Kirkpatrick and Gerces

[2009] FamCA 453

FAMILY COURT OF AUSTRALIA

KIRKPATRICK & GERCES [2009] FamCA 453

FAMILY LAW – CHILDREN – whether in the best interests to order supervised periods of time with the father – the terms of increased periods of time with him

Family Law Act 1975 (Cth.) ss 60CA, 60CC, 65L

APPLICANT: Mr Kirkpatrick

RESPONDENT: Ms Gerces

FILE NUMBER: BRC 7282 of 2007

DATE DELIVERED: 21 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 19, 21 May 2009

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

Orders

1. That the child of the parties’ relationship … born … March 2005 (“the child”) live with the mother.

2. That the parties shall note that breaching any of the parenting orders made this day may result in the consequences set out in the “Fact Sheet – Parenting Orders” annexed to these Orders.

3. That the father may spend periods of time with the child as follows:

   (a)For the initial period of six weeks:

   (i)Each Saturday from 9.00am until 4.00pm at the G Contact Centre as soon as the services at that contact centre become available, or in the event that there is likely to be delay of some weeks, at such other contact centre as the parties may agree upon AND each party may utilise the services of a family consultant to make appropriate enquiries.

   (ii)After the first three occasions of Saturdays at the contact centre the father may introduce the child to his partner, Ms Z who may be present and it is desirable that she should be present for the remaining three week period.

   (c)For the next period of four weeks:

   (i)Upon the completion of the six week period at a contact centre referred to in Orders 3(a)(i) and 3(a)(ii) the child spend each Saturday with the father in his care together with his partner from 9.00am until 5.00pm.

   (ii)For the purpose of Order 3(c)(i) the father shall collect the child from the mother at Hungry Jacks, E and return the child to the mother at Hungry Jacks, E at the conclusion of that period.

   (d)At the conclusion of the last-mentioned period contained in Order 3(c) the child spend each alternate weekend in the care of the father from Saturday 9.00am until Sunday 5.00pm and for the purpose of changeover of the care of the child that such changeover take place at Hungry Jacks, E.

4. That upon the commencement of the first school term in 2010 Order 3(d) only take effect during each school term.

5. That during school holidays at the conclusion of each school term the child may be in the care of the father for alternate weeks:

   (a)during each even numbered year commencing from the beginning of the first week, and

   (b)during odd numbered years commencing from the beginning of the second week,

   PROVIDED THAT so far as the first week is concerned it shall commence at 9.00am on the first full day of school holidays and in relation to the last week of school holidays it shall conclude at 9.00am on the last day prior to the first day of the new school term.

6. That the father have the care of the child each alternate Christmas period from Christmas Eve 5.00pm until 2.00am Christmas Day the first of such occasions to take place in 2009 and alternately thereafter from 2.00pm Christmas Day until 9.00am Boxing Day.

7. That during school holidays each of the parties may have a telephone call with the child each day that the child is in the care of the other party between the hours of 9.00am and 6.00pm AND THAT one party or the other may initiate the appropriate telephone call PROVIDED THAT if the child is unavailable to take the call then the party in whose care the child is shall ensure that the call from the other party is returned that day as soon as possible.

8. That the father have the care of the child on his birthday should it not fall during a period when the child would otherwise be with the father as follows:

   (a)      on a school day from the conclusion of school until 6.00pm that day.

   (b)on a weekend for a period of three (3) hours as agreed between the parties or failing agreement as nominated by the mother in writing 14 days in advance.

9. That the parties shall keep each other informed of his or her current mobile and landline telephone numbers and that such numbers be kept operative and open throughout each school holiday period that the child is in the care of one party or the other.

10. That in the event of the child becoming seriously ill or injured then the party in whose care the child is shall inform the other party as soon as possible of the nature of such illness or injury and the name, address and telephone number of any relevant hospital or medical practitioner.

11. That each of the parties is restrained from discussing court proceedings in this or any other court in which both or either party is or has been a party to or in the presence or hearing of the child and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that manner.

12. That the parties may vary the arrangements for care of the child whether that involves reduced, substituted or increased periods of time as the parties may agree upon from time to time.

13. That order pursuant to s.65L of the Act a family consultant nominated by the Manager Child Dispute Services in the Brisbane Registry of the Court provide assistance to the parties or either of them as is reasonably requested by such party or parties in relation to compliance with any of the parenting orders made this day.

14. That all outstanding applications of the parties are dismissed.

15. That the proceedings be removed from the Active Pending Cases List.

NOTATIONS

A.That the father now proposes to increase his hours of work as well as investigating a return to his previous occupational career.

B.That as a consequence of one or more of the matters referred in the last-mentioned notation, the father expects to have an increased net income with the potential to pay a larger amount of child support.

C.That the father will inform the Child Support Agency of the abovementioned notations at its next assessment conference.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7282 of 2007

MR KIRPATRICK

Applicant

And

MS GERCES

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings were listed before me on 19 May 2009.  The issues for determination were pending applications by each of the parties.

2. The father sought a further recovery order or, alternatively implementation of a previous recovery order pursuant to his Application filed on 2 February 2009.

3. The mother sought orders providing for dismissal of the father’s application, variation of consent parenting Orders made on 25 August 2008, child support and other ancillary matters.

4. Each of the parties relied on affidavits that each had filed and sworn.  The affidavit of the father was filed on 2 February 2009.  The affidavit of the mother was filed on 25 February 2009.

5. Each of the parties has been unrepresented before me.  I have read their affidavits, the Application and the Response to which I have referred.  Further documents were tendered before me, which included copies of text messages passing between the parties and email.  In addition, I have read the Family Report dated 1 August 2008 which preceded the parenting orders made 25 August 2008.

6. During the course of the hearing on 19 May 2009 I raised with the parties the prospect of concentration, on a constructive basis, on future parenting arrangements in relation to their child who is the subject of the proceeding.  Each of the parties agreed that it was time for a constructive, sensitive and practical approach to future parenting given the history of high conflict between them and the intensity of litigation not only in this Court but also in the Queensland Magistrates Court.

7. To their credit each cooperated in that regard.  I made arrangements, with the parties’ consent, for them to engage in urgent mediation with a family consultant which took place early in the afternoon of 19 May 2009.  The family consultant subsequently gave oral evidence.

8. As a consequence, the parties continued to embark on a constructive approach to the determination of child-related issues.  After each party had given oral evidence of issues that each required to be determined, against a background of agreement to which I will refer with cross-examination that each embarked upon, I adjourned the matter at 4 pm on 19 May 2009.  The adjournment was necessary from a practical viewpoint to enable the mother to travel to collect the child in time.  I listed these proceedings on a part-heard basis before me today, being a date and time suitable to the parties so that their oral submissions could be made.

9. The child who is the subject of the proceedings is a son born in March 2005.  He has recently attained the age of 4 years.  He lives with the mother.

10. The parties had a relatively short period of cohabitation marked by periods of separation until they finally separated.  Following the separation of the parties there have been proceedings for domestic violence orders in the Magistrates Court.  In the last few years four such orders have been made.  The current order made on 11 February 2009 against the father is for a term of two years.  That order is subject to such orders that may be made in this Court.  As I emphasised to the parties, any parenting order made in this Court does not supersede the terms and conditions of the domestic violence order made on 11 February 2009 with the exception that to the extent to which it conflicts with an order made by this Court, then the latter prevails.

11. The parties informed me on 19 May 2009 that they had reached agreement as follows:

    (a)      that the child live with the mother;

    (b)      that the child spend periods of time with the father; and

    (c)that the periods of time be tailored to provide for an escalating regime of periods of time culminating with the child spending time with the father on an overnight basis.

    Their disagreement was in relation to the following:

    (a)as to whether or not there should be supervised periods of time at the G Contact Centre;

    (b)if the answer is in the affirmative to (a) then the period of time and the hours which should be stipulated for that purpose;

    (c)the elements of the graduated period of time that otherwise should be imposed; and

    (d)whether or not an order should be made that the father enrol in and complete an anger management course.

12. During submissions made today the parties reached further agreement as follows:

    (a)that there should be alternate periods of time that the child spends with each of the parties in that for one period on an alternating basis over Christmas it be from 5.00 pm Christmas Eve until 2.00 pm on Christmas Day;

    (b) that the alternating period otherwise with the father be from 2.00 pm Christmas Day until 9.00 am or 10.00 am on Boxing Day;

    (c)that on the assumption that the child attends school next year and is progressing satisfactorily in terms of his emotional development and relationship with each of the parties, that there should be a division of school holiday time as between each of them.

13. However, an issue remains as to the block of time in the school holidays that should be spent by the child with the father.  The father’s proposal is that it be on a week-about basis; the mother's proposal is that there be alternating blocks of four days and three days in each relevant week.

14. So far as the child’s birthday is concerned the issue ultimately was whether or not the child should spend a period of time overnight on a weekday with the father as opposed to a more limited time after school as proposed by the mother. 

15. The parties did agree that an order should be made restraining them from discussing the proceedings or making any adverse or critical comment about each other to or in the presence or hearing of the child.

16. The evidence in the circumstances was limited in that the matter essentially proceeded consistent with the Less Adversarial Trial procedure that would otherwise apply for the first day of a final hearing in relation to parenting matters.

17. As I have previously mentioned or observed, it is very much to the credit of the father and the mother that they were prepared to concentrate on a practical constructive approach to future parenting of the child, rather than remain immersed in the quagmire of allegations and counter-allegations that have marked their relationship in recent times as demonstrated by the nature and extent of the litigation that has taken place.

Relevant legal principles

1. The principles that I must apply in these proceedings are as follows.

2. Section 60CA provides that a parenting order should be made if it is in the best interests of a child to do so and that consideration is the paramount consideration.  Consequently, that is the focus that these proceedings and orders must have.

3. The best interests of a child are determined by having regard to relevant matters under section 60CC.  The primary considerations that I must take into account are:

   “(a)the benefit to the child of a meaningful relationship with both of the child’s  parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

4. There are a number of other considerations which are described as additional considerations as a result of the extensive amendments to the Family Law Act that came into operation on 1 July 2006.

5. I will refer to those matters to the extent to which it is relevant to do so, having regard to the change in direction in which this hearing has commenced and the issues that emerged, including those matters upon which the parties have fortunately reached agreement as well as the limitations of the evidence.

6. In addition, I am to be guided by the fact that a child should have the benefit of each parent’s involvement in his or her physical and emotional development, education and general progress in life.  These matters are referred to in the course of similar proceedings but often without referring to the overriding exception which must apply and that is, whether it is in a child’s best interests to implement what might otherwise be a worthwhile approach.

7. The family report, although aged, makes it clear that the child’s primary attachment has been to the mother, but at the same time has demonstrated a substantial attachment to the father, moved easily between the parents and, implicitly, there has been a view expressed by the child to spend substantial periods of time with each of them.  It follows from that evidence, which I accept, that the child has had a loving relationship with each of the parties.

8. The difficulties that have emerged have been overlaid by allegations of fault-finding by one parent against the other, the child not having spent any time or had any communication with the father since in or about the end of 2008, the domestic violence order, and the acceleration of the proceedings in this Court.

9. Consequently, each party recognises that it is in the child’s best interests for there to be more sensitive gradual periods of time for the child to be reintroduced into the care of the father, leading to ultimately overnight periods of time with him.

The capacity of the parties to provide for the needs of the child including physical, emotional, and intellectual needs

1. So far as the capacity of the parties to provide for the needs of the child including physical, emotional, and intellectual needs, there is no issue raised in relation to those matters with the following exceptions.

2. The evidence strongly suggests that the conflicted parenting relationship that the parties have has generated, if not directly then indirectly, stress and tension for a very young child. Each blames the other for that situation having developed.

3. In addition, so far as the child's physical needs are concerned, it is a matter of much concern that the father’s dedication to the welfare of the child has fallen short in terms of a financial commitment which does not exceed, in accordance with a child support assessment, $4.00 per week with significant arrears.

4. His submission in relation to that is that his previous career had come to an end, his financial situation had been stressed and that he has recently been employed as a security officer.  His net income assessed by a comparison with his expenses has been such that he has had, ultimately, little funds for discretionary spending.

5. Upon my raising with him his financial capacity to meet increased expenses for a child if the child spent weekend periods with him, he informed me that he has flexibility in his arrangement with his employer so that he can increase his hours of work once the periods of time that he will be able to spend with the child have been clarified. In addition, he will then proceed also to investigate returning to his previous occupational career.

6. He agreed that he will inform the Child Support Agency, at the next assessment conference that takes place, of those developments and had no objection to me noting those matters as notations to orders that will ultimately be made so that the Child Support Agency will also have a formal objective record of those concessions.

7. I have no reason to doubt that the father will endeavour to improve his financial position accordingly, and as a result what amounts to paltry child support should be able to be significantly increased.  I informed the father and he acknowledged that his dedication to the child leaves him with the option of demonstrating it in a financial basis by increasing the payments that he makes for the child's support without waiting for a Child Support Assessment.

8. With regard to a change and the effect of a change in the circumstances of the child by spending further periods of time with the father, this is a matter which goes very much to the heart of the proceedings before me.

9. The father has repartnered.  His partner is now his fiancée, and his evidence, which I accept, is that they propose to marry in the near future.  I have not heard evidence from that partner whose name is Ms Z, 24 years of age, a student, and who also carries on a business activity.  I am informed by the father she does not have children.

10. The father’s partner has not yet met the child, let alone become acquainted with him.  The father recognises that that will need to be part of the necessary process given that she will potentially be a significant adult engaged, if only indirectly, in the care of a young child.  It is proposed that she will attend with the father from the beginning of the initial periods that the child spends with him.  The father states that in the event that the child does not react favourably to her, there will be a break in such arrangements and a resumption of it when the child appears to be more settled.

Family violence

1. With regard to family violence, there have been allegations made by the mother.  The father for his part claims that he was provoked or harassed into his reactions at times due to the mother failing to comply with Court orders.  The mother for her part puts forward evidence to give her version of those events.  However, the objective facts are that there have been four domestic violence orders made in recent times and one is still current.

2. As I explained to the father, regardless of his views as to whether such proceedings are easily instituted and result in orders that implicitly have no real foundation, nonetheless they are matters which a different Court has adjudicated upon and it would seem remarkable that not just one, but four orders have been made on weak or scant evidence in the Magistrates Court.  The fact remains that there is a current order which will expire in early 2011.

1. Otherwise, it seems to me that the evidence does not support that there is now likely to be, on the balance of probabilities, a re-emergence of family violence.  In any event, should that unfortunately be the case then both parties are aware that a reporting can be made to the police and it is a matter for them to exercise their responsibilities by causing any further proceedings to be instituted as they consider appropriate.

2. Hopefully, for the sake of the parties as well as the child, the parties’ demonstration of a more constructive and sensitive approach to parenting will carry the day without the need for a re-continuation of the allegations and counter-allegations that have been made, including during last year.

3. So far as the latter period of last year is concerned I accept the father’s submission that Exhibit 2 contains material of text messages by the mother to the father which in part are inconsistent with the mother’s allegations of fear of violence from the father.

Conclusion

1. I have determined that in relation to the issues between them, that now remain for ultimate consideration and determination, that they will be decided as follows for the reasons that I will give:

   (a)that in relation to contact changeover, that such changeover take place prior to any weekend periods of time that the father may spend with the child at the G Contact Centre; and

   (b)that for the purpose of reintroducing the child into his relationship with the father and also to become acquainted with the father’s partner that such periods of time take place on a supervised basis at the contact centre for a period of six weeks.

2. The initial three weeks should be with the father alone.  Thereafter the father may and should have his partner with him so that the child, having hopefully been satisfactorily reintroduced to the father and enjoyed periods of time with him albeit not in the most ideal physical environment, will then be able to become acquainted with the father’s partner.

3. I appreciate that from the father’s viewpoint, six weeks may seem a long period of time.  From the mother’s viewpoint it may well be regarded as too short a time.  However, I have to consider the best interests of the child as opposed to what each party understandably sees as their important role.

4. I cannot lose sight of the fact that the child is still very young.  He has not spent any time or had communication with the father this year.  That is a long period of time for a child of his age.  He needs to have a relatively short period of time to not only become reacquainted with the father, but to enjoy and become relaxed in his relationship with him.  The same observations apply so far as the father’s partner is concerned, whom the child has not previously met.

5. The inconvenience is insignificant of what might be six weeks at a contact centre compared to the many years that lie ahead for the father, and on the evidence before me his partner, to be engaged in the care of the child.  It is important to take into account not only the short term, but the long term effect of proposed orders and that is the approach that I will take.

6. In addition, I am guided by the need, as I see it, to minimise any adverse risk to the child’s emotional reactions, rather than take a more liberal approach.  Again, my conclusion is that in terms of the child, as opposed to the father or mother, he will benefit from that type of introduction.  That should also provide assurance to the mother who I accept has a genuine anxiety as to the child’s reaction and settling in, in the relationship with the father given the comparatively long period of time that has passed since the child spent any time with the father.

7. The benefit of a contact centre will be that the staff will be able to monitor the interaction that will take place and note any disturbing features.  That will provide a record on an objective basis that the parties may be able to access or have reported to them by the staff which hopefully will provide some measure of reassurance to them.

8. In addition, after that six-week period has expired I will provide for a further period of four weeks whereby the child spends each Saturday with the father and, implicitly his partner, at the father’s home commencing at a changeover taking place at the agreed place namely Hungry Jack’s, E, at 9.00 am and concluding at 5.00 pm.

9. That period of time will be for a further period of four weeks.  Following the conclusion of that period of time, there will then be a move to more extended periods of time represented by each alternate weekend from 9.00 am on Saturday concluding at 5.00 pm on Sunday, changeover to also take place at Hungry Jack's, E.

10. There is the prospect of the child enrolling in school, progressing satisfactorily both at school and in his continued emotional development and confidence as a young person, leading to consideration of school holiday time to be spent by him with the father.  As I have previously noted, the father's proposal is that the periods of time be on a week-about basis.  The mother's proposal is that there be alternate blocks of four days and three days.

11. In view of the period which will pass before the first school holiday period which will be at the conclusion of the first school term 2010, the child’s relationship should be settled and have all the aspects of it which could only be to his benefit so far as the care engaged in and the activities provided for the child by the father.  Consequently, I am of the conclusion that the school holiday period should be on a week-about basis.  That will apply for each school holiday period at the conclusion of each school term.

12. So far as birthdays are concerned, I accept the submission made by the mother that implicitly when the child is attending school for the first time during next year it is important for him to have stability during the week and routine.  So much was emphasised also in the Family Report.  There is no evidence before me to suggest anything to the contrary.

13. Consequently, the order I will make is that should the child’s birthday fall on a school day the relevant period of time will be from the conclusion of school until 6.00 pm that day.  That will enable the father to spend an appropriate period of time and for the child to have the benefit of that before returning to the mother for him to be bathed and to get ready for school the next day.  There shall be a three hour period with the father if the child’s birthday falls on a weekend.

14. As should be obvious to mature sensible parents, the arrangements that are suitable for a child of 4 and next year 5 years old may no longer be suitable for the child as he gets older.  That, of course, will be due to change in his reasonable needs, activities, including sport and other extracurricular activities, and a change in his interests.  It may well be that the child will sincerely and genuinely express a view to spend more or less time with one parent as opposed to the other.

15. The parents should be alert to that and not regard it as a slight or an insult that the child may wish to spend periods of time which changes during a year, or as he gets older, or having regard to his nature and range of his activities.  They should be sensible enough to have flexibility for that purpose, rather than counting the number of days or nights that a child might have spent with one or the other and whether that automatically requires some form of compensation as if it was a commercial arrangement to form make-up time.

16. After all, the parents should be child-focussed, rather than on what is important for the parent to demonstrate that he or she is having what he or she regards as an equal or other significant time with the child.  That will also ensure that the child feels relaxed and is able to genuinely express his feelings without fear of hurting the feelings of the parent, or being in fear of a parent’s reaction.  No doubt the parents would tell me that they realise this and are happy to proceed accordingly.

17. Sadly, in court cases the experience sometimes is that words are easily spoken but when it comes to putting them into action it is an entirely different matter.  Time will tell whether the father and the mother are truly capable of entering into arrangements from time to time that best suit their child, even if there is some inconvenience to each of them.  Should they be able to do that, then of course the benefits for the child will be immense and indirectly be of benefit to the parents.

18. So far as the Christmas period is concerned, as I have already noted, the parties have reached agreement and that will be reflected in the orders.

19. I am not satisfied that it is proper to make an order that the father complete an anger management course.  He has shown a constructive sensible approach in his evidence and is aware of the current domestic violence order against him.

20. I raised with the parties the prospect of an order being made under section 65L of the Family Law Act.  That is a section which enables the family consultant to provide guidance to parents in the implementation of orders.  I propose to make such an order so it can be availed of, if necessary, by each of the parties rather than having a reaction of immediately launching into litigation should they have a disagreement.  The parties will need to be aware that that facility is not open to be a tool of manipulation for the purpose of future court proceedings, but is made available to assist them in helping them to resolve any dispute about parenting which may arise.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  28 May 2009