Keating and Kirkpatrick

[2016] FCCA 1884

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEATING & KIRKPATRICK [2016] FCCA 1884

Catchwords:  
FAMILY LAW – Parenting – interim decision – suspension of father's overnight time – poor behaviour of father – impact upon mother in her parenting of child of fathers’ rights based and disrespectful attitude and behaviour towards her – lack of insight by father to the needs of the child and to support child’s relationship with mother.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR KEATING

Respondent: MS KIRKPATRICK

File Number: SYC 5148 of 2014

Judgment of: Judge Henderson

Hearing date: 27 June 2016

Date of Last Submission: 27 June 2016

Delivered at: Sydney

Delivered on: 27 June 2016

REPRESENTATION

Counsel for the Applicant: Mr Tockar

Solicitors for the Applicant: Gown & Gavel

Counsel for the Respondent: Mr Sansom SC

Solicitors for the Respondent: Goldbrook Family Law

ORDERS

1. The matter is listed on 1 November 2016 at 10am for possible interim hearing following the release of Dr L’s report. 

2. The mother’s application to suspend overnight time be dismissed.

3. By consent, that order 11 made 12 November 2014 as to changeover be varied and for the sake of clarity, the collection of the child X shall occur to and from the ground floor street entrance of their respective premises and the parties shall, after effecting changeover, leave the vicinity promptly.

4. By consent, that the mother is permitted to remove X from the Commonwealth of Australia for the purposes of a family holiday overseas for the maternal grandfather’s 60^th birthday on the following conditions:-

   (a)The trip shall occur between 21 November 2016 and 20 December 2016.

   (b)The trip shall be for no more than fourteen days duration.

   (c)The mother shall provide the father with the dates of the travel, details of accommodation once the trip is booked and details of how the father can communicate with X during the trip, such details to be provided no less than one month prior to the date of departure.

   (d)In the event the trip impacts on the father’s time pursuant to these orders, the mother will provide the father with make up time and for this purpose, the mother will provide the father with two suggested dates for each make up period and the father shall choose one of the two available and communicate that to the mother with 7 days of the mother providing the available dates.

5. By consent, that the parties agree to appoint Dr L as a Court Expert, at their joint expense, to prepare a Report for the Court concerning their child X and to comment upon the factors she considers relevant including those she considers relevant to s.60CC and for this purpose:-

   (a)The parties shall attend upon Dr L as required and cause X to attend when required.

   (b)The Solicitor for the mother will provide a draft letter of instruction in the first instance within 14 days.

   (c)All communication with the Expert to be joint.

   (d)The parties shall be equally responsible for the costs of the Report.

6. By consent, that the father is restrained from discussing these proceedings on Facebook, Instagram or any other social media forum and is restrained from denigrating the mother, or her family, on such forums.

7. By consent, liberty to the ICL to restore upon release of the Report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5148 of 2014

MR KEATING

Applicant

And

MS KIRKPATRICK

Respondent

REASONS FOR JUDGMENT

1. In this matter Mr Sansom Senior Counsel appeared for the mother and Mr Tockar of Counsel or the father. There is an interim application by the mother to suspend/cease overnight time for the party’s child, X born on (omitted) 2012, with her father.

2. For the parties, I read the following material:

   a)The mother’s initiating application in a case, filed 31 March 2016;

   b)Affidavit, filed 18 March 2016

   c)Father’s response to the application in a case, filed 22 June

   d)Affidavit, filed 29 April 2016.

   e)Mother’s exhibit 1, which is a series of Facebook pages with which the father had agreed some, perhaps, he posted, but many were him agreeing with comments about parental alienation, child abuse by mothers who prevent fathers from seeing their children and the like.

3. The interim orders that are currently in place were made after a contested hearing on 12 November 2014.

4. They are that the parents have equal shared parental responsibility for the child; the child was to live with her mother and spend time with her father on a graduating regime of time: week 1, Tuesday from 7.30 to 4.30, Thursday 7.30 to 4.30, and week 2, Tuesdays, Fridays and Sundays for about the same period of time, totalling five times a fortnight.

5. If the father moved closer to where the child was living he could delete the Friday on the second week and have a Sunday and a Saturday. There was no overnight time until after 30 May 2015.

6. Then the child’s time with her father would be overnight Saturday to 9 am Sunday. Friday time was suspended. After three periods of one overnight time, time was to extend to 3 pm Sunday.

7. Upon the child reaching three years of age, the father’s overnight time was to occur each alternate week, from 8 am Saturday to 4 pm Sunday together with the Tuesdays and Thursdays in the other week.

8. Clearly the time the child is spending with her father at age 3 is good quality, regular, consistent time, including overnight time and to which the mother on the evidence, has always adhered to.

9. The mother seeks to cease or suspend the overnight time due to what she says is concerning behaviours of her child which she said have been ongoing since at least November 2015 and set out in paragraph 29 of her affidavit:

   I say since November 2015 there has been no improvement in X’s behaviour. She continues to display clinginess, anxious and unsettled behaviour, and I have observed new habits emerge. By way of an example, she insists on her dummy when her father collects her.

10. Otherwise, the mother says she does not really want it:

    Upon being greeted with X’s distress at changeover, the father does not comfort the child. He ignores us both.

11. The mother says that behaviour upsets the child:

    I have observed a dramatic change in her behaviour upon her return home to my care after spending time with Mr Keating. Generally, she is easy going, placid and happily plays at home with her toys and rarely loses her temper. When she returns home now, she is irritable, she cries, she speaks in a snappish tone, says things like, “Don’t touch me, mummy” or “Go away, mummy”. Minutes later, she wants a cuddle and comfort from me. She refuses to let me out of her sight; insists I carry her even while I’m cooking or needing to go to the bathroom. Otherwise, she will cry. Over the last few months, since January 2016, she has been very distressed, to the point I can hear her screaming as the father drives his car away.

12. Then when the mother sends a message to check on the child the father responds:

    “You are pure evil. You are a terrible, controlling person and you cause any separation anxiety that X has.”

    When she returns to my care I ask her how she is and she really doesn’t respond. When she goes to day care on a day, she doesn’t cry. When she goes to her father’s on a day, she doesn’t cry. It’s when it’s overnight. She will say, “Am I staying over? Who is getting me?”

13. The mother believes the father has tried to encourage the child not to tell her things. For example, she was sick at her father’s:

    It has now been four months since fortnightly sleepovers have commenced, and my concerns about her ongoing behavioural difficulties have led me to form the view she should not spend overnight time with Mr Keating until there has been some urgent family therapy. This is reinforced by my concerns about events which occurred in January 2016 and my knowledge of Mr Keating’s hostile attitude towards me, which I believe X is exposed to.

14. If that be the case X can be exposed to poor behaviour any time of the day.

15. The father says he does not see these behaviours with his child, although he does talk about her being clingy and wanting to be carried even when he is cooking. He says she sleeps through the night. He and his daughter have an excellent relationship, have fun time together, and there should be no decrease in his time. In fact, in his interim application he sought an increase. I will not be entertaining that application today.

16. This is an interim hearing and I cannot make findings of fact. I accept what the mother says about her daughter’s behaviour at her home. I accept what the father says about his daughter’s behaviour at his home. This is not a case about the father’s capacity to care for his child; it is his daughter’s capacity to be away from her primary carer, who happens to be her mother.

17. The father says, well, the mother was already saying that the child was anxious in November 2014. She thought she would be okay with overnight time when she was three. Overnight time has commenced one night a fortnight since May 2015 and two nights since January 2016. The mother says the child is still anxious. How is overnight time the issue here?

18. If the child is anxious the father says there is no connection between overnight time and X’s anxiety. That may be correct at one point, and looking at it from one perspective. However, there is clearly a connection between X’s anxiety and the mother’s reaction to the father’s rights-based attitude to the mother and his role as a parent.

19. For reasons I am unable to fathom, he believes, because he said so on Facebook that the mother is alienating him from his child; the mother has emotionally abused him and his child for two years; “she is bat shit crazy” and uses his daughter – “as leverage”; “the mother needs psychological help”; and he and his daughter need to be “protected from further damage”; that “daughters need fathers”. All agree that daughters need their fathers however for the father to posit on Facebook a view that women try to cut fathers out of their daughters’ lives is an incredible position to take in his circumstances.

20. These posts by the father are fanciful if what the father is doing is in some way describing his relationship with his daughter. It is just fanciful. It is not only fanciful; it is untrue and incorrect. This father has been spending good quality time with his daughter for well over two years, including daytime and overnight time. To suggest that this mother in some way has emotionally abused him or is alienating the child is simply fanciful. He has been having consistent, quality time with his daughter including overnight time with a child who is not even yet four.

21. He posts to “Dads in Distress”, “Alienated Dads” and other men’s groups such as this. The father can post to assist these people but to in any way insinuate, as clearly these posts do, that this father, who is having good quality time with his daughter, is heading down a dangerous and potentially destructive course if he wishes to maintain a healthy relationship with his child.

22. What this does bespeak, as the mother says, is the father’s lack of respect for the relationship of his daughter and her primary carer, who happens to be the mother. Simple as that. It is just the way it is. No one is making anything of that other than that is just factually accurate.

23. In January 2016, whilst waiting in the waiting room at a hospital with the mother and maternal grandmother for the child to be seen due to blood in her stools the father posts on Facebook:

    In the waiting room of a hospital with the two most evil women I’ve ever met in my earth. Hell on earth. And then I overhear a woman telling a clerk about how bad her son’s father is. I was sitting across from the grandmother in silence, thinking to myself this bitch is funding the court case that’s stopping me from seeing my child.

24. This was at a time when the father was seeing his child five days a week and was having overnight time and was about to go to two overnight periods a month. I am not sure who the father was talking about. Certainly not his relationship with his daughter and it certainly was not this mother who had informed of the hospital visit and was promoting his all important relationship with his daughter despite his poor behaviours. The mother, of course, found out about them, as you do on Facebook. I do not know why people go on Facebook when they are in court proceedings but there it is.

25. There was a further issue in January 2016, when there was to be make up time. The father believed it was better that the child was kept with him for two nights because rather than returning her to her mum and then back to him for the next night for overnight time. There was some argy-bargy with the mother and father on this issue and they could not agree. The father ultimately got his way and this caused the mother significant concern and destroyed what trust she might have had in the father at this time.

26. He writes to the mother on 23 January 2016:

    I hope you start co-parenting.

27. Co-parenting is a two-way street. It is not one way. It is for both parents to carry out. The father believes every request to vary a date or change an order, which is normal in the life of any person as time goes by is in some way the mother trying to get at him, ruin his relationship with his daughter and is bespeaking badly of him.

28. For example, X was asked to be a flower girl at a wedding during his time. The father’s reaction is that this normal request is designed to get at him or alienate him from his daughter. This attitude is destructive of his relationship with the mother and potentially destructive of his relationship with his daughter because of the impact on the mother and is simply incorrect. Telling the mother she had stolen his weekend when his daughter was flower girl is using language that is not necessary and it is incorrect and demonstrates the father’s needs are a priority to his daughters needs given she was enjoying being a flower girl at a wedding.

29. There is a degree of immaturity and the father not really focusing on his daughter’s needs but his overwhelming need to be part of his daughter’s life daily and I understand that. Unfortunately, as the parents are separated neither of them are involved in their daughter’s life daily. They cannot be when she is in the care of the other parent. It is just a reality separated parents must accept because you are not living together.

30. Rather than rejoicing in his quality time with his child – because he has quality time – praising the mother for the child that his daughter has grown into and supporting the decisions she has made and the effort she makes to make sure her daughter has a positive attitude towards her  father – which she must have because the father tells us how well she responds in his home and how happy she is with him, which I accept and which would not happen if the mother did not support this relationship – he uses these events as some sort of campaign and sometimes a campaign for other people in a public forum on Facebook. So I am somewhat at a loss to understand the fathers; issues and do not really understand how he has come to the position he has about this excellent and child focused mother. However there it is. They are the facts.

31. Now, I accept the mother saying to the father words to the effect, “You have to do what I say because I am the mother” is also inappropriate. I accept that is not appropriate language, if it be used. However, the father does not seem to accept that as X’s primary carer, the mother may actually know best at this stage of her daughter’s life and there is nothing wrong with following the primary carer’s lead on these important issues. That is the reflective parent. If the father cannot accept this is the position for his own reasons, negative consequences may flow.

32. Going to the Act and the pathway I am to take and the issues I have to address.

33. I have no doubt this child benefits from a meaningful relationship with each of her mother and her father. Both these people are excellent people. They are committed, competent, caring, capable parents and X is lucky to have such committed, competent, capable parents in her life. The fact is her mother is her primary carer and that will be at this stage her most significant attachment figure. That in no way diminishes the father’s capacity or the fact that his relationship with his daughter will also grow in time but that is the reality of the situation we have today.

34. I do not see this child has been subjected to abuse, neglect or family violence in either parent’s household, which is a pleasure for me to be able to say.

35. X’s wishes are not relevant. She is too young. She does not really know concepts of time. Her father even mentions that in his affidavit.

Parental capacity:

1. Each of these parents has a high level of capacity to provide for the psychological, emotional and educational needs of their child. However, I am concerned as to the father’s capacity to understand the important need to support her primary attachment to her mother who is her primary carer and support that relationship. Despite what the father says or thinks the mother has supported the child’s relationship with the father to a high degree because I accept X has a tremendous relationship with her father today.

Insight each parent demonstrates:

1. Each parent does have insight into the needs of their child, however, the father’s view that whenever the mother wants to change something or vary something that this is, in some way, getting back at him, does not bode well for his continued insight into the needs of his child because he is reflecting back on his needs not his daughter’s needs.

Impact of Change:

1. This is a significant factor in this matter. This little girl has been used to spending overnight with her dad since May 2015, one night a month, then to two nights a month. The mother seeks I vary that and just go to the day time only. That’s a factor that has weighed on my mind in this matter in determining whether to change the orders.

2. Despite what the father might believe this mother has 100 per cent complied with the orders. The mother has not missed a beat at all and she should be praised and supported for that, not criticised.

3. I, too, am concerned that the reaction the mother has to the father’s disrespectful and unjustified criticism of her on Facebook may well be having an impact upon X being away overnight from her mother. I am concerned. I cannot make a finding. It is an interim hearing. Overnight time is vastly different to day time and I accept the mother’s description of X’s behaviour and it is consistent with a child having a primary attachment with her mother, because they arc up and misbehave or let their feelings all out with the person they are most attached and comfortable with which in this matter, is X’s mother. X may do so with the father because there is not a primary attachment there. That makes sense to me.

4. I have found this matter very difficult. It is a fine balance. Without the social science and the evidence needed to make a finding I am concerned as to what I should be doing. I was inclined to suspend overnight time for a period, however, I do not know that that is appropriate and nobody has sought that order.

5. There are significant delays in this registry in getting a final hearing. It is a travesty and wrong and it must have an impact upon and be regarded in my decisions which I would rather not have regard to but I must.

6. To suspend the father’s overnight time now when it may be two years before a final hearing may well be the most significant injustice I could perpetrate on this child. It may be the greatest harm I could perpetrate on this child. I do not know. To resume the overnight time in the future would be a further change to her usual care arrangements. So whatever I do there are those competing factors.

1. The father needs to amend his ways. Being disrespectful to the mother via Facebook and messages is destructive behaviour and bespeaks a poor and unjustified view and attitude to the mother and may result in a negative outcome for his relationship with his daughter.

2. The mother is X’s primary carer. It is axiomatic that if you support the child’s relationship with the primary carer your relationship with your child will blossom. It is just a simple fact. This is not a contest between two parents. It is developing a working relationship, co-parenting a child. You support each other. That’s the way to do it. He, the father, and only he can demonstrate he has changed his ways and learnt. The path he was on was destructive and potentially lethal to his important relationship with his daughter.

3. Fathers are equally as important to their children as are mothers. That is clear. There are difficulties that I raised with the voluminous number of changeovers the child already has which would only be increased in ceasing overnight time resulting in two additional changes. However the parents have come to an accommodation to streamline and minimise what has been at times an issue for their daughter in changeovers.

4. This is a finally balanced matter, as I said. On the one hand, I accept the mother’s concerns regarding her child’s anxious behaviours which she said have not abated since November 2015 which may well arise out of the father’s behaviours and attitude towards her. I can understand that. The mother would be anxious letting her precious child go to the care of someone who believes she is evil and destructive, which he said in January 2016 she was and included the maternal grandmother in that coven.

5. I am very critical of the father’s disrespectful and demeaning treatment of and comments of the mother and the grandmother in a public forum, which I can only accept he believed at the time. Comments and views which were entirely erroneous and not supported on the facts when he was having time six days a fortnight and one night each two weeks now.

6. His poor behaviour may well have negatively impacted on the mother and that has flowed over to his daughter and the father did not seem to see that connection at all.

7. However, on the other hand, I accept the father’s position that the mother has not raised this issue at family therapy, or raised it with him and he agrees that when the mother is happy X is happy. That last agreement tells the father what he has to do for the benefit of his daughter

8. I accept the father’s position that for me to suspend orders I have already made I need clear and cogent evidence that the overnight time is the problem and that to suspend that time will assist.

9. Now, the mother’s evidence is mercifully not embellished and has the air of truth and reality about it. This is not a mother who has overstated or gilded the lily, as I see it. However, the reasons for X’s anxieties must be multitude. The father’s behaviour may be the culprit because it flows over to the mother and over to the child. Perhaps X is having too much time. Perhaps she’s not having enough overnight time and too much day time given her age. I don’t know. Perhaps there are too many changeovers for her. I don’t know.

10. The child senses the hostility between her mother and father at changeover. The child senses the poor communication between the parents at changeover. These are all factors and perhaps there’s a multitude more that I could look at. I do not know. But to say that overnight time is the only culprit and to cease that time it being a once each fortnight would ease these anxieties is not supported on the evidence. I find that the evidence has not satisfied me that mere overnight time is the culprit in this matter and that ceasing that time would ensure the child’s anxieties are managed.

11. The parties are continuing family therapy and a report from Dr L will be available prior to 1 November 2016, which is a date where I will happily entertain a further interim application. I will vacate the 8 December 2016 date. The parents have agreed to streamline the changeovers that they have entered into previously and that is all to the good

12. The balance, as I see it for me, is the negative consequences for X of ceasing overnight time when ultimately I know it will occur and then having it reintroduced and the negatives for her of overnight time continuing.

13. At one level this is all on the father. He has created this, not the mother. She is blameless. If the father’s behaviour continues not only will overnight time be at risk so will his input into his daughter’s life which currently he enjoys the privilege of so doing. I find on an interim basis, as opposed to a final basis – and this is very finely balanced for me – ceasing overnight time has the potential to cause the greatest harm to the child.

14. However, as I have said, I sound a note of caution. If the father does not change and soften his attitude to the mother and cease the fiction of his being alienated from his daughter and continues to denigrate the mother publicly his relationship and input into his child’s life may be at risk at a final hearing or if there is another interim hearing in November.

15. X’s mother is a triple A mother. These proceedings are about his daughter’s needs and capacities, not his wants or desires. I will dismiss the mother’s application to suspend overnight time. However if the father does not change his ways and does not adhere to those injunctions and restraints it may be that there will be a different decision on the next occasion.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 22 July 2016