Lawler and Oliver

[2016] FamCA 210

FAMILY COURT OF AUSTRALIA

LAWLER & OLIVER [2016] FamCA 210

CHILDREN – With whom the children live – Best interests of child pursuant to s 60CC(3) – Variation of orders

Family Law Act 1975 (Cth) s 60CC(3)

APPLICANT: Ms Lawler

RESPONDENT: Mr Oliver

FILE NUMBER: SYC 7081 of 2015

DATE DELIVERED: 6 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. That in addition to the time which the children are to spend with their father pursuant to the orders made on 27 November 2015, the children B (“B”) born … 2007, C (“C”) born … 2008 and D (“D”) born … 2010 shall live with the father during school terms as follows:

   (a)As to B and C, from the conclusion of school on Tuesday until the commencement of school on Wednesday in each alternate week;

   (b)       As to D from the completion of school on Thursday until the     commencement of the period of time when D would live with the      father on alternate weekends pursuant to the November orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawler & Oliver has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7081 of 2015

Ms Lawler

Applicant

and

Mr Oliver

Respondent

REASONS FOR JUDGMENT

1. Before the Court are parenting proceedings arising out of the relationship between Mr Oliver (“the father”) and Ms Lawler (“the mother”). The parties, who separated on 21 February 2015, have three children, B (“B”) born in 2007, currently eight years; C (“C”) born in 2008, currently seven years and D (“D”) born in 2010, currently six years.

2. On 27 November 2015 consent orders were made establishing a regime whereby the children spend time with their father each alternate weekend from Friday afternoon until Monday morning and for half of the school holiday periods.

3. On 16 February 2016, orders were made by Senior Registrar Campbell for the children to spend further time with their father. In the case of B and C, from the completion of school each Tuesday until the commencement of school on Wednesday in each alternate week. As to D, from the completion of school on Thursday in each alternate week prior to the weekend she would normally spend with her father so as to extend the alternate weekends to four days. The effect of the orders made by the Senior Registrar was that B and C on the one hand, and D on the other hand, would have dedicated time with their father and consequently with their mother during school weeks.

4. The mother has filed an application to review the decision of the Senior Registrar. The matter therefore comes before the Court by way of hearing de novo.

5. The mother asked the Court to maintain the regime which was agreed upon between the parties in the consent orders of 27 November 2015 without further mid-week time for the children with their father. The father asked the Court to make orders which would preserve the regime which was ordered by the Senior Registrar.

6. The only matter therefore to be determined is whether the children’s time with their father, during school terms, should be confined to weekends from Friday afternoon until Monday morning or whether there should be time for the children with their father during the school week and, if so, in what configuration.

7. Because this matter proceeded on the basis of the untested evidence of the parties and it is difficult, if not impossible, to make factual determinations in the absence of cross-examination, particular weight must be given to the evidence before the Court which can be said to be independent of the parties.

8. In this present case the Court was assisted by a report from a family consultant, Ms E, dated 15 February 2016. Ms E had the advantage of interviewing the children and the parents and seeing the children with each of their parents.

9. The Court was also assisted by an affidavit of Ms F who was D’s special needs teacher at preschool in 2015 and an affidavit of Dr G who is D’s treating paediatrician.

10. D has been diagnosed with an autism spectrum disorder, severe developmental delay, anxiety and obsessive compulsive traits and with behavioural concerns. It is not a matter in dispute between the parties that D’s particular difficulties require special consideration by them as parents.

11. C also has an autistic disorder but he is currently being educated within the mainstream school system at H School. The records of H School up until the end of the 2015 school year were subpoenaed and nothing in those records which was referred to the Court indicated that C was not coping well within the mainstream school system.

Ms E’s Report

1. Ms E saw the family on 15 January 2016. She interviewed the parents separately and observed the parents with the children. She also spoke separately with the children. In relation to the children’s wishes Ms E reported:

   [B] volunteered that she ‘like/s’ her mother more than her father and said that she misses her mother when with her father. At the same time, however, she declined to express any views or ideas about staying with her father for the proposed additional time. She also appeared to be reluctant to talk about the things that she enjoys doing whilst with her father, although, in this context, she talked about having gone to the beach with him.

   [C] (aged 7 yrs 4 mths) launched into talking about his family…[C] then went on to refer to his ‘wonderful mum’, which he followed with saying that it (that his parents no longer lived together) is ‘all to do with Dad, not Mum’, and a ‘stranger’ (‘[Ms I]’), who ‘Dad’ ‘put to him’. [C] continued to recount his understanding of his parents’ separation and then said, ‘Mum’s poor babies’, adding that when his mother is upset, they are ‘all upset’.

   With regard to his father, [C] said ‘Dad doesn’t like spending time with me’. He complained that his father ‘tells me [to] do chores, really dusty chores’. [C] went on to volunteer that Tuesday nights are ‘horrible’ – the ‘least I like’ about staying with ‘Dad’ – and that ‘staying the night [would be] even worse’. Asked what he thought would make his mother happy, [C] said, ‘If we didn’t have [to] go at all’. He then said ‘Guess what? Same with me’.

2. By contrast with the children’s statements to Ms E she records in her report her observations of the children with their father in the following way:

   [B] and [C] arrived at the interviews with their father, having spent school holiday time with him.  In the waiting room, prior to their mother’s arrival, they were observed to relate to their father in a relaxed way and with evident affection, for example, spontaneously seeking to sit on his lap.  When their mother arrived, [C] was observed to dart an anxious look at each of his parents, which then passed to his focus becoming entirely his mother. 

3. Ms E also observed:

   By the accounts given by each parent and by the two children themselves, [B] and [C] have been acutely aware of their mother’s distress.  Based on the contrast between what they said in their interviews and how they were observed to behave towards their father in their mother’s absence, there is a strong possibility that at least some of the complaints that they have made to their mother reflect loyalty and a desire to protect her from feeling upset.

4. The father raised with Ms E a concern that the children have been and continue to be exposed to their mother’s negative views towards him and that this exposure has an impact on their relationship with him. In relation to that issue Ms E commented:

   Once again based on the contrast between their behaviour with him in their mother’s absence and what they said in their interviews, he would seem to have some reason to be concerned.  [The mother] reported that she encourages the children to enjoy their time with their father and tries to ensure that they know that this is what she wants for them.  [C’s] stated view was, however, that his mother would be happy if he and his sisters spent no time with their father.

5. In relation to the proposal that the children be separated for periods of time

   
   

   Ms E reported:

   As children with a sibling who has significant special needs, even if [B] and [C] did not have their own challenges to deal with, having time with a parent who is free to focus entirely on them would be likely to benefit their emotional development in the long term.  Likewise, if [B] and [C] were to spend a night with their father in the alternate week, it would allow for the possibility of [the mother] having time with [D] on her own and for [B] and [C] to have the benefit of some time with their father without [D].

6. Ms E went on to say:

   It is suggested that adding a night to the weekend would give the children added exposure to their father, with less disruption to their lives with their mother, and allow their relationships with him to continue to be developed based on their lived experience of him as a father rather than on any distortions that may have been created by a traumatic separation.  The disadvantage to this type of arrangement would be that there would be no allowance for [B] and [C] to spend time with their mother separate from [D] or [D] to spend time with her father separate from [B] and [C].  It would also still have the disadvantages associated with having a relatively long gap between the times that the children spend with their father.

Dr G

1. Dr G was asked to comment on the competing proposals of the parents. In her report she states:

   It is hard to comment on the competing proposals.  It is likely that with adequate warning and careful preparation [D] will eventually get used to whichever proposal is chosen.  Whilst she is currently already demonstrating increased anxiety with the school related transitions, having changes at home, especially on the weeks where the night-time is alternated between the two households may have an adverse impact on sleep and behaviour and risk increasing her distress.  In my experience with children with autism, distress related to change in household or routine is more manageable for 2–3 day stretches than for short one-night stays.  In this particular case, the presence of her siblings is likely to ameliorate some of [D’s] resistance to change.

   Involvement of both parents does “share the load” of looking after a child with such significant developmental concerns, but requires excellent communication to ensure consistency of carer, similar behaviour management strategies, adjustment of medication etc. and requires significant commitment from all parties.  I can also see value in [the mother] being able to spend some time with her other children without the demands of [D’s] special needs.

Ms F

1. Ms F in her affidavit sworn 12 February 2016 deposed:

   In about May 2015, I met [D’s] father [Mr Oliver] when he visited the preschool to collect [D] which he did thereafter almost every second Tuesday afternoon and then on alternate Friday afternoons and then to drop her off on the Monday morning.

   It was obvious to me that [D] appeared at all times of collection to be very excited to see her father and would gather her bag and hold his hand and go very happily.

   On every occasion that [the father] delivered [D] to our care she was well groomed, tidy, clean and happy.  I recall clearly that for the most part that on these days [D]’s general happiness and behaviour was very good.

2. Ms F also commented that towards the end of 2015, D’s general behaviour and happiness had improved.

3. The parenting arrangements for the children fall to be determined having regard to the considerations of s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) in so far as they are relevant.

4. The mother in her affidavit gives numerous instances of C, in particular, stating that he does not wish to spend time with his father. She does not, however, suggest that C should not spend alternate weekends and half the school holidays with his father but only that he should not spend time with his father during the school week. The father deposed that the children have not expressed any reluctance to spend time with him since February 2016. 

5. I accept the evidence of Ms E in relation to the weight which is to be given to any views expressed by C and I do not propose to place any weight on the various statements made by the children to each of their parents.

6. In relation to the likely effect of changes in the children’s circumstances it is noted that since 16 February 2016 the children have been spending overnight periods with their father, in accordance with the orders of the Senior Registrar, during the school week. The evidence of the mother in her most recent updating affidavit sworn 18 March 2016, in so far as it recounts her observations of the children after spending time with their father, rather than the statements which were made to her, does not suggest that the children are not coping with the changed arrangement.

7. The mother in submissions in relation to the children’s spending time with their father mid-week relied upon the fact that the orders which were sought by the father would require the children to be separated every second Thursday when D would spend time with the father and every second Tuesday when C and B would spend time with the father. The mother referred to the opinion of Dr G to the effect that the presence of her siblings is likely to ameliorate for D some of her resistance to change and suggested that the children should always spend time with their father together. 

8. However, Dr G also commented upon the benefits for B and C of being able to spend time with their mother without the demands of D’s special needs.  That benefit must also accrue to B and C if they are able to spend time with their father without the demands of D’s special needs.   Both Dr G and Ms E were of the view that there are benefits to C and B in spending time with each of their parents in the absence of D and that there are benefits to D in spending time with each of her parents in the absence of C and B.

9. In so far as it appears to be the mother’s case that it is not in D’s best interests to spend Thursdays and Thursday night with her father that would seem not to be the evidence of either Ms E or Dr G. Dr G in her report expressed the view that longer periods of time with a parent are more manageable for D than short one night stays. It would seem to follow from Dr G’s opinion that D will better cope with spending the period from Thursday morning until Monday morning with her father than she would with spending an isolated one night stay during the week. 

10. The evidence is that all three children have coped well with spending extended periods with their father. The children spent ten days with the father in December 2015 whilst the mother went to the United States for a holiday on her own. There is no evidence that they did not enjoy that time. They spent further periods with their father from the afternoon of Christmas Day until New Year’s Day and again from 8 January to 15 January 2016. 

11. Before me the agreed position of both of the parents, and the orders which have been made by consent, provide for the children to spend half of their school holidays with their father. In those circumstances it is difficult to understand the mother’s position which is that four days a fortnight with her father is more time than D can manage.

12. In relation to the capacity of each of the parents to care for the children
    Ms E observed that both parents impressed as being capable, loving and committed parents. The mother has nursing training and the father is a highly qualified medical practitioner. They are both very well placed to care for D’s special needs.

13. One of the complaints raised by the mother, and one of the reasons which she advances for there not being overnight time for the children with their father during the week, is her assertion that the father is not able to make himself available to care for the children. There has been at least one occasion when the father was required to work for a short period of time during a weekend when the children were with him but the father appears to have been generally available at the times when the children were to be cared for in his household.  It is a fact of modern life that working parents sometimes need assistance to care for children when their work commitments cannot be ignored. I accept the evidence of Ms E that in those circumstances the relevant question becomes whether the people who are chosen by a parent to look after the children are appropriate and safe. There is no suggestion in these proceedings that the care arrangements which the father has put in place on those limited occasions when he has not himself been able to care for the children have been inappropriate, involving as they have members of the family, and his new partner.

14. D’s special needs were emphasised by the mother as a reason for her not spending additional time with the father. However, it was not clear from the submissions on behalf of the mother why spending a four day weekend with the father every fortnight, rather than a three day weekend, would be contrary to her best interests. It is difficult to understand why, if D can spend extended periods of school holidays with her father, she cannot spend a four day weekend with him. The four day weekend would seem to accord with Dr G’s assessment that changes to D’s routine are more manageable if the period is longer. 

15. It was submitted on behalf of the mother that C is an anxious child and that the court could not exclude the possibility that C’s anxiety arises because he is uncomfortable with the current regime. The mother placed reliance upon a comment by C’s teacher on 2 March 2016. When the mother collected C from the classroom the teacher enquired whether he had been with his father the previous weekend as C had been emotional and had an “outburst”. Since C and B had not started spending Tuesdays overnight with their father at this stage it is difficult to understand how it can be asserted that C’s being upset on 2 March arose out of his being required to spend time with his father mid-week.

16. I accept the evidence of Ms E and Dr G that these children would benefit from an arrangement such as that which is proposed by the father. D’s time with her father would be increased from three days a fortnight to four days a fortnight. She would have the advantage of a day and a night in the sole care of her father without her brother and sister. They would have the advantage of a day and a night in the care of their mother without D. D would then have the advantage of the balance of the weekend from Friday afternoon until Monday morning in the care of her father in the presence of her siblings. If B and C spend every alternate Tuesday night with their father they will benefit from spending one-on-one time with him and D will benefit from spending that time in the sole care of her mother without the distraction of her siblings.

17. Each of the parents proposes that they should have equal shared parental responsibilities for the children. The orders which the father proposes provide for the children to spend substantial and significant time in his care.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 April 2016.

Associate:

Date:  6 April 2016