LOVAN & PAGE

[2014] FCCA 1740

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOVAN & PAGE [2014] FCCA 1740

Catchwords:
FAMILY LAW – Interim parenting – final hearing part heard – whether the vary father’s time with child – whether to restrict father from attending child’s school.

Legislation:  

Family Law Act 1975 (Cth)

Applicant: MS LOVAN

Respondent: MR PAGE

File Number: SYC 7376 of 2009

Judgment of: Judge Altobelli

Hearing dates: 18 - 19 June 2014

Date of Last Submission: 19 June 2014

Delivered at: Sydney

Delivered on: 3 July 2014

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Johnson Horsley Lawyers

Counsel for the Independent Children’s Lawyer: Mr Andersen

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS:

1. That the mother shall have sole parental responsibility for the child of the relationship, namely X (“X”) born (omitted) 2008.

2. That in exercising that parental responsibility, the mother shall first consult any proposed decision with the father in order to ascertain his views and thereafter shall inform the father of any decision made by her in the exercise of her parental responsibility in writing within 14 days.

3. That X shall live with the mother.

4. That the father shall forthwith provide a copy of his work roster to the mother and provide the mother with a copy of any revised roster by mail within 24 hours of receipt by the father of any revised or amended work roster.

5. That X shall spend time with the Father as follows:

   (a)If the father is employed interstate:

   Until Term 1 2015

   (i)In a three weekly cycle, on each occasion that the Father returns from working interstate for four consecutive nights commencing at 3.00pm on the day of the fathers return to the (omitted) and concluding at 9.00am four days later with the father to return X to school or to (omitted) and (omitted) at 9:00am if it is a non-school day.

6. That X spend additional time with the father, provided that the father is present in the (omitted) for special occasions as follows:

   (a)For not less than three hours on the father’s birthday as agreed between the parties but failing agreement from 3.00pm until 6.00pm, if X is not otherwise spending time with the father pursuant to orders 5 and 6 above.

   (b)From 9.00am until 5.00pm on Father’s Day each year.

7. The parties shall communicate matters pertaining to the care, welfare and development of X:-

   (a)By telephone or text in the case of an emergency.

   (b)For any minor illnesses suffered by X which prevent him from attending school, by short factual text message in the morning of the day this occurs.

   (c)For pressing but non-emergency issues, by short factual text message.

   (d)In relation to major issues such as long term decision making, the following communication plan is to be implemented:-

   (i)The parent who wishes to raise the issue must do so in writing, preferably by short factual text message;

   (ii)The other parent must respond within 7 days;

   (iii)The instigating parent must reply to that response within 7 days;

   (iv)Further direct negotiations are to occur within the following 7 days;

   (v)In the event that no agreement is reached within the 21 days period (unless it is mutually agreed to in writing between the parents to extent this time) then the mother shall exercise her sole parental responsibility in accordance with Order 1.

8. That wherever possible, in order to facilitate changeover the parties shall collect X from or return X to school. If changeover cannot occur at school then to facilitate changeover, the father shall collect X from the mother at (omitted) Play Centre at the beginning of his time with X and the father shall return X to the mother at (omitted) at the end of his time with X and in doing so the Father be restrained from exiting his motor vehicle during changeover.

9. That each parent is restrained from making critical or derogatory remarks about each other or members of each other’s families in the presence or hearing of X and parent must do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent in the presence of hearing of X.

10. Each parent is restrained from using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to X’s care, welfare and development.

11. Each parent is restrained from discussing matters pertaining to parental responsibility or parental decisions in the presence or hearing of X and will use their best endeavours to ensure that no other person does so.

12. Each parent is restrained from using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use).

13. Each parent is restrained from involving X in their parental communication.

14. Each parent is restrained from taking, consuming and/or being affected by an illicit substance while X is in their respective care or for 24 hours preceding such time.

15. Each parent is restrained from enrolling X in any extracurricular activity without first consulting the other parent, however both parents are to not unreasonably withhold their consent to X participating in extracurricular activities.

16. That each parent facilitate X’s attendance at his usual educational, sporting, extra-curricular activities.

17. That the mother retain possession of X’s passport between periods of overseas travel.

18. That these Orders constitute authority for the mother and father to each receive copies of school reports, newsletters, notices and school photograph order forms and to attend any school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of X’s teachers.

19. That these Orders constitute authority for the mother and father to each liaise with X’s treating medical practitioners and obtain information about any medical treatment and any other medical issues.

20. That the father be restrained by injunction from:-

    (a)Attending upon the mother’s residential address;

    (b)Attending upon any of the maternal family members’ residential addresses;

    (c)Contacting any of the maternal family members by telephone;

    (d)Assaulting, threatening, intimidating, harassing, molesting or interfering with the mother; or

    (e)Making video or audio recordings of the mother, including conversations between him and the mother without her knowledge or written consent.

    (f)Attending at X’s school or extra-curricular activities at times X is not in his care in accordance with these Orders.

21. The Mother forward to the Father copies of all reports from the paediatrician and psychologist.

22. The Father do all things to comply with all directions in relation to the reports in the above Order.

23. The two Reports of Ms M be released to the paediatrician and psychologist.

24. The Father be directed to file and serve an affidavit setting out details of his relationship with his partner and his partner’s relationship with X within 56 days.

25. The parents be restrained from physically chastising or disciplining the child in any way.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 7376 of 2009

MS LOVAN

Applicant

And

MR PAGE

Respondent

REASONS FOR JUDGMENT

1. In the matter of Lovan & Page, I provide the following oral reasons for judgment.  The matter stands part heard before me. The hearing commenced on 18 June, continued on 19 June and is to be finalised on 26 February. 

2. The case is about X, born (omitted) 2008, who is six years old and the issue is what time he should spend with his father.  A number of interim issues arose on the 19^th.  A document entitled Mother’s Minute of Interim Orders sets out the orders that she seeks.  Number 1 is an order for sole parental responsibility.  This is opposed by the father, but is supported by the Independent Children’s Lawyer.  Order 2 is an order that follows from order 1 and that is that, in exercising parental responsibility, the mother first consult with the father.  Order 3 is that X live with his mother.  There is no opposition to this.  Order 4, that the father provide a copy of his work roster to the mother.  There is no issue about this. 

3. Order 5, as it originally appeared on the document, appeared to move the court to make some quite substantial changes to the interim spends time with arrangement.  For the most part, that was not pressed by the mother.  The issue in relation to variation of time comes down to this.  The mother proposed to vary the existing arrangement for X to spend time with his father so that it becomes every three weeks, when the father returns from working interstate for three consecutive nights from 3 pm on the day that he returns to (omitted) – Fridays – to 9 am three days later; that is the Monday.  The mother seeks this order;  the ICL supports the order.  The father does not oppose the idea of commencing his time on the Friday but wants in effect to extend it one day longer.

4. Orders 6 to 10 of the document are not in dispute and are largely made by consent.  Order 11 is an order restraining each parent from making a proposal to alter X’s time with the other parent.  This is opposed both by the father and the Independent Children’s Lawyer.  Orders 12 to 21(e) are by consent.  Order 21(f) is an order that restrains the father from attending X’s school.  This is supported by the ICL, but opposed by the father.  Orders 22 to 25 are by consent.

5. The mother sought to suspend the existing orders for telephone contact.  This was opposed by both the Independent Children’s Lawyer and the Father.  The Independent Children’s Lawyer’s attitude to the Mother’s orders are as I have reflected in my reasons.  The Independent Children’s Lawyer sought an order that neither parent physically discipline the child.  That is not opposed by either parent and on that basis, the order will be made. 

6. The parties agreed about some holiday contact for July and an order was made in that regard.  An order updating the family report has been made.  As previously noted, there are existing orders in place in relation to X and the question is whether and if so to what extent, those orders should be changed.  The matter is, of course, part heard.  There is abundant evidence before me by way of the evidence that has been filed and I will just refer to this in my reasons, but, if necessary, I will set these out in any written reasons.  There is a family report, of course.  The mother has been cross-examined.  The father is still being cross-examined. 

7. As I said, there is a family report available. It is dated 22 March 2013 and, in any event, is untested. It would be unwise to make findings even though technically the court is entitled to do that. Nonetheless, a strong impression can be formed from the evidence. Thus it is clear, for example, that both parents love their son. It is clear that this was a high conflict relationship and indeed the high conflict remains unabated despite the period of time since separation. It is quite clear that there is no functional communication between these parents. It is quite clear that there is no trust in existence between them. It is quite clear that their capacity to reach agreement in relation to X is highly problematic to the point where it is necessary to make decisions in relation to X’s welfare because the parents are unable to do so themselves.

8. It is clear that both parents lack insight into their own actions and how those actions are having an adverse effect on X.  The impression that is formed is that the insight deficits that the father suffers are substantially greater than the insight deficits that the mother suffers.  The father appears to struggle to recognise the difference between his interests and X’s interests and is thus unable to prioritise the latter.  He seems very focused on his rights and entitlements rather than X’s needs.  He is without doubt genuine.  He is undoubtedly a committed father.  He just cannot appear to see how some of his actions can have an adverse impact on X.

9. The best example of the impressions that have been formed and which are recorded above is the evidence that the court heard about the father attending X’s school during the course of the hearing.  It was unwise, particularly given the history of events involving his prior attendances at school.  It was potentially stressful for X.  Any reasonably objective person would have realised the lack of wisdom in doing this.  The father did not. 

10. An order for sole parental responsibility will be made.  The statutory presumption is rebutted.  The court is not satisfied that these parents are capable of reaching agreement in relation to matters pertaining to X’s welfare.  For example, whether he should be seeing a psychologist or a paediatrician.  It should be noted that both parents are contributing to this stalemate.  As X spends most of his time with the mother, she should be able to make the decision after consulting with the father. 

11. The mother wants to change the current spends time with arrangement as previously described.  It has the effect of avoiding a changeover in the context of a case where the evidence amply demonstrates that changeovers have been problematic.  By contrast, the father actually wants extra time.  The court is prepared to make the order proposed by the mother but not the order proposed by the father in terms of increased time, particularly as the evidence currently stands.  The evidence would not support that proposal.  In any event, the court would need to be satisfied about the expert evidence before it were prepared to extend his time with X.

12. Order 11 is the order that the mother proposed that restrained the parents from making proposals to alter X’s time.  The ICL opposes it, the father opposes it.  The court will not make the order.  It would be an order that is with respect, futile, bound to fail, unrealistic and arbitrary.  A restraint is sought on the father attending X’s school.  That restraint is entirely justified by the father’s unwise actions in attending school during the course of this hearing. 

13. Other than the orders restraining both parents from physical punishment, the court declines to make any further changes to the existing spends time with orders.  The expert evidence is still out and in many respects, it is by no means clear as to what exactly is in the best interests of X and what is causing what can only be described as the acting out behaviour that happens so often after the father spends time with him but which does not appear to be necessarily consequent on that time.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  15 August 2014