Kerford and Lawton

[2016] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERFORD & LAWTON [2016] FCCA 2195

Catchwords:
FAMILY LAW – Parenting – equal time – high level of conflict.

Legislation:

Family Law Act 1975, ss.11F, 60CC

Applicant: MS KERFORD

Respondent: MR LAWTON

File Number: DNC 251 of 2015

Judgment of: Judge Young

Hearing dates: 28 & 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Darwin

Delivered on: 29 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Story

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Romeo

Solicitors for the Respondent: Margaret Orwin Barrister & Solicitor

Counsel for the Independent Children's Lawyer: Ms Terrill

Solicitors for the Independent Children's Lawyer: Marris & Co

ORDERS

1. That the child live week about with each parent during school terms from after school each Friday (or Thursday if Friday is a public holiday).

2. That changeover occur at the child’s school unless otherwise agreed.

ORDERS BY CONSENT

1. That the parents have equal shared parental responsibility for the child X born (omitted) 2010.

2. That the child spend half of all school holidays with each parent, with the father having first half in even numbered years and second half in odd numbered years: and with the mother having second half in even numbered years and first half in odd numbered years or as otherwise agreed.

3. That when the child is with one parent, the child spend times with the other parent as follows:

   (a)Mothers’ Day with the mother from 9am until before school the following day;

   (b)Father’s day with the father from 9am until before school the following day;

   (c)no less than 5 hours with the other parent on the child’s birthday if the birthday falls on a non-school day or up to 2 hours on a school day;

   (d)2pm Easter Sunday until 5pm Easter Monday;

   (e)Providing the parties are in Darwin, with the mother from 2pm Christmas Eve until 2pm Christmas day in 2016 and each alternate year thereafter;

   (f)Providing the parties are in Darwin, with the father from 2pm Christmas Day until 2pm Boxing day in 2016 and each alternate year thereafter;

   (g)with the father from 2pm Christmas Eve until 2pm Christmas Day in 2017 and each alternate year thereafter;

   (h)with the mother from 2pm Christmas Day until 2pm Boxing day in 2017 and each alternate year thereafter; and

   (i)any other arrangement as agreed.

4. That either party be permitted to take the child interstate during the school holidays.

5. That on non-school days the changeovers are to occur with the father collecting the child from the mother at 5pm at the commencement of the time and for the mother to collect the child from the father at 5pm at the conclusion of the time or as otherwise agreed.

6. That the child communicate with each parent by telephone at least twice a week at his request.

7. That each parent has liberty to telephone the child at 7pm each Wednesday and Sunday.

8. That each parent immediately notify the other, by phone or text, in the event of any emergency involving the child.

9. That each parent keep the other informed of their residential address, and telephone/email contacts and notify the other within 24 hours of any change to those details.

10. The each parent is restrained and an injunction is granted restraining them from denigrating the other or the other’s family to or in front of the child and shall remove the child from any other person so doing.

11. That each parent be at liberty to attend the child’s day care or school at times ordinarily attended by parents.

12. That the parents communicate with each other about the child via text or email unless in an emergency when the communication is to be by telephone in the first instance.

13. That the father is restrained and an injunction granted restraining him from denigrating the mother to the mother’s family.

14. That the father forthwith enrol and attend “For the Kids”.

15. That the father enrol in individual counselling at either CatholicCare or Relationships Australia in relation to ongoing communications with the mother.

16. That the parents enrol the child and ensure his attendance at an appropriate child counselling service at CatholicCare and each parent meaningfully participate when requested to do so with the mother completing the enrolment.

17. That pursuant to section 65DA(2) and 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A attached hereto, and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 251 of 2015

MS KERFORD

Applicant

And

MR LAWTON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is a parenting matter concerning a child, X, who is five years old.  He turns six in (omitted).  The father is 60 years old.  The mother is 28 years old.  The mother and father met in (country omitted) in 2009 and married there in 2010.  The father is an Australian and very soon afterwards the parties moved to Australia to live and they have lived here since.  The parties separated in April 2015.  The mother began a relationship with her present partner, Mr M, around that time although the father asserts that their relationship began earlier in 2015.

2. The parties’ separation was extremely acrimonious and the relationship remains acrimonious.  The father was and remains angry that the mother left him.  After separation, an unpleasant competition began between the parents about X with, for example, one parent going to child care early to ensure that the other one did not collect the child and so on and other very unsatisfactory conduct.  This led, on 28 July 2015, to a consent order where interim orders were made leading to a week-about arrangement for X. 

3. The mother denied consenting to this but I find she did consent to that order.  She signed a minute to that effect and the document was put into evidence.  The father, as I said, was and is angry that the mother left him.  There are a series of text messages from him to her in evidence and I do not propose to repeat them in detail and one at least, directed to Mr M, referred to the mother as a prostitute or a former prostitute and having a sexually transmitted disease. 

4. The tone and content of the text message was derogatory in the extreme and reflected what I find is an extremely contemptuous attitude towards the mother held by the father.  There are other text messages in a similar vein, although that is the most offensive, to my mind.  The father agreed in cross-examination that the tone and content of the text messages was extremely contemptuous. 

5. The father was asked if he thought that the attitude demonstrated in the text message communications may explain the mother’s deep reluctance to communicate with him and he was also asked whether he thought that the contempt expressed by him towards the mother may have ramifications for X’s relationship with one or both parents in the long run. 

6. Regrettably, the father did not appear to understand that his contemptuous attitude towards the mother would be likely in the long term to have some effect on X’s relationship with her and, indeed, perhaps him.  The father said he did not understand the question.  I am satisfied that the father has limited insight into X’s emotional and psychological needs and very little understanding of the harmful effects of his conduct on X’s welfare in the long term.

7. For example, the family consultant recommended at both a section 11F conference and later in her family report that both parties complete a post-separation parenting course. The mother completed that course. The father said in evidence that he did not think he needed to. I regret to say that I disagree strongly with his assessment. I find that the mother has a great deal more insight into X’s emotional and psychological needs than the father.

8. In my view, this is confirmed by the family report writer whose author detected a somewhat critical and negative attitude adopted by the father to X within the observation session.  She said that there were few positive comments made by the father towards X.  Nevertheless, in her view, he had a good relationship with X and she made no other criticisms of his parenting capacity and I find that, certainly in relation to X’s physical needs, the father is adequately able to provide for those.

9. The father suggested in cross-examination that X had said to him that he, X, did not like the mother and “hated” Mr M.  Those matters are not mentioned in the father’s trial affidavit.  They are inconsistent with the observations of the family report writer.  She observed that X and the mother relished each other’s company and that X seemed to have a positive relationship with Mr M.  I have concerns about the truth of the father’s statement but I do not think it is necessary to make any particular finding about that.

10. However, I find that the substance of what he said, that is, that X did not like his mother and hated his Mr M, is not true.  The proposals of the parties at trial were as follows:  the mother proposed that X live with her and spend two days and nights a fortnight with the father.  The father’s position was, after some equivocation, in favour of equal time.  I am satisfied that the mother’s view reflects her difficulty coping with the father’s hostility which, as I have said, is real.

11. Nevertheless, the mother acknowledges that X loves his father and she acknowledges frankly that X looks forward to his time with the father.  I mentioned the father’s equivocation about his proposal.  His counsel confirmed at the end of the evidence that the proposal was for a shared care arrangement, 50/50, week-about, rather than X spending two days a fortnight with his mother.  While the two days a fortnight was suggested by him at one point, the father acknowledged that that was really a tit-for-tat proposal, rather than one that he genuinely believed was appropriate.

12. The author of the family report cautiously recommended that the current shared care arrangement, which came about after the interim orders on 28 July 2015, should continue.  The author of the family report had checked with X’s child care centre and she reports that there were no issues with X’s developmental milestones.  He was reaching those and, indeed, according to the management of the child care centre, there were no concerns about either parent and their appearance was that both parents were perfectly adequate carers for X and I accept that that is the case.

13. The mother said in evidence that the shared care arrangement had worked relatively well over the past year.  She said that there had been some difficulties when X returned after his week with his father but he usually settled after an hour or two when she played basketball with him or went for a walk or did some exercise.  She did say that over the past three months or so, which I think would be the second term of X’s school year this year, that he had appeared somewhat more emotional and upset.

14. It is possible that that may confirm the father’s observations.  In any event, I consider that there is a real risk that X is suffering from the high level of conflict between his parents and that is reflected in feelings of insecurity.  I consider that some steps are required to address that and I am satisfied that the counselling recommended by the family report writer is appropriate. I am pleased to see that those proposals are included in a draft minute agreed on by the parties which appears to agree to just about everything except the shared care issue.

15. I am also satisfied that the father must complete a post-separation parenting course and I think it would be of great value to him and, most of all, to X and X’s relationship with the mother and X’s relationship with the father if the father underwent counselling to try and ameliorate the harmful effects of his continuing hostility and anger towards the mother. 

16. Ordinarily in a case where there was a high level of conflict such as this one that would militate against a shared care arrangement.  But I accept the opinion of the family report writer, cautiously expressed, that the best course in this case is for current arrangements to continue as long as the level of conflict can be minimised.  I find that it is primarily the father’s behaviour and attitudes that need to change if the shared care is to work successfully. 

17. I should address the legislative pathway for the sake of completeness. Of course, the orders to be made are the orders that are in the child’s best interests, and the child’s best interests are determined according to section 60CC(2), primarily by considering the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

18. The second matter there, of course, is the one having the greater weight but I am satisfied that that is not an issue in this case, although I have averted to the risk of harm should the high level of conflict continue between these parties.  So I am satisfied that it is in X’s best interest that he have a meaningful relationship with both of his parents and that that meaningful relationship will be supported by the orders that I propose to make.

19. Under section 60CC(3) there are additional considerations which I must have regard to. Any views expressed by the child: he is too young to have expressed any real views according to the family report.  The nature of the relationship of the child with each of the child’s parents: X appears to have a loving relationship with both parents and both parents are deeply engaged in his life.  There have been some criticisms made by each of the parents of the other’s conduct but I am not satisfied that I should find anything other than that X’s relationship with both parents is very good.

20. There is evidence that X has a close relationship, or at least a relationship, with other persons on the father’s side of the family, including two of the father’s daughters, one of whom at least, has children and that X sees them regularly. The orders that I propose to make will see those relationships continue. Next, the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about long term issues and spending time with the child: because of the difficulties in communication I think that there have been some obstacles there.

21. Some evidence was given about the father taking X to the hospital to have a foreign object removed from his ear, which was subsequently removed without ill effects but the father, in my view, quite unnecessarily delayed in reassuring the mother that all was well.  That is an example of the sorts of attitudes that I have referred to in this judgment and I would hope that that will change.  It must change for X’s sake.

22. Next, the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child: there appears to be some dispute about child support in this matter.  The father has apparently taken long service leave which has relieved him of the obligation to pay child support.  The mother, who continues to work, therefore has an obligation to pay child support to the father.  I do not draw any particular conclusions from any of that but I suspect that that conflict is a reflection of the other deeper conflicts in this matter.

23. The likely effect of any change in the child’s circumstances:  there will be no change in the child’s circumstances and the shared care arrangement will continue. 

24. The practical difficulty and expense of the child spending time in communicating with each parent: that is not an issue in this case.

25. The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs:  I am satisfied that the mother has the capacity to provide for the emotional and intellectual needs of X.  I have made some observations critical of the father’s lack of insight into some of X’s emotional needs.  I hope that he has the humility to recognise his limitations in that regard and to genuinely follow through on the counselling that I propose to order.

26. The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and of the child’s parents:  the child’s mother is (nationality omitted), the child’s father is an Anglo-Australian, at least culturally.  Both say that they will encourage X’s continued connection to (nationality omitted) culture.  I do not know whether that will be the case or not but they say that.  The child is not an Aboriginal child or a Torres Strait Islander child. 

27. The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents: I have made observations about this and I think there are limitations, possibly with both parents but particularly the father who, in my view, has not demonstrated an attitude and a degree of responsibility that I think is necessary to support X’s long term interests and welfare, unless he can change his behaviour.

28. Any family violence:  there has been a domestic violence order or undertaking in place in the past at least but I make no finding of family violence.  I am not sure if the family violence order or undertaking is still in existence but, in substance, it was really directed towards ensuring that the mother and the father did not approach each other, which was probably necessary at one point.  I would hope that in time that they can at least manage to conduct themselves in a more civil way.

29. I am satisfied that the appropriate order is that time be shared equally between the parents and that they each have equal shared parental responsibility.  Otherwise the orders set out in the minute provided by the parties are the orders that I propose to make.

30. I will also make an order discharging the ICL.

31. I also propose to make an order that these ex tempore reasons, once settled, may be provided to any person providing counselling or other services to the parties or the child.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 24 August 2016