KINGSFORD & KINGSFORD

[2011] FamCA 76

FAMILY COURT OF AUSTRALIA

KINGSFORD & KINGSFORD [2011] FamCA 76

FAMILY LAW – CHILDREN – Interim – Best interests of a child – High degree of conflict between the mother on one hand and the father and his wife on the other – Consideration of the effect of parental conflict on the child - Existing orders to broadly continue

FAMILY LAW – CHILDREN – parentage testing ordered by consent

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Kingsford

RESPONDENT: Ms Kingsford

FILE NUMBER: MLC 9459 of 2009

DATE DELIVERED: 16 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Boymal

SOLICITOR FOR THE RESPONDENT: Townsend Wylde Lawyers

Orders

IT IS ORDERED THAT:

1. The report of Mr H dated 2 February 2011 be marked Exhibit “A” and remain on the Court file as if a Family Report prepared for the purpose of these proceedings.

2. This matter be listed for final hearing before me to commence on 20 June 2011 estimated to take 3-4 days.

3. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child T born … August 2004 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed as a matter of urgency having regard to the responsibilities of the independent children’s lawyer pursuant to these orders.

4. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

6. That the independent children’s lawyer forthwith do all acts and things necessary to arrange parentage testing in relation to the child and ensure that the report of such testing is distributed to both of the parents and a copy sent to my Associate, to be placed on the Court file pending identification (if necessary).

7. The father initially be responsible for the cost of the parentage testing with liberty to apply at the final hearing for the mother to contribute to same.

8. The independent children’s lawyer forthwith notify the parties of a paediatrician to be retained for the purpose of providing evidence on the health management, and in particular immunisation or like treatment for the child.

9. Liberty is reserved to the parties and the independent children’s lawyer to apply in relation to the selection of a paediatrician.

10. The parents do all acts and things necessary, including making any attendances by themselves or the child upon the paediatrician for the purpose of the paediatrician being in a position to give evidence in these proceedings.

11. For the avoidance of doubt, the spend time arrangements between the child and the father between now and the final hearing be as follows:-

    a)each alternate weekend, commencing on 25 February 2011, from 5.00 pm on Friday until 5.00 pm on Sunday during school terms;

    b)each alternate week during school terms, commencing 17 February 2011, from 4.30 pm on Thursday until the commencement of school on Friday when the father be and is hereby responsible for the delivery of the child to her school;

    c)during the first term school vacation for 5 days, such days to be nominated by the father to the mother’s solicitor and the independent children’s lawyer in writing by not later than 10.00 am on Wednesday 23 February 2011;

    d)on 3 March 2011 the time provided for in sub-paragraph 11(b) hereof be extended to 8.00 pm on Saturday 5 March 2011 (for the purpose of M’s birthday) and the father deliver the child to the mother at the conclusion of the time outside of the kiosk of the service station situated at …; and

    e)as otherwise may be agreed between the parties and confirmed in writing.

12. This matter be adjourned for further mention before me in Court for the purpose of trial directions and following the receipt of the expert evidence provided for herein (as to paternity and medical matters) at 9.00 am on 4 May 2011.

13. The independent children’s lawyer notify my Associate in the event that the expert evidence contemplated by this Order may not be available by the mention date (4 May 2011).

14. The independent children’s lawyer publish to the parties his/her preliminary view of what final orders ought to be made in this proceeding following the receipt of the expert evidence and, if at all practicable, prior to the mention date.

15. Until further order the mother, the father and Mrs E Kingsford be, and are all, mutually restrained from causing permitting or suffering the child to be told of, or there to be any communication to the child which may indicate to her that there is any doubt about her paternity.

16. The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

17. That pursuant to sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

    AND IT IS NOTED that the dates of the first term school holiday for the school attended by the father’s stepchildren and by T coincide.

    AND IT IS FURTHER NOTED that Mrs E Kingsford was not a party to the proceeding but stood in the body of the Court and consented without reservation to the restraining order herein which affects her being made against her.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9459 of 2009

MR KINGSFORD

Applicant

And

MS KINGSFORD

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter concerns T, born in August 2004, and comes before me following the parties receiving the report prepared by Mr H dated 2 February 2011.  I have directed that the report remain on the court file as a family report received in these proceedings.  Ultimately, it will be the responsibility of the parties or the independent children’s lawyer to prove the report in evidence and for Mr H to be available for cross-examination, if need be, but these are not pressing concerns for the purpose of today’s hearing.

2. I have allocated this parenting dispute a final hearing. It will commence on 20 June 2011 and is currently the first case in the list.  It is anticipated that the father, who has previously been legally represented, will appear on his own behalf.  The mother is likely to continue to be represented with the assistance of legal aid funding.  I have requested that an independent children’s lawyer be appointed.

3. I have made certain orders today which alter the existing orders for the father to spend time with the child.  I will not repeat a history of the proceedings or the parents’ relationship. Those details are rehearsed thoroughly in certain documents, including the reasons for decision given by Senior Registrar FitzGibbon on 30 October 2009, the issues assessment by Mr S, family consultant, on 25 November 2009, the cross-examination of Mr S on 6 September 2010 (which is transcribed) and the report of Mr H dated 2 February 2011.

4. In Mr H’s report, he identifies the areas of dispute (page 3) as being:-

   a)whether T attends the C primary school or the B primary school;

   b)medical immunisation vs homeoprophylaxis treatment for the child;

   c)the frequency and duration of the time that the child is to spend with the father.

   The disputes are correctly identified, but the actual issue in the case is the chronic parental conflict which exists between the mother on the one hand and the father and the father’s wife on the other.  The entrenched parental conflict is the matter to be considered first and foremost when the Court comes to assess, as it will, the benefits for the child of having a meaningful relationship with the father, or at least the type of spend time regime which he proposes.

5. A number of matters were agreed upon by the parties today.

6. First, the father has stated that a friend recently brought it to his attention that he may not be the child’s biological father.  He seeks paternity testing.  The mother maintains that he is the father but, sensibly, has consented to the testing taking place.  It is to be at the initial expense of the father, although he has liberty to make application at the final hearing for the mother to contribute to the cost.  The selection of a laboratory that is accredited by National Association of Testing Authorities for the purpose of carrying out parentage testing will be a matter for the independent children’s lawyer.

7. Second, the parties have embraced one component of Mr H’s suggestion that they “seek the opinion of a specialist paediatrician” who will “address the efficacy or otherwise of [medical immunisation and homeoprophylaxis] and the implications for [the child] if continuing or discontinuing either approach”.  I will require the independent children’s lawyer to appoint a paediatrician to give that expert evidence and he or she will be a single expert witness.  Each of the parties has liberty to apply to the Court if they disagree with the independent children’s lawyer’s choice, by making an application prior to the expert evidence being adduced.  Of course, after the evidence of the single expert witness is adduced, each party may exercise their rights to seek leave of the Court to call further or other expert evidence.

8. Third, the parties agree that there should be provision for holiday time in the forthcoming school term holidays.  Both T’s school and the school which the father’s two stepchildren attend have identical holidays.  However, the father and his wife are currently unable to specify the dates that they will have the father’s stepchildren.  The father seeks seven days in which to nominate suitable dates to the mother.  The mother agrees.  The dates nominated, which are to be five consecutive days, will be the times that the father is entitled to spend with the child.  The arrangements for alternate weekends and alternate week time are suspended during school term holidays.

9. Fourth, the parties agree that the child’s regime of time with the father on Thursday through to Friday each alternate week is to commence tomorrow and her alternate weekend time with the father is to commence on 25 February 2011.

10. Fifth, given that paternity is now raised as an issue, neither party opposes an order that no one communicate to the child that there is any doubt about her paternity.  This injunction will last until my determination of the matter, that is, after I have delivered the decision or made final orders in the context of a final hearing.

    ORDERS DELIVERED

11. The parties more or less agree that the alternate weekend time continues from Friday through to Sunday.  The changeover point for that time is a Contact Centre.

12. An issue arises as to the time that the child is to spend with the father in his “off week”, which brings into focus many of the areas of dispute that Mr H identified.  The current order, which states that the child’s time with the father concludes on Friday afternoon, was predicated on the child not attending school on Fridays.

13. The father proposes that he continue to have the child from Thursday afternoon, when he collects her at the Contact Centre, until the commencement of her school day on Friday morning.  However, he does not want to drive her from his home in the northeastern suburbs to her school in the inner north.  The father works from home as a consultant and says that he sees his clients on mornings and evenings.  He says that if he is required to travel to the C School, that would take “three hours out of [his] day”.  His wife is currently a full time mother, but will shortly return to work as a nurse.  The father proposes that the parties meet at a halfway point, being a service station, before school on Friday.

14. The father’s alternative proposal is that the Thursday time be extended through to Monday morning so that he would have four consecutive nights a fortnight with the child, in lieu of any time with her in the alternative week.  The changeover point would still be the service station.  When I pointed out to the father that this would significantly decrease the frequency with which the child sees him, he did not press this alternative proposal.

15. The mother’s proposal is that the time provided in the order of 11 December 2009 (paragraph 2(f)) conclude at the commencement of the child’s school day on Friday and that the father be responsible for delivering the child to school in C.

16. As with all parenting disputes, the best interests of the child is the paramount consideration.

17. At this interim hearing I am unable to make findings about contested matters of fact.  I also have less insight into the dynamics between the parents, their motives and what impact the two proposals would have upon the child, than I expect to have following the evidence being tested.  Today I will just do the best that I can.

18. Neither parent contends that it is not in the child’s interests to continue to have a meaningful relationship with each parent.  The parties are in dispute over the mother’s view that the time sought by the father is too long and the father’s (and stepmother’s) view that the location of the child’s school in relation to his home makes frequent involvement impracticable.

19. There are no issues of family violence or child abuse.  However, Mr H and Mr S before him, have identified that the chronic parental conflict poses a significant and dire risk to the child’s psychological functioning now and even more so in the future. 

20. The parents have read Mr H’s report and Mr S’s assessment and have listened to Mr S’s cross-examination.  Accordingly, they are on notice that exposing the child to this conflict will result in psychological deficits and personality difficulties for the child in the future, and make her a less happy and competent child than she otherwise would be.  Mr H has opined that the triangulation of the child “between the different parenting philosophies of these two strong willed women”, being the mother and the stepmother, who are jostling for “initiative and control over the arrangements and philosophical guidelines of [the child’s] life” (at page 11), leads him to conclude that:-

    “The prognosis for [the child’s] ongoing psychological and emotional health is poor if the parties fail to reach a rapprochement and come to terms with the need for a more co-operative and authentic approach to the joint parenting of [the child].”

21. My sincere hope is that in the lead up to the final hearing, the parties remember that what is at stake is the child’s emotional wellbeing and her perception of relationships into the future, rather than homeoprophylaxis treatment or long car rides to school.  Likewise, it is not a contest between two “strong willed” mothers, but a determination of how the child can best be parented, having regard to the proficiencies and deficiencies of her parents and her stepmother.  I refer to deficiencies because there is no indication today that any of the adults are likely to change in this regard.

22. I take into account the various additional considerations which are relevant to this matter. It is through the perspectives, which are set out in s 60CC(3) of the Family Law Act1975 (Cth), that I decide what is in her best interests.

23. The child wants to spend more time with her father.  Per the current regime she sees him on a weekly basis.  I am prepared to infer that it is not in her best interests at this point for her to spend any less time than she currently has with the father or to arrange the time so that it is less frequent.  There may be some merit to considering a block period of Thursday to Monday at a final hearing, however, at the moment I do not want reduce by half the number of times that the child sees her father each fortnight.  I fear that the child could interpret a reduction in frequency as being somewhat punitive, and she may think that it is a consequence of her mother maintaining her enrolment at school in C.  At six years of age, the child may not be able to process the fact that she is seeing more of her father on one weekend as some form of compensation for not seeing him at all during the alternative week.

24. The expert evidence thus far indicates that the child has an appropriate relationship with each of her parents and that she has a relationship with her stepmother which is of benefit to her.  There are three children in the father’s household, that is, his two stepchildren and M, who is the child of his current relationship with the stepmother.  T would be deprived of seeing these children on a weekly basis if I were to introduce a consecutive four night per fortnight regime at this stage.

25. I take into account the willingness and ability of each of the parents to facilitate and encourage a relationship between the child and the other parent.  The difficulty in this case is the chronic conflict.  I suspect, but am unable to say definitively, that this conflict has its origins in the personalities of the parents.  I am not convinced that the parents are motivated to act as they do because they wish to cut the other parent out of the child’s life.

26. Section 60CC(3)(e) requires me to take into account the practical difficulty and expense of the child spending time and communicating with the father and whether that difficulty will substantially affect her right to maintain that relationship. One of the disputes revolves around the travelling time between the father’s residence and the child’s current school. The father’s household is in the outer northeastern suburbs. The mother’s household is in the eastern suburbs. Pursuant to a decision of this court, the child attends school in the inner suburbs. Also pursuant to orders of this court, although sought by consent, the contact changeovers occur at a contact centre. As indicated, the father is a self-employed consultant. He wants the child to attend a school at B as this would make it easier for him to take the child to and from school and consequentially, he says, allow him to increase his involvement in the child’s life.

27. The mother successfully opposed the child enrolling at the B school on the basis that she is the primary carer of the child and the B school is inconveniently located for her.

28. It is apparent from watching the dynamics of the father and the stepmother in court as he gets instructions from her about what is feasible, that the issue of transporting the child to school in C is very important.  I accept that it is going to be very difficult for him.  He does not, however, say that he won’t do it.

    RECORDED   :   NOT TRANSCRIBED

29. Counsel for the mother submits that between now and the final hearing date in June the father only has to deliver the child to school in C on Friday mornings a handful of times.  In broad terms, I think that is correct.  The difficulty is that the travel arrangements are an enormous source of conflict and aggravation between the parents’ households.  Taking all matters into account, I am satisfied that on an interim basis, the difficulties experienced by the father, both personally because of the conflict and professionally because of the time away from his workplace, are less important then the child being able to see him each week and for them to have time alone in the car as he delivers her to school.

30. The final hearing is in June, but of course, the final determination may follow some weeks or months thereafter when a decision is delivered.  I take into account the capacity of each of the parents and other people, including the stepmother, to provide for the child’s needs, including her emotional and intellectual needs.  In this respect, I mention again the chronic parental conflict which extends beyond the parents to the stepmother.  That represents a significant deficit in both parents’ capacity to provide appropriately for the child’s emotional needs.

1. I should mention now that the father’s case is that he will continue to maintain a relationship and spend time with the child, even if he is not her biological father.  Ultimately, if the spend-time arrangements are not ordered in the terms the father seeks, or the child remains at her current school, he does not envisage that he will cease being able to spend time with her. 

2. An illuminating example of the extent of parental conflict arises from the parents’ plans for the child to spend additional time with the father on a week that she would usually stay in his care until Friday morning.  The child’s youngest sister, M, has a birthday party on the evening of Saturday, 5 March 2011, until 8 pm, which the child is going to attend.  The party finishes at 7 pm and the parties agreed that the child’s changeover will occur at 8 pm, to allow her to farewell guests and the father to leave his household in an orderly way.  The mother proposed that the car park of the contact centre be the changeover point.  The father said he would prefer a well lit, public place.  He said that he would not be happy leaving the child in a dark car park at 8 o’clock at night because he understood that the mother would not want to see him when he dropped the child off.  I did not ask counsel for the mother what her client sought occur at the car park, although I note that the contact centre would be closed at that time.  In my view it would be bizarre if a child has to walk by herself from one parent’s car to the other, so that the parents can remain out of each other’s sight.  This is a potent example of what this little girl could have to endure to accommodate the conflict between her parents and their households. 

3. Taking all relevant matters into account, I am satisfied that it is in the child’s best interests to broadly continue with the current arrangements, with some alteration to account for the fact that this year she attends school on Friday.  This puts the father, and therefore his household, to some inconvenience on that Friday morning each fortnight, however I am satisfied that this is an inconvenience which the child’s best interests require he accommodate, at least until the matter is finally disposed of.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 February 2011.

Associate:

Date: 21 February 2011