments, and navigating through this very, very challenging period when you remain before the Courts years after separation.  It is a great credit to you that your daughter does present the way she does. 

7. What is perhaps an even greater credit to you is that she has a very positive relationship with her mother.  I understand that you have been confronted with challenges, and challenges to your position as the father of this child, challenges to you directly, as you perceived it, from the mother.  To your credit, you have spared your daughter from many of the ingredients of that dispute so that she can now look forward to seeing her mother.  She can look forward to her relationship with her mother.

8. In my view, the greatest tribute I can pay to any parent in a separated relationship is the fact that they were able to foster a positive, healthy relationship between their child and the other parent, regardless of their personal views.  What 19 years has told me is that children are likely to reach their full potential and have contented and happy childhoods and sound adult lives if they are able to have a sound relationship with each of their parents.

9. As I have said many times, no parent that I have encountered in 19 years is perfect.  No one has all the answers.  But most of us have something to offer our children.  And so the child has enjoyed the benefit of what her father has had to offer as her primary carer in recent years, and she is now starting to enjoy a fuller relationship with her mother.  If that continues as at the present to be a positive experience for the child, then hopefully you will be sending your daughter out into the big world as a sound, capable, young woman who is going to be able to meet the challenges ahead of her.

10. More particularly, I commend you, Mr Kavanagh, for being able to agree to arrangements from time to time, including today, when I respect that you have had reservations and I respect the fact that they are based on reality and on your experience and they are not based on vindictiveness.  The fact that you have been able to give ground has been vital in moving into this next, more positive stage of the child’s relationship with her mother, and that is not an easy thing to do, particularly for a man who was subjected to the attacks that you have been subjected to.

11. I would now like to say to the mother that I appreciate that she has also lost much through this most unfortunate conflict that has continued inside and outside the Courts.  She has paid a very heavy price, so that for an extended period of time her relationship with her daughter was extremely limited.  That must have been very, very difficult for the mother to cope with.  One can only begin to imagine how difficult it would be to be separated from a loved child and to only be able to see them in the confines of supervised arrangements and the like. 

12. The evidence that I have before me suggests that the mother has had not only to deal with the challenges that the father has had to deal with, she has had to deal with her own personal challenges, major health challenges.  What has confronted the mother in the years since separation might bring many of us to our knees.  But the mother has held on, held in there, for the sake of her daughter.

13. Again, on the material that I have read, I need to record that the mother has, on the face of it, made some mistakes and sometimes not helped her own cause.  However, from a very difficult starting point, she has in more recent times appeared to manage her concerns, manage her apprehensions, so that the child reports very positively about her time with her mother.  She is deriving benefit from her time with her mother and, happily, to this stage, that is at no cost to the quality of the child’s relationship with her father, and that is the acid test.

14. Whether it is fair or not, the reality for the mother has become now that the extent of her relationship with her daughter, a relationship she treasures and wants to build upon, ironically, depends upon the quality of the child’s ongoing relationship with her father.  If the mother can do in the future what she appears to have done in recent times and enjoy her relationship with her daughter without seeing the need to share with the child her expressions of concern about the father or, in a more sinister way, undermine the relationship with the father, then that is going to be not only advantageous in her desire to build on her relationship with the child but, much more importantly than all of that, such an outcome is going to enable the child to have the best chance of having healthy, happy relations with each of her parents and, in turn, the best chance of blossoming into the young woman that I am sure you both hope she will.

15. I commend the mother for the concessions she has made.  You have each provided to me the foundation for what, I hope, for your sake and particularly for the child’s sake, can be a more certain, more positive future.  The biggest message that comes through this whole report is paragraph 39, a one and a half line paragraph in the report of Mr L, and it should be in neon lights to each of you, and that is:  “It remains very clear to me that [the child] continues to feel caught up in her parents’ dispute and she is getting sick and tired of it.”

16. The child is running out of steam.  She is at that stage where, if you two do not get it right, the child is going to run out of reserves and very unpleasant things might happen.  She can reject one parent or the other;  she can internalise and start to have difficulties in her relations with her peers and/or with boys as she gets older.  There are all sorts of unpleasant prospects.

1. I see very positive signs for her in what has happened in the last three months.  I see very positive signs in the vast things that you have agreed to.  I fully respect both points of view about the areas you are in disagreement about today.  I understand why the mother would like to have equal time and shared care.  It is entirely natural and it is consistent with what the Family Law Act says we should all work towards.  I understand the father’s reservation.  He has come from a hard place.  He has made concessions.  He has probably made concessions at a greater pace than he is comfortable with, and he is saying, “I’ve given a mile.  Don’t extend it beyond what I’m comfortable [the child] can cope with.” 

2. Whilst I fully appreciate the mother’s ambitions to have more time with her daughter, the reality for the mother, in addition to continuing to make sure the child has a healthy relationship with her father, is that she needs to work within a framework which the father is not resistant to.  He is not going to be entirely comfortable, in any event, to proceed at that pace, but if the father feels unable to support these arrangements, then they will be more likely to fail.  If they fail, that fails the child.

3. What I have to try to do is find that balance between the legitimate aspirations of each of the parents and come up with what I think is the best outcome for the child.  Again, I commend each of you and, in this regard, particularly the mother.  If the mother was determined to press on regardless of what the child says in paragraph 39, and regardless of the best interests of all concerned, she would have said, “I want a trial.”  But she did not.  She said, “I’m happy for this to be brought to an end today”, which is a demonstration to me of her bona fides and of her understanding of the importance, for the child’s sake, of trying to bring this to an end.  Having done so, of course, she now passes to me the responsibility of making that final decision, and I hope she will respect it, whatever the outcome might be. 

4. The parameters are that the father wants the situation that has been in place since September to become the permanent regime.  The mother wants the Court to consider making orders which would move towards shared care and equal time.  In making a decision on those parameters, I must have regard to the history.  I do have regard to the reservations and concerns identified not only by the father, but also by the Independent Children’s Lawyer, and I should have regard to the contents of the reports of Dr F and Mr L.  I do accept there is a legitimacy to the father’s proposition that we have come a long way in a short time.

5. The child is coping with the current arrangements.  She seems happy with the current arrangements and, as I interpret what she says, she would like them to remain. 

6. I also observe upon the reality that the child is approaching puberty and that, as she does so, her relationship with her mother and her older sister will assume greater importance. 

7. I take the view that there is a need to consolidate on the gains that have been made and, for those reasons, and to provide stability and predictability and the maintenance of a system that is working, I intend to leave in place the current regime of alternate weekends and half school holidays.

8. However, I am mindful of my obligations also to properly consider the need for, and the benefits of a child spending substantial or significant time with each of her parents.  I propose to put in place an arrangement which will facilitate some increase of the time the child spends with her mother in the future, but it will be much more modest and at a much slower pace than the mother might otherwise have hoped for.

9. I believe there is a need to leave the current arrangements in place for a period of 12 months, and that after the September school holiday periods next year, the regime be altered so as to enable the child to spend alternate weekends with her mother, commencing on the Thursday evening rather than the Friday evening. 

10. Of course, all of these considerations are a matter ultimately, hopefully, for the parties.  Future arrangements in the longer term are going to be matters for the parties to monitor and expand upon, or to develop or modify.  Hopefully, one day that can be done casually by agreement - certainly without the need to come back here - but in the absence of agreement, through the other dispute resolution vehicles.

11. I am satisfied that that modest compromise finds the balance between the all important need for stability, but also gives the child and her mother something to aim towards and build upon.  Beyond that point, sooner or later this is, of course, going to be a matter for the family and for the child. 

12. I can see no harm whatsoever in an order which enables the child to spend some time with her older sister on her birthday, and I can only see some positive benefits from that arrangement.  I propose to adopt the mother’s proposal on that point.  I respect what the father says, that an order should not be necessary, but I need to have regard to the history and the reality that, whilst ground has been made, there are still residual difficulties in communication.  I just think that is a small order.  If that is put in place, it facilitates what should otherwise be an appropriate arrangement, anyway, enabling sisters to spend some time together.  12(c) will be, “on the birthday of the child and the mother and [the child’s sister]”. 

13. Otherwise, I will make orders in terms of the minutes of the proposed orders, as I say, save that as and from the September school holidays 2010, the “each alternate weekend” will be from Thursday after school.  Otherwise, I make orders in terms of the draft.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: