Kramer and Kramer

[2019] FCCA 494

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRAMER & KRAMER [2019] FCCA 494

Catchwords:
FAMILY LAW – Parenting – best interests of the child.

Legislation:

Family Law Act 1975, ss.60CA, 60CC

Applicant: MS KRAMER

Respondent: MR KRAMER

File Number: MLC 10136 of 2018

Judgment of: Judge Small

Hearing date: 14 February 2019

Date of Last Submission: 14 February 2019

Delivered at: Melbourne

Delivered on: 14 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Jenkins

Solicitors for the Applicant: Cahill And Rowe Family Law

Counsel for the Respondent: Ms Smallwood

Solicitors for the Respondent: Mills Oakley Lawyers

ORDERS

1. There be interim parenting Orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 14 February 2019 (“the Minute”).

2. The lawyers for the Applicant engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.

UNTIL FURTHER ORDER

1. Until further order, the children [X] born … 2008, [Y] … born … 2002 and [Z] born …2004 (“the children”) shall live with the mother.

2. The children shall spend time and communicate with the father:

   (a)During school terms

   (i)on each alternate weekend from the conclusion of school on Friday to 7.30 pm on Saturday for three visits commencing on 15 February 2019;

   (ii)thereafter, on each alternate weekend from the conclusion of school on Friday to the commencement of school Monday;

   (iii)each Wednesday, from the conclusion of school to 7:00 p.m;

   (b)for half of school holidays by agreement and, failing agreement, from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in Terms 1 and 3 and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of  the next school term in Term 2;

   (c)by telephone each Tuesday at 7:00 p.m. with the father to make the call to a number provided by the mother, and the mother to ensure that the children have access to a fully charged and working telephone, tablet or computer, that they are available to take the call, and that they have privacy during the call;

   (d)at such other times by agreement between the parties in writing;

   with [Y] and [Z] to engage in such time subject to their wishes.

3. The parties shall do all such acts and things and sign all documents as may be necessary for the parents and the children to engage in family therapy at Counselling in Town A and they shall comply with all directions of any therapist/s appointed to counsel the family.

4. If any of the children is unable to spend time with the father because of illness, the mother shall provide to the father, as soon as practicable, a medical certificate setting out the details of that illness and the reason why the child cannot spend time with the father. For the sake of clarity, a certificate which states that a child suffers from an illness which might keep him/her away from school does not, on its own, satisfy the requirements of this Order.

5. In circumstances where a party is unable to care for the children overnight, the other party shall afford him/her the first right of refusal to take care of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10136 of 2018

MS KRAMER

Applicant

And

MR KRAMER

Respondent

REASONS FOR JUDGMENT

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.

2. These are, for today’s purposes, parenting proceedings between Ms Kramer and Mr Kramer, and they are in relation to the three children of their marriage.  Those three children are [Y], who was born on … 2002, who is now almost 16 years and nine months old; [Z], who was born on … 2004 and who is, therefore, 14 years and five months old; and [X], who was born on … 2008 and who is, therefore, 10 years and seven months old.

3. The parents separated early in 2018.  Reading the material, it is not actually very clear whether it was 31 January or some time in early February, but it was around that time. The marriage ended when Mr Kramer left the family home. 

4. The mother’s evidence is that that was a devastating thing for her, that she was not expecting it, and that she and the children had been devastated by the separation.

5. When parents separate, for whatever reason, there is always grief; there is hurt; there is disappointment; there is anger; there are all of those things. And it seems to me that the best way to deal with those things is what I would call “offline” – that is, away from the family unit.

6. In other words, they are the couple’s feelings. They are the husband and the wife’s feelings about the severing of their couple relationship,   and they should be dealt with “offline”.

7. But they also have an ongoing relationship as parents.  They will be these children’s parents for the rest of their lives.  That is the reality.

8. The children are now nearly 17; almost 14 and a half, and 10 and three quarters.  What are they going to think when they are 20?  How are they going to look back on this time? 

9. Are they going to be saying, “Well, Mum and Dad’s breakup was a bit messy, and they did not like each other very much, and they probably do not like each other very much now, but they really tried to help us through that process, and now we have a good relationship with both of them,” or are they going to say, “Mum and Dad fought like cats and dogs over us.  We were stuck in the middle.  We were torn between them.  We love both of them, and neither of them would see that.  And we felt just torn apart”? 

10. Are you teaching them the lesson that relationships are about conflict, that when relationships break down, conflict is the way to deal with them?  I do not know.

11. What I do know is that there has been conflict in this family ever since the separation, and that conflict has not just been between mother and father; it has involved all three of the children. 

12. Now, I do not doubt for one moment that you both dearly love all three of your children. I do not doubt that for a second. But it would seem from the evidence before me that the children have been pulled into the feelings of the parties about the other parent. And as I said, the feelings of the couple as they separate need to be separated from their feelings as parents. And that does not seem to have happened here.

13. The parties did try to go to family therapy. They were all seen individually, I think, at Counselling in mid-year. That stopped – the wife says because the husband said it was too expensive and unnecessary, the husband say because he thought the counsellor was touting for business, and he did not think that was appropriate.  Whatever is the reason, it did not go further than that.

14. The matters that I need to decide today are quite distinct and quite discrete. 

15. The question is, first, whether I should make orders at all in relation to any time that [Y] and [Z] should spend with their father.  The mother says [Y] and [Z] do not want to spend time with their father; they are very angry with him; that they are hurt by his behaviour towards her, and they do not want to spend time with him.

16. The father says, “Well, if [Z] and [Y] were given the chance to have time with me, then they would do that. And yes, it might be uncomfortable for a while, but it would be okay in the end.”

17. The only independent evidence I have on this issue is from Ms B. The family report of Ms B, dated 3 January 2019, was annexed to an affidavit and filed on 8 February 2019. Ms B, in what I can only call a very comprehensive, thoughtful and considered report, has looked at this family very closely and thought much about what she says about them. 

18. She thinks that [Y] and [Z] would benefit from orders being made that they see their father. What she saw when she saw [Y] and [Z] with their mother was a close and loving relationship that she thinks has become too close.

19. She did not use the word, but what I heard her saying when I read that report was that she thinks the children – and particularly [Y] and [Z] – have become a bit enmeshed with their mother.  They do not really have a sense of where their mother ends and they begin in terms of how they feel about their father. And that is a shame.

20. I am not saying that the mother has done that deliberately. I am sure no mother would want to deliberately deprive their children of a relationship with their father that would be of benefit to the children. But when the mother was so upset and remains so upset, angry and distraught and hurt and disappointed – all of which are perfectly natural – what has happened here, according to Ms B, is that the children have been caught up in that so that they, in some sense, no longer know what they think and what they believe and what they feel.

21. One of the things that caught my attention in this report was the observation between the children and their father where, frankly, [Z] and [Y] “let him have it”. They told him exactly how they felt and what they thought of him. And he sat there and took it.  He did not try to defend himself. He did not try to dissuade them from the views they were expressing. He just sat there and took it and responded to them in a way that Ms B thought was absolutely appropriate. It would have been very easy to him to do exactly that, to be defensive, to say, “But you do not understand.” He did not do that. He did not try to defend himself, and I think that is greatly to his credit.

22. It is significant, I think, that Ms B points out that the girls did not just let off their head of steam and then leave the room; they stayed. They stayed for the whole time that was allotted for the time with their father. And they indicated to Ms B that it was probably not a forever thing that they did not want to see their Dad right now.

23. Counsel for the father says that they do not have permission to have a relationship with their father at the moment - that their mother is not giving them emotional permission because she does not feel disposed towards the father enough to let the children have that relationship. It would seem to me that that may well be the case. And again, I do not necessarily lay criticism at the mother’s feet for that. Emotions are, by their very nature, irrational, and sometimes, they get the better of us.

24. When I look at the legal aspects of this matter, the law is very clear. When I am making parenting orders, or considering making parenting orders, I must take the children’s best interests as my primary consideration. Paramount is the word that is used in the Act. Their best interests must be my paramount consideration. That is set out in black and white in section 60CA of the Family Law Act 1975 (Cth).

25. And then section 60CC provides 16 separate issues that I need to consider when I am looking at what is in a child’s best interest. If I went through every one of them in detail, we would be here till midnight, so I am not going to do that, but I certainly do want to look at the first two because they are called the primary considerations. And they are, on one hand, the benefit to a child of having a meaningful relationship with both that child’s parent’s, and the other is that I need to balance against that the need to protect a child from harm.

26. Now, there is no suggestion that these children are at risk in the care of their father – or their mother, for that matter. But the law requires me to look at those things as my first considerations. There is not a question of the children suffering harm. There is a question of whether their opportunity to have a meaningful relationship with their father and to derive the benefit from that is being diminished by the mother’s very understandable feelings of abandonment and betrayal and all the things that go with marriage breakdowns.

27. I have to say that at the moment, I cannot see that there is no benefit to the children in having a relationship with their father.  In fact, Ms B says very clearly that there is such a benefit, that the children themselves have said that there are good things about their father that they benefit from. 

28. The first of what are called “Additional Considerations” – they are not called secondary considerations, but Additional Considerations – is the views of the children.

29. Now, we know that the children are saying that they do not want to spend time, or they do not want to spend time overnight or whatever.  But it seems to me that the children took a big risk when they “let fly” at their father that day. It is not easy for children to confront a parent about exactly how they feel. And the fact that they were able to do that says to me that they actually feel quite safe with him. They did not think he was going to explode at them. They did not think he was going to blame them for how they felt. They felt safe in telling him. So their views as they are said are not necessarily supported by how they behave. And Ms B, too, commented on that.

30. I need to look at the nature of the relationship between the parent and the child, and it must be said that the relationships between the father and [Y] and [Z] particularly, but also between [X] and his father, are somewhat fractured and need repair. I think both parents accept that, that the relationships need repair. And there is no suggestion that there can never be a close and loving and warm relationship between the children and both of their parents.

31. I also need to consider the issue of splitting siblings. That is a specific thing that I need to consider under section 60CC (3)(d), which says that I need to look at the likely effect of any changes in the child’s circumstances, particularly including the likely effect on a child of separation from one of his or her parents and any other child or person who the child has been living with.

32. I think it is very sad that the children are being separated.  And I was particularly touched by the description – and I cannot remember it was in the mother’s affidavit or Ms B’s report – of [X] coming back and sharing what he had received from his father with his sisters because he felt they were missing out. 

33. That shows a little boy who is very well-attuned to his emotions and to his sisters’ needs, and that must be a credit to both parents, can I say, that they have a young boy who can do that. Most 10 year olds would be saying, “Mine.  All mine”, but not [X]. [X] shared it with his sisters.  He clearly feels that separation and that he has to make up for it in some way, and that is a big burden to place on a 10 year old.

34. I need to look at the practical difficulty and expense of parents spending time with children. Now, it does not seem to be an issue in this case as nobody has mentioned it.

35. I need to look at the parents’ capacity to meet the child’s needs, not only their material needs, but their emotional needs, their intellectual needs.  And those things are very important, and often they are, somehow, the most important things that come up. 

36. There is no suggestion that there is any problem with both parents providing for these children materially. Of course they do.  They are well-fed; they are well-clothed; they are well-housed; they go to school. All of that is taken care of.

37. It is in the emotional needs area that I have some concerns. And I share those concerns with Ms B when she says that she is worried – what she is basically saying is she is really worried about these children’s psychological development if they are feeling like they have to protect their mother and reject their father as a result of protecting their mother. That is, I think, in short compass, what she says.  

38. I do not think that she lays – and I certainly am not laying blame here. I am just saying that my concern has to be for the children.  And I think it is very sad that these children have been placed in a situation, for whatever reason and by whomever, where they feel they have to choose.  That is a terrible burden to place on children - that they have to choose between one parent and another.

39. I also need to take notice of any family violence and any family violence order that is in place. And I simply note that there is a family violence order in place against the mother that will last, I think, until May this year, that that family violence order was made without any testing of evidence but that the mother did tell Ms B that she had on at least one occasion slapped the father’s face.

40. I also need to look at the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.

41. Parents have an enormous responsibility in our community. They also have that responsibility under the Family Law Act. In fact, it is a great misconception of the Family Law Act that parents have rights under the Family Law Act. They do not. Nowhere in the Family Law Act does it talk about parents’ rights at all. It talks about children’s rights, the children’s right to have a meaningful relationship with both their parents and the children’s right to be kept safe from harm, for instance. There are no rights for parents.

42. I think in this case there has been evidence that both parents, as I have said, love these children dearly.  They just have not been able, for whatever reason, to make the separation the least stressful for the children as it might have been, and they each blame the other for that.

43. Now, this is an interim hearing.  I cannot make findings of fact in an interim hearing.  I cannot say for sure this happened or that happened.  I can only conduct that exercise that after the parties have been in the witness box and been cross-examined, after which I can say, “Well, on that evidence and on the impression I get from them, I think they are probably more correct in their interpretation”.  I cannot do that today.  So I am not saying anything about that except that these children have not only a moral and social right, they have a legal right to have a meaningful relationship with both of their parents.

44. Ms B was very particular in saying that I ought to make orders for the girls, and that was because – well, the way Ms Smallwood, for the father, put it, was that the girls do not have emotional permission to have a relationship with their father and that if there is an order saying that they must, then that is to be blamed on me and not on their father.  There is some truth to that, and there is some force to that argument; however, we have here two still very angry and very distressed girls.

45. My view, when I take all of those things into account, is that I ought to make orders for [Y] and [Z] and [X] and that they ought to be the same orders, but [Y] and [Z]’s participation should be subject to their wishes. 

46. So I will make an order that the children, [X], and [Y] and [Z] subject to [Y] and [Z]’s wishes, are to spend time with their father at particular times so that they know when they are expected to go and see their Dad; so they know what the times are going to be.  It is not going to be some ad hoc, “We will do it tomorrow”. It will be every couple of weeks, you are going to be see Dad at these times.  So yes, I am going to make orders for [Y] and [Z], and they will be expected to be there unless they have got something else important on, like something to do with school or a friend’s birthday party or something like that.

47. Ms B seems to indicate that overnight time should begin immediately. I do not think she specifically says that, but that is certainly the implication but that is the inference that I take from what she says. 

48. The mother says that [X] has never spent a night alone with his father. Presumably, neither have the girls.  So the mother says that there should be some graduated regime so that [X] gets used to the idea and the girls get used to the idea that they go to their Dad and have it gradually increase.

1. It is not an unusual thing for that to happen, although the children where that happens are usually much younger. In this case, I will make it graduated, but a lot more quickly than the mother would wish.

ORDERS DELIVERED

1. That takes care of that particular issue, and that has, I must say, been the primary thing on my mind - as to whether to make orders for the girls and what kind of orders to make for the girls.

ORDERS DELIVERED

1. The next thing I am asked to decide is whether the family should engage in family therapy, which Ms B says is the answer to this family’s problems – and again, I happen to agree with Ms B.

2. Therapy is never comfortable. The idea of therapy is to challenge the way people think and the way they feel and show them that things might be done differently. That is always going to be challenging and uncomfortable for the people undergoing the therapy.  But what comes out the other side is almost always better than what went in. And it is greatly, again, to these parties’ credit that they have agreed to go to family therapy.

3. The issue is whether they see Mr C, who is a family therapist who was once a family consultant with this court.  And Ms B recommends several therapists, none of whom, except Mr C, practises in Town A, which is where the children live.  So that is her recommendation, and that is what the father wants.  The mother wishes to return to an organisation called …Counselling, which is a private family therapy provider in Town A.

4. In mid- 2018, the parties all went separately to that service, but after his session at the service, the father apparently stopped the therapy, well, either because he did not think the therapist was being very professional and was touting for business or, as the mother would have it, that he did not think the therapy was necessary. Well, he is certainly not saying that therapy is not necessary now. And the children have been to Counselling as well. They have also been to Ms B.  They have not seen Mr C - the parents have.

5. Frankly, I do not think it matters which one they go to. The issue is the therapy, not the therapist. But I have to make a decision. And because I think there is an issue – it is not a question of systems abuse, but it is an issue of children saying, “God, not another one.” So it will be Counselling.

ORDERS DELIVERED

1. I am not going to make an order for this because I think there does come a time when orders tend to be a bit “nannyish”, but I would assume – and given that both parties are positive about it – that that therapy would end when the therapist thinks it should. 

2. The third thing I am asked to decide is the question of medical certificates if the children are too ill to attend. 

3. First, I will say that one child being too ill to attend does not mean the other two cannot go. 

ORDERS DELIVERED

1. I am not going to make a substantial attendance order, but I am going to make a first right of refusal order for both parties.

ORDERS DELIVERED

1. I am not going to make an order restraining the parties from introducing new partners to the children until a certain time has elapsed.  I think that does smack a bit of control and distress that need not happen. There is nothing in the report of Ms B that tells me that the father would not do that in a sensitive manner.  It seems to me from the affidavit material and from Ms B’s report that the father has reaped the negative rewards of not being sensitive to the children in terms of what he tells them, and I think he is probably emotionally intelligent enough to have learned from that and that if he does re-partner or, indeed, if the wife re-partners, that it is a matter for them, in their adult consideration, when the children are told about that. So I decline to make that order.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 1 March 2019