Keating and Kirkpatrick (No.2)

[2017] FCCA 971

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEATING & KIRKPATRICK (No.2) [2017] FCCA 971

Catchwords:
FAMILY LAW – Parenting – interim – increase in overnight time for pre-school child.

Legislation:

Family Law Act 1975

Cases cited:

Goode & Goode (No.2) [2007] FamCA 315

Applicant: MR KEATING

Respondent: MS KIRKPATRICK

File Number: SYC 5148 of 2014

Judgment of: Judge Henderson

Hearing date: 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Sydney

Delivered on: 15 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Tockar

Solicitors for the Applicant: Gown & Gavel

Counsel for the Respondent: Mr Sansom SC

Solicitors for the Respondent: Abrams Turner Whelan Family Lawyers

ORDERS

1. The matter be listed on 23 June 2017 at 9:30am for the allocation of final hearing dates.

2. The current parenting orders in respect of the child X born (omitted) 2012 continue until the first week of June 2017.

3. Thereafter child will spend time with her father from Tuesday 7.30 am to 4.30 pm and Saturday 8 am to Sunday 4 pm in week one and in week 2 from Tuesday 7.30 am to 4.30 pm and Thursday 3 pm to Friday 4.30 pm.

4. From the first week in October 2017, the child will spend time with her father from Friday 8 am to Sunday 4 pm in week one and from Tuesday 7.30 am to 4.30 pm and Thursday 3 pm to Friday 4.30 pm in week 2.

5. In the week that the child is spending two nights in her father’s care time with the father is suspended on the prior Tuesday.

6. On two occasions in January 2017, the father’s time on the weekend is to commence at 9 am Friday and is to extend to 9 am Monday otherwise the regime of time set out in Order 3 and there are to continue.

7. Upon the child reaching school age, the child spend time with her father in the first week after school resumes from after school Thursday to the commencement of school Friday morning, and the second week from after school Friday to Sunday 4 pm.

8. The child to spend time with her father in 2017 from 3 pm Christmas Day to 6 pm Boxing Day and in 2018 from 6 pm Christmas eve to 3 pm Christmas day or as agreed.

9. Commencing the first mid-term school holidays in 2018 the father’s regular time set out in Order 6 is suspended and he shall spend time with the child on the middle weekend of the holidays from 9 am Friday to 9 am Tuesday for each term school holiday period.

10. Commencing the Christmas school holidays 2018, the father shall spend two periods of five nights with the child, being two weeks in January, from 9 am Saturday morning to 9 am the following Thursday morning as agreed and failing agreement the second and fourth weeks of January.

11. From the commencement of the School year in 2019 the father shall spend one half of each term school holidays with the child.

IT IS NOTED that publication of this judgment under the pseudonym Keating & Kirkpatrick (No.2) 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. The matter of Kirkpatrick & Keating is an application by a father to increase the time he is spending with the parties’ daughter, X. X was born on (omitted) 2012. The parties commenced proceedings in 2014 and still in embroiled in a dispute about the child

2. That, of itself is a concern, however, with young children and prior poor parental behaviour often it is difficult for parents to agree on future parenting arrangements.

3. The father currently spends time with X in accordance with Orders made on 12 November 2014 and amended in part by orders made on 27 June 2016, following a contested interim hearing. Those orders provide for the following.

4. X lives with her mother and spends time with her dad in week 1 from 7.30 am until 4.30 pm on Tuesdays and Fridays; in week 2, from 7.30 am until 4.30 pm Tuesday and from 8 am Saturday until 4 pm Sunday.

5. Thus X is spending one night a fortnight in her father’s care, or two nights a month.

6. The father seeks, ultimately, by the time X commences formal education in 2018, that she spend four nights a fortnight in his care by an increase from the current 1 night a fortnight to 2 nights a fortnight immediately and then to 4 nights at age 5. The mother initially opposed any change to X’s care arrangements however conceded 2 nights a fortnight was doable for the child.

7. Mr Sansom SC represented the mother and Mr Tockar of counsel represented the father.

8. The material I have read for this application was as follows:

   a)For the father:

   i)Amended application in the case filed 3 April 2017, which was very similar to the one filed 16 December 2016. He did not press order 3(b) or order 8 of that application;

   ii)Affidavit of the father sworn 16 December 2016;

   iii)I did not read his affidavit in reply.

   b)For the mother:

   i)Response of 4 April 2017;

   ii)Affidavit of the mother, sworn 17 March 2017, filed 21 March 2017.

   c)The report of Dr V, who prepared a report for the final hearing which is yet to occur.

9. This matter has had a somewhat chequered history in the court. X lived with her parents for less than a year. They had separated under one roof before she was one year of age and at 12 months, the father left the home. Therefore, X, the mother and the father have not had the benefit of the child living with them for any length of time and each are suspicious of the other in the parenting of their child.

10. The matter came before me in September 2014 initially. The father, as the mother sees it, and there is some support for her view, was pushing the envelope. The mother asserts he was seeking quite extensive time with orders for overnight time for a very young child, which caused the mother some concern. Ultimately, I made orders in November 2014 that the father was to spend time with X on a regular basis with overnight time to commence in May 2015 on one occasion each month. There was no reason to doubt that this time might increase as X aged however it has not.

11. The parties underwent some therapy with Mr P. They certainly need to learn to create a respectful parenting relationship with each other which they did not, at present, have and there are many and varied reasons for that.

12. The mother came before me in March 2016 seeking to suspend the father’s overnight time because she was concerned about X’s presentation after spending time with her father and sought to reduce the father’s time. The father seeks this continue however in the absence of agreement on this issue I do not see the benefit at this stage.

13. On 27 June 2016 I heard the mother’s application to suspend the father’s overnight time. I dismissed that application however I was extremely critical of the father’s highhanded and rights-based parenting approach and style. My judgment was published and I made orders allowing the mother to take the child overseas for a family holiday.

14. I did not suspend the father’s overnight time, as I could see very little connection or nexus between the child’s anxiety and time with the father. I was additionally concerned that to reduce time would be a significant change to her care arrangements and, given that she was having limited overnight time I determined the mother’s application was not in the child’s best interests.

15. However, the father’s conduct towards the mother and her parents prior to that application being brought was inexplicable. He is still dealing with the consequences of decisions he made to post on Facebook comments about the mother such as, “she’s bat shit crazy,” that the mother uses his daughter as leverage, the mother needs psychological help, his daughter needs to be protected from further damage, all daughters need fathers, posting on Facebook that he liked pages about how fathers are alienated from their children. As an example a post from the father in January 2016 to friends:

    I’m waiting in the room of a hospital with the two most evil women I have ever met on earth. Hell on earth. 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.”

16. The father’s rude comments were completely untrue as the father was seeing his child at that time and, as I said in my judgment :

    This was at a time when the father was seeing his child five days a fortnight and was having overnight time. He was about to go to two overnight periods a month and I was not sure who the father was talking about.

17. However, that was his behaviour early in January 2016. I made my decision in June of 2016 and X has spent this time with her father since that time. When the matter came before me in June I made an order appointing Dr V as an expert to prepare a report into these issues. That report was released on 31 October 2016.

18. The matter was again before me on 1 November 2016, at which time I was of the view I was conducting the interim hearing in relation to the father’s application to spend more time with his child. My directions of 27 June 2016 read:

    The matter was listed on 1 November for possible interim hearing following the release of Dr V’s report. The mother’s application to suspend overnight time will be dismissed.

19. On 1 November 2016 I listened to submissions. I did not dismiss Dr V’s report despite the mother’s application that I do so and I proposed to make orders extending the father’s time and reducing the changeovers, as this was clearly causing some difficulty for the child.

20. I was addressed by Mr Sansom SC that I had not given the mother procedural fairness. That they were not there for that hearing, that I had overtaken the matter. I stayed, at Mr Sansom’s request the proposed orders and listed the matter on 7 April for an interim hearing on the father’s application for extended time.

21. The father seeks orders that his time increase such that he spends, immediately two nights a fortnight with his daughter and, when she turns 5 in November 2107 four nights a fortnight and with some extension of holiday time.

22. Mr Sansom SC of counsel made an application in this hearing that I disqualify myself because I had made a comment in discussions with Mr Tockar when the matter was first called on that the orders currently in place would need to be changed when X attended school. The basis of the application was that a reasonable person sitting behind the court would apprehend I had made up my mind by that comment. However, the reality is the orders have to be changed when X attends school. X cannot spend time with her father from 7.30 Tuesday morning to 6.30 Tuesday night when she is attending school nor spend time with her father on her birthday from 2 pm to 6 pm if it be school day. That application was ultimately not pressed as it had no merit.

23. The mother tendered exhibits as follows:

    a)Exhibit 1, a tender bundle of social media printouts;

    b)Exhibit 2, a bundle of SMS printouts from August 2016;

    c)Exhibit 3, a letter from her solicitors in relation to the ceasing of family therapy with Mr P.

24. The father tendered exhibits as follows:

    a)Exhibit 1, an exhibit bundle of SMS printouts from February 2017.

25. There is no doubt that X benefits from a relationship with each of her parents. There is no doubt these parents are each capable, competent and caring parents. The mother is an excellent mother, parenting her child to a high degree. Her own affidavit is testament to that. X can happily separate from her to attend preschool. X has reached all her developmental milestones and is progressing very well in her mother’s care. The only blight on the horizon that the mother can see is the child’s anxiety upon returning and/or going to her father’s home.

26. The father, of course, from his position, sees none of this. He sees a child who, he accepts, has at times had some anxiety separating from her mother, but once her mother is out of her sight, she settles well. He and the child have a strong and connected relationship and the father is of the view that X is now ready for more than one night each fortnight in her father’s care and that before she attends school, she should be spending some more time with him.

27. These cases are extremely hard as the distrust between these parents is palpable as was clear from the report of Dr V who commented that X would be picking up on the parents’ mistrust of each other and that the child’s anxieties perhaps arose from that mistrust. I must, inter alia balance the possible risk to the child of heightened anxieties with the child’s right to the benefit of a meaningful relationship with both of her parents.

28. As this is an interim hearing, I cannot make findings of fact on contested issues, however the evidence may tend to me preferring one version of events to another or having a strong favourable impression of one party’s evidence to the other party.

29. It is of concern that from the mother’s point of view, as clearly set out in her affidavit, the only time the child has any anxieties, any difficulties, any problems, is when she has spent time with her father. That, according to Dr V, in her report may mean that the child is picking up on the poor relationship between her parents. I accept the position Mr Sansom SC put to me that every time there has been a change to X’s care arrangements, there has been somewhat of an upheaval for her and the mother.

30. The mother brought an application after overnight time had commenced in 2016 to suspend the father’s overnight time, saying the child’s concerning and unsettled behaviours were due to spending time with the father. That application was refused. The mother is still of the view that the child continues to suffer anxiety when spending the somewhat limited time she spends with her father and that to increase time by one night to 2 nights a fortnight let alone 3 or 4 nights may result in an unacceptable risk to the child due to her increased anxieties. The mother says that the child may then suffer psychological and emotional harm due to an increase in anxiety.

31. The mother’s current affidavit sets out her concerns for X at paragraph 11 a period from late 2015 and continuing through to mid-2016.

32. Mr Keating denigrated her on Facebook. Mr Keating “liking” various pages on Facebook and Instagram which refer to alienation, narcissists and refer to mothers who do not allow father’s to spend time with their children as abusers. Mr Keating, on his personal Facebook and his solicitor’s personal Facebook, liking matters which deal with alienation and referring to Family Court proceedings in a negative way. Mr Keating was sending the mother hostile and abusive text messages. Mr Keating refusing to greet her at changeover.

    Mr Keating constantly questions my parenting decisions as to X.

33. Retaining X in January 2016 on an additional night when he should not have. I accept Mr Keating did all of those things.

34. However, the time frame in paragraph 11 is late 2015 to mid-2016. It is now April 2017. It has been almost 12 months since the mother has reason to make those complaints.

35. The mother says in her affidavit, paragraph 16:

    It has been my observation X has continued to demonstrate anxiety and distress, both at changeover and upon her return home to my care from spending time with Mr Keating. The behaviour has improved and is not as problematic as it previously was. The improvement is because X has settled into a routine and is benefiting from a routine, consistency and structure. I am able to tell X when she has day care, when she’s with me and when she’s spending time with Mr Keating. Having this consistency has allowed me to focus on helping X improve her behaviours.

    There continues to be worrying behaviour from X and I remain concerned that, given how long it has taken her to adjust to the current arrangements, any change to the arrangements would cause a regression or a repeat of concerning behaviours

36. I accept that as X commences school in 2018, the mother is most concerned to ensure X is well settled and ready for school.

37. I accept that communication between she and the father remains poor and she is most sceptical that the only time the father’s communication does improve with her is just prior to court proceedings.

38. The mother does not receive feedback from the father about how her sleep went and whether she is using her dummy and the like. This is of concern to the mother, even though X is now four years of age. The mother believes that if the father raises any difficulties that X has in his care he believes the mother may try and restrict his time with her.

39. That is the nub of this issue; neither of these young parents trusts the other because they never lived together for any significant period of time parenting their child together. They do not know who the parents each of them are and they do not trust each other. The father is clearly of the view the mother is trying to restrict his time and the mother is of the view that the child is anxious with the father and that he is pushing for more time than the child can cope with.

40. The more concerning matters the mother raises in her affidavit are of a more recent nature. Paragraph 31(b):

    2 August 2016, I was putting X in the car, “I’m going to go to dad’s and I will get you after work. The child said “I don’t want to sleep over.” The child buries her head in the mother’s neck.

41. I am not sure if that behaviour is continuing or was one off.

42. Another occasion, paragraph 31(d):

    August 2016, “I don’t want to go to daddy’s and she begins to cry. X is focused on whether she’s staying overnight, “I don’t want to sleep there. Don’t be late to pick me up.” The father is frequently late at changeover.

43. I do not know if this is current behaviour.

44. At paragraph 34:

    X is generally happy, settled and good natured. She enjoys a loving relationship with Mr Keating and my extended family. I assume she has a similar relationship with her father’s family. She’s doing well at kindergarten, has settled well. She separates from me easily and is happy to go to day care. The directors at the preschool are happy with her progress and she’s blossoming and developing a great peer group.

    The only constant anxiety and behavioural difficulty as I observed from X comes after she has spent time with Mr Keating and I believe she behaves badly, is then unsettled upon her return home with him. This on both day visits and overnight, although there are differences.

45. The mother is of the view she needs to know the child’s routine and what she eats at age four. I do not see that as a necessity and the mother needs to leave that issue now and accept as the Court does that her father feeds her as appropriately and as well as she does.

46. The mother continues.

47. When the child returns from overnight visits she grabs her mother’s top, pulls at her top, sulks and refuses to speak with her. That the child does not want to be separated from her mother.

48. That the child is tired and falls asleep at 7 o’clock and she goes to bed much earlier than she should. That X is unsettled during dinner time and bath time and wakes up in the middle of the night.

49. The mother has asked her “Do you wake up at daddy’s?” “Yes, I wake up and I want you when you’re not there.” That X is bad tempered and throws tantrums. She threw a tantrum on 11 December 2016 and became constipated. X happily stays at her maternal grandparents’ home and is happy and more settled, but this is not her behaviour when she returns from her father’s. The mother only observes this unsettled behaviour when the child has spent time with the father.

50. However, in the mother’s affidavit filed on 17 March 2017, the latest poor behaviour the mother complains of regarding the father is as follows.

51. That he lied to the mother about whether she would be collecting X from him on Christmas Day at (omitted). The mother had to drive to (omitted) to collect the child.

1. That he has ignored her emails about what school the child should attend in 2018. Today they have agreed on what school she will attend in 2018.

2. That he continues to question her parenting decisions for example who is caring for the child when the paternal grandmother is not available. These are events in October 2016, however. The father must accept, if he has not already done so, that the mother will always make appropriate arrangements for the child and he is to stop questioning her on these issues.

3. There is little in the mother’s affidavit, apart from emails in October 2016, some six months ago now, of him continuing to hector and question her about arrangements of the child. He has not done this since that time. The cogent concerns are the mother’s descriptions of the child’s behaviours after returning from time with her father.

4. What Dr V says about this in her report, released 31 October 2016, is at, paragraph 52:

   One of the significant issues in this case is the level of protectiveness of X which Ms Kirkpatrick seems to show and Mr Keating finds concerning.

   Ms Kirkpatrick’s concerns may be justified, given some of Mr Keating’s prior behaviours and the distress she ( X) experienced in separation from her mother ………..behaviour.

   –

   Any un justified overprotectiveness or hypervigilance of the mother and ……….. coupled with the father’s overzealous attitude may become factors that obstruct the unproblematic progression of the time she spends with her father.

   The parties need to appreciate that the ease with which X will move between them is very much determined by their parental relationship, the level of conflict between them and their capacity to facilitate transitions without overt signs of anxiety. Children are likely to identify with any anxiety that manifests by either parent and this, then, is expressed by anxious behaviour. X’s distress in separating from her mother – although this is not on every occasion, even on the mother’s best evidence – and her behaviour on the return visits may be an indication of this anxiety.

5. Paragraph 53:

   It is important for the parties to appreciate that X has mastered the developmental indices which are fundamental for her to be able to manage regular time away from her mother overnight. She has got a capacity to emotionally self-regulate and calm herself and she can use her father as a soothing source. She can imagine her mother, even when she’s not there, and has the language skills to understand what is being said of her. She can anticipate events beyond the here and now and understand what tomorrow means and she can express her rudimentary basic needs and feelings. The distress X expresses is more likely to be due to her observations of the intra and interpersonal dynamics of her parents and only the parents can address this.

6. The mother makes complaint that the father does not make eye contact with her at changeover, that they do not speak at changeover and she finds this very difficult. I understand X will clearly pick up on this. However nearly all of the behaviours complained of by the father in the mother’s current affidavit were exhibited at the latest in October 2016.

7. X is four. She will be attending big school next year. Her birthday is (omitted) 2017 when she will be five. Yet, the mother says that the only time this child can cope with away from her and in her father’s care is two nights a fortnight. It is, as I see it, imperative that X commence spending more time with her father before she attends big school, to give her an opportunity and, perhaps, her mother an opportunity, to settle into an increased regime of time.

8. Looking, as I must, at the matters under the Act[1] and following the pathway set out in Goode & Goode.[2]

   [1] Family Law Act 1975.

   [2] Goode & Goode (No. 2) [2007] FamCA 315.

9. There is no challenge to the order for equal shared parental responsibility made 12 November 2104. Thus I will need to consider whether an order for equal time or significant and substantial time is an order in the child’s best interests.

10. No order is sought for equal time and that is not appropriate for a child aged 4 years.

11. Substantial and significant time this is the time the father seeks being time on the weekends, during the school week and on special occasions and events such as Christmas school holidays and the like.

12. I am to make orders to ensure that a child benefits from a meaningful relationship with each of her parents unless to do so places a child at a risk of harm.

13. The only risk of harm that I can see to this child is the anxiety that she exhibits in her mother’s care related to entirely, it would appear to the parents’ poor relationship with each other. I do not see that otherwise she is at risk of harm in either of her parent’s care. Each are committed, capable parents who are very attached to their daughter and take their responsibilities of parenthood seriously. They have agreed on her school for next year, for example.

14. I do accept she is anxious with her mother and this may be due to her mother’s own anxiety in the child spending time with a parent that the mother knows has treated her poorly as he has. However, this is X’s right to the benefit of a meaningful relationship with her father and the mother is well capable of self-regulating her emotions in this regard.

15. The wishes of the child are not relevant.

16. If I order three nights a fortnight, Mr Sansom SC says this will be a significant change and will cause a significant disruption to the child’s routine and may result in emotional or psychological harm to the child.

17. I am struggling with that submission. Four nights a fortnight, I can see would be a significant change for the child and the mother from the current one or as the mother now concedes 2 nights.

18. A change to 3 nights a fortnight in a 14 day period of time is not so significant and I struggle to see how such an order would not be in X’s best interests. I am not persuaded that X will be at an unacceptable risk of harm if I order she spend 3 nights a fortnight in her father’s care. There is benefit for children in spending lengthier time with their non-resident parent and overnight time is enriching for children provided there is no unacceptable risk to them in so doing and I do not see an unacceptable risk to X.

19. Repeating the opinion of Dr V’s at paragraph 55 of her report :

    It is important for the parties to appreciate that X has mastered the developmental indices which are fundamental for her to be able to manage regular time away from her mother overnight. She has got a capacity to emotionally self-regulate and calm herself and she can use her father as a soothing source. She can imagine her mother, even when she’s not there, and has the language skills to understand what is being said of her. She can anticipate events beyond the here and now and understand what tomorrow means and she can express her rudimentary basic needs and feelings. The distress X expresses is more likely to be due to her observations of the intra and interpersonal dynamics of her parents.

20. Only the parents can address this distress as reported by the mother.

21. I do not accept that the father’s application for four nights a fortnight is at this stage appropriate given the mother’s resistance and X’s reported anxieties, however on balance I find that the child is well capable of spending three nights a fortnight in her father’s care and that she will benefit from that additional time before she attends big school.

22. It is now April 2017. The increase in X’s time will commence in June to 2 nights a fortnight and then to 3 nights in the first week of October to allow her to settle well into that routine of time before she commences big school. The father said, and I accept, that if I was not minded to make orders for four nights a fortnight, he seeks the regime of time set out in his case outline and I will so order.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  15 May 2017