MADWICK & DALE (No.2)

[2020] FCCA 3294

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADWICK & DALE (No.2) [2020] FCCA 3294

Catchwords:
FAMILY LAW – Parenting – concerning a child who is almost 13 years old – where pursuant to existing orders the child lives with the mother and spends time with the father – where the child has been spending extended time with the father as a result of the father’s work schedule changing due to COVID-19 – where allegations of coercive and controlling behaviour by the mother against the father amongst other allegations – where the father seeks an extension of the time the child spends with him based on the child’s wishes – where the family consultant expresses concerns as to the genuineness of the child's wishes. 

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR MADGWICK

Respondent: MS DALE

File Number: ADC 3380 of 2018

Judgment of: Judge Young

Hearing date: 19 November 2020

Date of Last Submission: 19 November 2020

Delivered at: Darwin

Delivered on: 19 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Salisbury Lawyers

Counsel for the Respondent: Mr Roberts

Solicitors for the Respondent: Calderwood Atkinson

Counsel for the Independent Childrens Lawyer: Mr Hemsley

Solicitors for the Independent Childrens Lawyer Legal Services Commission of South Australia

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child X born 2007 (“the child”) spend time with his father each alternate weekend from the conclusion of school Friday (or 5pm if not a school day) until the commencement of school on the Tuesday (or 9am if not a school day) with such time to commence from the 27 November 2020.

2. That during the long school holiday period 2020/2021 the child spend time with the father as follows;

   (a)from 18 December 2020 until 11am on the 25 December 2020.

   (b)from 11 January 2021 until 25 January 2021.

3. To give effect to order (2)(b) herein the changeover shall be at times as shall be agreed between the parties or failing agreement at 5pm on the day of changeover.

4. Should the father resume fly in/fly out work the time spending order dated 26 February 2019 (paragraph 2 (a)) shall continue in full force and effect.

THE COURT ORDERS:

1. This matter is adjourned for final hearing (four days allowed) on 1, 2, 3 and 4 March 2021 at 10am.

2. Each party together with the Independent Children’s lawyer may file and serve a further updated trial affidavit no later than 14 days prior to the final hearing in this matter.

IT IS NOTED that publication of this judgment under the pseudonym Madgwick & Dale (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 3380 of 2018

MR MADGWICK

Applicant

And

MS DALE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

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. This is an interim parenting matter concerning X who will turn 13 in 2020, in other words within a few days.  X lives with his mother and spends time with his father.  This litigation has been marked by a very high level of conflict and hostility.  Indeed, the allegations, particularly by the mother, involve allegations of violence and indeed as I remarked when the matter was last before me, an allegation of rape against the father.

3. There are also allegations of coercive and controlling behaviour by the mother against the father.  The father denies those allegations and in effect says that in the pursuit of her interests in the trial, the mother has levelled extremely grave but false allegations against him.  It is not necessary for me to resolve those matters at the moment.

4. There were interim orders made on 26 February 2019 at a time before the COVID-19 pandemic began and when the father was a fly-in-fly-out worker in Western Australia, that is leaving his home in South Australia and flying to work in Western Australia.  As I understand it was essentially a six-week rotation.

5. The orders of 26 February provided that the child would spend the first, second and fourth weekend of that cycle with the father. That effectively resulted in three in six weekends with the father according to Mr Hemsley's submission.  I might say I do not recall any real evidence about this issue but it seemed to be an accepted position that when the father was a fly-in-fly-out worker that was the arrangement.

6. However, with the advent of the COVID-19 pandemic, the father has not been able to fly into Western Australia or fly out to work and he has been at home.  Again, there was no evidence before me, or not that I am aware of, but it seemed to be an agreed position at the bar table that since the advent of the COVID-19 pandemic in about March of 2020, the parties have interpreted the existing orders to mean that the child spends the first, second and fourth weekend of every four week period with the father; effectively an increase of approximately 50 per cent.  In any event, a significant increase in the child's time with the father due to the way the parents have interpreted that order.

7. The father relies heavily, indeed, I think solely on the fact that X, who as I say is almost 13, has expressed strong and repeated wishes to spend more time with his father.  The family consultant who has prepared a report, an experienced family consultant, expressed misgivings about the way in which the expression of those wishes has come about.  Further, she raised concerns in the family report about what she saw as a degree of subtle emotional manipulation of the child by the father.  She observed an example, which may be innocuous but it may not be innocuous, of essentially the father inviting the child to eat an apple and the child initially refusing, but the father expressing in a subtle way unhappiness with that answer and the child changing his answer.

8. The significance of that observation is that there are very serious allegations, as I mentioned, made by the mother of coercive and controlling behaviour by the father.  The family consultant was concerned that what she had seen should not simply be interpreted as an innocuous exchange but as something different.  She raised the question and deep suspicion that the child's expression of wishes were as much intended to please the father as an expression of the child's own wishes.  The family consultant also pointed to some similarity in the language expressed by the child and the father in relation to the question of whether or not it was "fair" that the child should spend equal time with each parent.

9. There are, I think, quite complex matters to be resolved in this case, and at an interim hearing, I am unable to form any concluded views.  Indeed, I do not have any concluded views about the truth or otherwise of the various allegations and indeed observations made in the matter.  However, it is not in question that the child has a close relationship with the mother.

10. The trial will take place over four days from 1 to 4 March 2021, so in a sense the matters for interim determination are perhaps not all that important.

11. The father seeks effectively an extension of the child's time with him on an already extended time regime which would see the child spending from Thursday to Tuesday with him on alternate weekends which would be an extension of the time.

12. Mr Hemsley, the independent children's lawyer, raised concerns about the de facto regime that had been in place over some months, that is the child spending three weekends out of four with the father.  Mr Hemsley thought that given the background to the matter there might have been questions about the appropriateness of that, matters that I have already averted too.  Hence, Mr Hemsley opposed that.

13. Counsel for the mother, Mr Roberts, said, as did Mr Hemsley ultimately, that the recommendation of the family consultant for the interim should simply be adopted.  That is, while the father is not working, the regime should return to a more conventional arrangement of alternative weekend time.  In the case of the mother, at least, she sought that the time run from Friday to Tuesday.  Mr Robinson for the father had submitted to me that really the father was seeking a long weekend arrangement with the child.

14. I accept the submissions of Mr Hemsley on this point and I am of the view that considering the very real question marks about both the genuineness of the child's wishes and whether or not those wishes are in the best interests of the child, I propose basically to adopt the recommendations of the family consultant.

15. I have regard to each of the matters in section 60CC(2) of the Family Law Act. There is no real reason why the regime recommended by the family consultant should in any way deprive the child of his entitlement to a meaningful relationship with both parents. In relation to section 60CC, subsection (3), the matter that the hearing has focused on is the child's wishes, I have already made comments about that. Ordinarily, with a 13 year old child their wishes would carry significant weight, but for the reasons that I have given, and particularly at an interim hearing level, I approach the expression of those wishes with a degree of caution and circumspection. The other matters in subsection (3) have not really been the subject of any submissions and I do not propose to pay any particular attention to them. I, of course, in a very general sense take them into account.

16. In relation to Christmas basically the parties were in agreement that the time should be approximately equal.  I heard submissions about the father withholding the child last Christmas holidays.  I do not propose to enter into that in any significant way, though I am aware there is evidence of that.

17. It was asserted from the bar table that the mother has arranged to take leave from employment on 11 December to 11 January.  Regrettably there was no evidence about that, but it was not challenged and I propose to take that into account.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 3 December 2020