Lockley and Bardot

Case [2016] FCCA 1982

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKLEY & BARDOT [2016] FCCA 1982
Catchwords:
FAMILY LAW – Parenting – change of residence – best interests of 8½ year old boy – significant evidence by Mother’s sister that strongly supported the Father – repeated opportunities by the Mother during the trial to re-consider her position in relation to the child’s time with the Father and other beliefs she held in relation to the Father which independent evidence established were untenable (e.g. whether the Father had any mental health issues, which expert evidence confirmed that he did not) – the Court’s strong view that the Mother would continue not to promote the child’s relationship with the Father – expert evidence that the Mother and child were in an enmeshed relationship that also resulted in a separation dynamic between them – expert evidence also concluded that the child was being “conditioned” by the Mother regarding the child’s views of the Father – expert evidence not accepted by the Mother who relied upon her own observations and assessment – evidence clearly supported a good, happy and relaxed relationship between Father and son – change of residence ordered.

Legislation:

Family Law Act 1975, ss.60B(1), 60CA, 60CC(1), 60CC(2), 60CC(3)(a) – (l), 65DAA

Cases cited:
Browne & Keith [2015] FamCAFC 143
In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC 91-113
Fox v Percy (2003) 214 CLR 118
In the Marriage of Freeman (1986) 11 Fam LR 293; (1987) FLC 91-857
McCall v Clark (2009) 41 Fam LR 483

Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340
Sigley v Evor (2011) 44 Fam LR 439
Applicant: MS LOCKLEY
Respondent: MR BARDOT
File Number: SYC 8874 of 2007
Judgment of: Judge Neville
Hearing dates: 27, 28 & 29 June 2016
Date of Last Submission: 29 June 2016
Delivered at: Sydney
Oral Reasons Delivered on: 30 June 2016
Written Reasons Provided: 2 August 2016

REPRESENTATION

Solicitor/Advocate for the Applicant: Ms Y Swifte
Solicitors for the Applicant: Swifte Law, Sydney
Counsel for the Respondent: Mr Jackson
Solicitors for the Respondent: McCabe Partners Lawyers, Taren Point
Counsel for the Independent Children’s Lawyer: Mr Cook
Solicitors for the Independent Children’s Lawyer: S P Nasti & Co, Drummoyne

ORDERS

  1. The Father have sole parental responsibility for the child X, date of birth (omitted) 2007 (“the child”).  The Father is to ensure that he keeps the Mother informed on a regular basis of all matters relating to major long-term issues in relation to the child.

  2. The child resides with the Father.

  3. The child spends time with the Mother as follows:

    (a)During school term:

    (i)Each alternate weekend from Friday after school until 4.00pm Sunday.

    (ii)Such other time as may be agreed between the parties in writing (see further: notation A).

    (b)During school holidays:

    (i)For one half of each gazetted New South Wales term school holidays including Christmas holidays being the first half in…

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AGLC
Lockley and Bardot [2016] FCCA 1982
Case
[2016] FCCA 1982
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders between the Father and the Mother regarding their child, X. The dispute centred on the arrangements for X's residence, time spent with each parent, and parental responsibility. The court was tasked with determining the best interests of the child in light of the evidence presented.

The legal issues before the court included determining who should have sole parental responsibility for X, where X should reside, and the specific arrangements for X to spend time with both the Father and the Mother. The court was also required to consider the communication protocols between the parents and how they should share information and costs related to X's welfare and activities.

The court's reasoning was heavily influenced by expert evidence, including a Family Report and the testimony of Dr R. These reports indicated that X suffered from separation anxiety disorder, primarily related to his mother, and that his expressed fears of the Father were likely a learned response influenced by his mother's anxieties and negative perceptions of the Father. The court found no evidence that the Father posed a risk to X, despite past allegations and a history of substance abuse, which the Father had candidly addressed. The court concluded that X had a strong desire to connect with his father and the paternal family.

Consequently, the court ordered that the Father have sole parental responsibility for X, with X to reside with the Father. Specific orders were made regarding the time X would spend with the Mother, including alternate weekends during school terms and a division of school holidays. The orders also detailed communication requirements, shared attendance at X's events, and equal contribution to certain costs, aiming to foster a positive co-parenting relationship and promote X's best interests.

Orders

Orders of the court

1.

The Father have sole parental responsibility for the child X, date of birth (omitted) 2007 (“the child”). The Father is to ensure that he keeps the Mother informed on a regular basis of all matters relating to major long-term issues in relation to the child.

2.

The child resides with the Father.

3.

The child spends time with the Mother as follows:

(a) During school term:

(i) Each alternate weekend from Friday after school until 4.00pm Sunday.

(ii) Such other time as may be agreed between the parties in writing (see further: notation A).

(b) During school holidays:

(i) For one half of each gazetted New South Wales term school holidays including Christmas holidays being the first half in years ending in an odd number and the second half in years ending in an even number.

(ii) The first school of a school holiday period is to begin after school on the day that school closes and conclude at 4.30pm on the day which is halfway through the holiday period.

(iii) The second half of school period to begin at 10.00am on the day which is halfway through the school holiday period and end at 5.00pm on the day before commencement of the new school terms.

(iv) Changeovers for holiday contact will take place at McDonalds at (omitted).

(c) In addition to the child spending time with the Mother as set out in paragraphs 3.1 and 3.2 above the child will spend time with the Mother:

(i) From 12.00 noon Christmas Day until 12.00 noon Boxing Day in years ending in an odd number;

(ii) If the child’s birthday falls on a weekday that the Mother is not scheduled to spend time with the child, from 3.00pm on the day prior to the child’s birthday until 9.00am on the day of the child’s birthday;

(iii) If the child’s birthday falls on a weekend that the Mother is not scheduled to spend time with child, for 6 hours on the child’s birthday from 12.00 noon to 6.00pm;

(iv) For Mother’s Day each year if it falls that a weekend the Mother is not scheduled to spend time with the child from 5.00pm on the Saturday before Mother’s Day to 5.00pm on Mother’s Day;

(v) On the Mother’s birthday from 12.00noon to 6.00pm if her birthday falls on a weekend that the Mother is not scheduled to spend time with the child and from 3.00pm to 9.00am the following morning if the Mother’s birthday falls on a weekday where the Mother is not scheduled to spend time with the child.

4.

Telephone time shall be for at least twice per week unless otherwise agreed in writing between the parties on such dates and times as are agreed in writing between the parties. The dates and times shall at least be once during the week and once during the weekend.

5.

The parties will each be entitled to attend all events involving the child including but not limited to:

(a) Sporting fixtures;

(b) Extra curricular activities that allow for parental attendance or participation;

(c) Any organisation or club of which the child is member;

(d) School functions and events, parent/teacher interviews, school concerts and assemblies, swimming and sporting carnivals and other functions held at or organised by the school that allow for parental attendance or participation irrespective of which day of the week such occasion falls on;

(e) The parties will contribute equally to the registration and/or enrolment and uniform costs arising from the child’s extra curricular activities including sporting activities and the parties agree that such shared costs will be in addition to any child support assessment.

6.

The parties will keep each other informed as soon as it is reasonably practicable of:

(a) Any medical problems or illness suffered by the child whilst in their care.

(b) Any medication that has been prescribed for the child;

(c) Any medical appointments with any medical doctor, psychologist, counsellor or therapist regarding the child;

(d) Any social, school or religious functions which a child is to attend;

(e) Any contact telephone number;

(f) Any matter relevant to the welfare of the child;

(g) The parties will contribute equally to the costs of any medical physiotherapy, dental and occupational therapy and pharmaceutical expenses relating to the child and such cared costs will be in addition to any child support assessed in relation to the child.

7.

The parents shall ensure that any school the child attends shall be provided with an authority by which each parent is entitled to receive any and all reports, notices and any other correspondence from the school.

8.

The parties will each have day to day responsibility for making decisions about the child’s welfare whilst the child is with that party in accordance with these Orders.

9.

The parties will communicate with one another as follows:

(a) The parties will use courtesy and consideration when communicating with each other about the child and they will limit those communications to matters relevant to the child’s care, welfare and development.

(b) Ordinarily the parties will use text messages for the purpose of communication except in cases of emergency when they use their phone for the purpose of making a phone call.

10.

The parties will not use language which is derogatory to the other parent or to the other parent’s partner or family or have discussions about the other parent that are negative, in the presence or hearing of the child and they will ensure that no other person speaks in such a manner about the other parent or the other parent’s partner or family in the presence or hearing of the child.

NOTATION A

The Court notes that the Father sought an order that in the week that the Mother is not scheduled to spend alternate weekend time with the child, that the child spend time with the Mother from Wednesday after school until before school on Friday. While the Court does not have any issue with this proposal in theory, the practicability of the child travelling from his school to his Mother’s home mid-week, would seem to be too onerous on the child.

Background

Background to the litigation

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Evidence

Evidence Before The Court

First, I note the following comments from Ms C's Family Report (Exhibit B). Relevantly commencing at par.53 of that Report, she said (it is as well to set out her evaluation in full) (emphasis added):[3][3] I note that Ms C was not required for cross examination.EVALUATION [53] The parties in this matter only ever briefly dated and neither considered themselves to have been in a solid relationship of any consequence. They separated without rancour and (it appears) did not think too deeply about what parenting arrangements might be made for the baby that Ms Lockley was pregnant with. Mr Bardot’s relative lack of interest in the baby during Ms Lockley’s pregnancy and after X’s birth appears to stem from his belief (at the time) that X was not his child. [54] When it was confirmed that X was indeed his child, Mr Bardot initiated mediation and the parties developed a parenting plan, the structure of which was dictated by X’s young age at the time. [55] This plan was interrupted by the incident that occurred at changeover in 2009 and Mr Bardot’s subsequent decision to not pursue the matter of spending time with X. While this is understandable in some respects, it was unfortunate for X as he then spent the next five years without his father in his life. If X had been in the process of forming an attachment to his father in 2009, he would have experienced the sudden absence of his father as emotionally destabilising and confusing. [56] The way in which X resumed spending time with his father in 2014 appears to have been a sound and child focused plan, whereby there was a supervised reintroduction phase, then a day time visit phase and finally, the commencement of overnight time, implemented over a period of several months. This would have provided X with a relatively gentle and safe introduction to his father and his father’s family. [57] However, given X’s obvious shyness, timidity and lack of confidence, this significant change would have been emotionally challenging for him, and also for his mother, who is his primary (and possibly only) attachment figure. [58] Ms Lockley’s last experience of Mr Bardot and his family in 2009 would not have been pleasant. However, even five years later Ms Lockley appears to still harbour considerable resentment and anxiety arising out of this incident and it is likely that she has communicated these feelings to X. The way that Ms Lockley responded to the cupcakes that X made for her whilst he was spending time with his father would have given X a very clear message that his mother cannot abide his father or his father’s family. This, and other behaviours of his mother, would have placed X in a loyalty bind which may have contributed to him exaggerating or over-emphasising his ‘fear’ of his father (in order to dutifully fulfil his mother’s need to find his father wanting). There are strong indications that Ms Lockley’s boundaries with X are undesirably loose, so that he is the recipient of all her unfiltered (negative) thoughts and feelings about the paternal family. It goes almost without saying that it is not appropriate for a parent to place their child in the middle of adult conflict in this way. X would feel confused by the dissonance between what his mother says and feels about the paternal family and X’s experiences of the paternal family (as being largely positive ones).[59] Ms Lockley’s view that Mr Bardot has a mental illness is not borne out by the material before the Court, or by Mr Bardot’s presentation or narrative on the day of the Family Report interviews. Ms Lockley’s accusation that Mr Bardot is “unstable” was vague and amorphous; and when it seemed that this view of Mr Bardot was under challenge, Ms Lockley then alleged that Mr Bardot’s history of alcoholism was a risk factor for X. Mr Bardot was shocked that Ms Lockley had brought his substance abuse history up, but to his credit he was then candid about his past battles with drugs and alcohol and he talked about how he continues to maintain his sobriety. There is absolutely no material or evidence before the Court which suggests that Mr Bardot’s substance use history presents any risk at all to X.[60] The multiple incidents that were alleged by Ms Lockley to have created a sense of fear of his father in X when he was spending time with him in 2014 are well documented in both parties’ affidavits, as well as in the affidavits of various members of Mr Bardot’s family. The issue that Ms Lockley appears to be most concerned about is that Mr Bardot has deliberately, with intent, harmed X on multiple occasions. Analysis of this material indicates that incidents as such did occur but the harm was minor (and mostly negligible) and there was no malicious intent on Mr Bardot’s part. The one incident that would be of concern (if it is true) is where Mr Bardot was alleged to have slapped X multiple times on the face. However, this is quite a bizarre allegation, in that it was supposedly over X “not remembering” text messages sent by his father. This simply does not make sense. [61] Mr Bardot has attached some text messages sent by X to him, in his affidavit. The father’s sister has also done the same. These messages indicate that in 2014, X thought warmly of his paternal family and wanted to keep in contact with them. They are not the messages sent by a child who lived in fear of these adults.[62] When he was interviewed, X seemed hesitant to express any particular views about his father. His recounting of why he was “scared” of his father sounded rehearsed and even X himself did not sound convinced that they were actually anxiety provoking events. X’s behaviour when he saw his father (after a break of 12 months) was not indicative of a child who has previously been scared of a parent. X appeared quietly happy to see his father, and it took him only a few minutes to relax and be comfortable in his father’s presence. [63] In light of the above analysis, it is submitted that there is no need for X’s time with his father to be supervised. X’s time with his father should occur on a regular and predictable basis, and be of sufficient duration to maximise the development of a close and trusting father/son relationship.[64] If the Court considers that it is in X’s best interests for him to resume spending unsupervised time with his father in the future, Ms Lockley will find this challenging. She may try to extract information out of X that affirms her belief that he is not safe, and she may once again seek to limit or suspend X’s time with his father. X may once again feel obliged to recount all the bad things that happened at his father’s house, because he knows this makes his mother happy, not because bad things are necessarily happening. X will be hesitant with his paternal family at first, because he is unsure of how to behave when he is caught in between his mother’s expectations and prophecies and his father’s need for him to relax and be comfortable (around many people).[65] In order to short circuit this process, and keep X safe from the emotional harm that occurs to children caught up in loyalty conflicts, it would be helpful for X to be referred to counselling and ideally to a specialist service such as ‘The Anchor’ (run by Unifam in (omitted)). This service will also work with both parents to ensure that they understand the impact of their behaviour on X and it will assist them to develop strategies for co-parenting successfully in the future. [66] One of Ms Lockley’s greatest fears is coming into contact with Mr Bardot’s extended family. Whether or not these fears have any basis in current reality is a moot point. Ms Lockley is anxious when confronted with multiple members of Mr Bardot’s family and Mr Bardot needs to be mindful of this and act with sensitivity, as long as any arrangements made are still reasonable and practical ones. One way to avoid confrontations is to have Interrelate as the nominated changeover location (where school is otherwise not an option). If there are changeovers that cannot be done at either school or Interrelate, then each parent should attend on their own. [67] The parties currently live some distance from each other, which militates against X spending extended periods of time with his father during school terms. For this reason, it would be in X’s best interests for him to spend half of the NSW school holiday period with his father and paternal family for periods of up to one week at a time and up to three weeks in total (over Christmas/New Year).RECOMMENDATIONS [68] It is recommended that the parents equally share parental responsibility for the child X.[69] It is recommended that X live with his mother.[70] It is recommended that X spend time with his father in the following way:· Immediately and for a period of three months: each alternate weekend from 9am on Saturday morning until 5pm on Sunday afternoon;· Thereafter, each alternate weekend from after school on Friday until 5pm on Sunday afternoon;· In NSW School Holiday periods: for one week of each short school holiday period and in the Christmas/New Year period, up to three (non-consecutive) weeks;· Christmas: in odd years, from 2pm on Christmas Eve until 12pm on Christmas Day and in even years, from 12pm on Christmas Day until 5pm on Boxing Day, with time either side of these days to be agreed by the parties in accordance with the arrangements for school holiday time. [71] It is recommended that the mother be prohibited from unilaterally suspending X’s time with his father for any reason, or in any way preventing X from spending time with his father as specified in final orders.[72] It is recommended that both parties contact ‘The Anchor’ program run by Unifam in (omitted) for the purposes of referring X for counselling, and further that both parties attend this service as required and complete any such courses as X’s counsellor might recommend.[73] It is recommended that a copy of this Family Report be released to X’s allocated counsellor to assist them in their work with X and his parents.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Then at pars.102 – 105 (pp.21 – 22), Dr R stated:[102] X appears to be a happy, healthy 8 year old child who’s in year 3 at school and performing well. X appears to be developing normally both cognitively and emotionally for his age. He functions quite well at school and with peers. The major difficulty has is the separation dynamic between him and his mother which is I believe a mild form of separation anxiety disorder. This difficulty in separating from his mother has particularly emphasised when he has attempted to see his father and also his poor attendance at school. I believe that at some level, X is aware that his mother is fearful of losing him to the father. He has interpreted this as separation fear that he will be taken by his father and never see his mother. [103] X clearly has a close relationship with his mother but it’s overly close and somewhat enmeshed where the emotional boundaries are blurred between them. He is quite happy to stay at home. He stayed at home on 10 Fridays last year, which was partly to enjoy being close to his mother but also to avoid possibly going to see the father. This seemed to be supported by the mother. [104] I believe that X has a strong yearning to see his father and be involved with his sister A and A’s son R and also his cousin H. He clearly was very positive about his father and his half-sister. He talked about wanting to have a full family with mother, father, sister and brother. I believe he was referring to the family members. The mother wasn’t able to understand that this is what he was asking for. He was very pleased to see his father. [105] I believe that his complaints about his father were a learned response from the repeated questions and answers to his mother. He acknowledged that he couldn’t really remember what had happened but he did make statements that his father stepped on his foot, knocked him on the head with a football and smacked him on the cheek. However, none of those incidents led to him to not want to see his father and it wasn’t clear that he had a clear memory of those incidents. His main issue was his separation anxiety and his fear of losing his mother and missing his mother. I believe his major wish is to be involved in a broader family. His main wish, “I want to have a sister, brother, dad and mum in that family too, altogether.” I formed the view that his major concern was losing his mother and fear of disappointing her but that his major wish was to be involved with the father and the father’s family. Finally, at pars.109 – 111 (pp.22-23), Dr R commented:[109] X has developed separation anxiety disorder with his mother who has emitted a dependent anxious dynamic. He finds it difficult to separate from her. He’s constantly anxious and clingy to her. He’s worried about losing her and his fear about Mr Bardot is that he will prevent him from seeing his mother. Ms Lockley, I believe is also fearful of losing X but doesn’t seem to be able to acknowledge this fear. This dynamic has made it difficult for Ms Lockley to allow contact. I believe that she has unwittingly misattributed X’s reluctance to separate from her as fear of seeing the father. X does in fact does want to see his father and is very keen and eager to form a relationship with the broader family. [110] In addition, X has learnt and has some conditioned responses in relation to answers. He acknowledged that he couldn’t really remember what had happened but he’s learnt that there were several incidents that he should repeat such as being stomped on the foot, slapped on the face, hit on the head with a ball as reasons for not seeing the father. However, he did indicate that he wanted to see the father by saying that he would wear clothes and to not be slapped and stomped on. [111] In essence, I believe that the major problem is the separation anxiety dynamic between Ms Lockley and X and this has made it difficult for X to be able to see Mr Bardot. Mr Bardot has found it difficult to understand despite his attempts to be reasonable and positive that Ms Lockley has not accepted his apology and also his gracious intentions such as the cupcakes and the stone heart.