MALONE & MALONE

[2017] FCCA 2404

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALONE & MALONE [2017] FCCA 2404

Catchwords:    
FAMILY LAW – Parenting – interim – final orders after 4 day hearing in August 2016 – children aged 7, 6 and 5 years – Mother seeks to vary Orders – Orders made to vary for short period only.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Malone & Malone [2016] FamCA 689

Applicant: MS MALONE

Respondent: MR MALONE

File Number: SYC 4517 of 2017

Judgment of: Judge Sexton

Hearing date: 25 September 2017

Date of Last Submission: 25 September 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

Counsel for the Applicant: Mr G. Gould

Solicitors for the Applicant: Pigdon Norgate Family Lawyers

Counsel for the Respondent: In person

THE COURT ORDERS:

1. These proceedings and the Father’s Application for Contravention filed 28 July 2017, be adjourned for mention before Her Honour Judge Henderson on 26 February 2018 at 9.30 a.m.

2. The Father file and serve any Amended Response in relation to final orders sought by him by no later than Wednesday 20 December 2017.

THE COURT ORDERS PENDING FURTHER ORDER:

1. That orders made by the Family Court on 22 August 2016 (the Family Court orders) be varied only to the extent necessary for the following orders to apply:

   (a)The Children X, born (omitted) 2010 (‘X’), Y, born (omitted) 2011 (‘Y’), and Z, born (omitted) 2012 (‘Z’) (“the Children”) spend time with the Father on 26, 27, 30 September 2017, and 1, 28 and 29 October 2017 in accordance with orders made on 25 September 2017.

   (b)The Children spend time with the Father on the weekend in November 2017 from 10a.m. until 5 p.m. on both Saturday and Sunday, on the weekend nominated by the Father in accordance with Order 13 of the 2016 Family Court orders.

   (c)When changeovers do not occur at the Children’s school, changeovers occur at McDonalds Family Restaurant at (omitted), unless the parties otherwise agree in writing by email, and the Mother be at liberty to arrange for another adult to conduct the changeover on her behalf.   

2. From and including December 2017, the Children spend time with the Father in accordance with the Family Court orders dated 22 August 2016, AND THE COURT NOTES that this means the Children will commence overnight time with the Father in accordance with Order 8(f) of the Family Court orders in December 2017.

3. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4517 of 2017

MS MALONE

Applicant

And

MR MALONE

Respondent

REASONS FOR JUDGMENT

1. The applicant Mother initiated these proceedings by application filed 17 July 2017, amended by application filed 22 September 2017, seeking to vary final orders made by Her Honour Justice Rees in the Family Court 13 months ago, on 22 August 2016 after a 4 day defended hearing (the 2016 orders).

2. The Father, in his Response filed on 30 August 2017, also seeks to vary the 2016 orders. He seeks orders providing for the increase in the Children’s time with him to be fast tracked, so that monthly weekends extend from Friday to Monday from the commencement of 2018, (rather than from the commencement of 2019 as provided in the 2016 orders), for changeovers to occur at McDonalds Family Restaurant at (omitted), instead of at (omitted) Contact Centre, for the Mother to attend a Parenting Orders Programme and to engage in counselling, for provision to be made for make-up time, and for an order providing for the Mother “to promote a positive relationship between the Father and the Children and encourage the Children to actively interact with the Father on skype.” 

Current arrangements

1. Until April 2017, the Children were spending time with the Father in accordance with the 2016 orders.  Since April 2017, the Children have not spent any face to face time with the Father as provided in the 2016 Orders. This week they will spend four days, during day time only, with the Father.   

Orders sought by Mother

1. The Mother seeks interim orders providing for the 2016 order for overnight time between the Children and the Father to be discharged; for the Children to spend monthly time with the Father on a Saturday and a Sunday during daytime only; for changeover to occur at (omitted) under the supervision of a private supervision service, known as Children in Focus. The Mother seeks an order for a Child Inclusive Conference after a further 6 months “in respect of the position and willingness of the Children to attend overnight care with the Father.”

Orders sought by Father

1. The Father made an oral application for the Mother’s application to be summarily dismissed, but did not seek an adjournment to amend his Response and to give the Mother time to respond to such an amended Response. The Father then decided to proceed with the interim hearing based on the material filed. 

2. During submissions, the Father proposed that the Children spend time with him during the day on the days after the hearing being Tuesday, Wednesday, Friday, Saturday and Sunday this week while he is in Sydney, and while his brothers and family members are visiting from Perth to see the Children. With the exception of Friday, those arrangements were agreed by the Mother, and orders were made on 25 September 2017 to reflect that agreement.   

3. The Mother relied on her affidavit sworn on 21 September 2017. The Father relied on his affidavit sworn on 29 August 2017.

4. The Mother was represented by counsel at the interim hearing. The Father was self-represented.  

Background facts

1. The parties met in (omitted) 2006, married on (omitted) 2006, and separated on 9 November 2012.  They divorced in May 2014. 

2. The parties’ first child X was born on (omitted) 2010.  Y was born on (omitted) 2011 and Z on (omitted) 2012.

3. The Mother is a (occupation omitted) but stopped working after the Children were born.  The Father is employed as an (occupation omitted) by (employer omitted), based in (omitted) in Queensland.

4. The Mother lives in Sydney with the Children and the Father with his wife in (omitted), approximately 300K (omitted) of Brisbane.  The Father pays child support of $3,545 a month to the Mother. 

Litigation 

1. As already noted, final parenting orders were made on 22 August 2016 after a 4 day defended hearing in the Family Court.  There was no appeal by either party from those orders. However, less than 12 months after the orders were made, the Mother has filed an application to vary the 2016 Orders and the Father has filed an Application for Contravention in relation to alleged breaches of those orders by the Mother. 

2. The Mother does not believe the Children have been sufficiently prepared for overnight time with the Father, despite the 2016 orders providing for overnight time to commence in May 2017.   It is her case that the Children have not spent enough time with the Father since the parties separated in late 2012, and are not emotionally ready to manage overnight time.  The Mother seeks to extend the day time only regime, on 2 weekend days once a month, until the Children are “willing and it is appropriate” for them to spend overnight time with the Father.

Legal principles

1. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.

2. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[1] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.

   [1] Section 60CC (2A), Family Law Act 1975 (Cth)

3. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The evidence in relation to events since the 2016 Orders

1. The 2016 Orders were largely complied with until the end of April 2017. Those orders provided for monthly day time between the Children and the Father, initially supervised for a few hours, then in the presence of an adult family member for a full day, then unsupervised for two weekend days, daytime only, then from 10a.m. Saturday until 5p.m. Sunday.  In May 2017, when overnight time was to commence, no time occurred.  The Father had selected the Mother’s Day weekend to spend time with the Children in the month of May. (He acknowledged at the hearing that this was a poor choice of weekend in May). However, he wrote to the Mother on 3 May 2017 to request a change in the weekend because he had been given notice that he was required urgently for work on the Mother’s Day weekend. He sent the Mother further emails on 9 May, 13 May 2017 as well as follow up text and skype messages to say he was not available on the Mother’s Day weekend and to confirm a different weekend in May. The Mother did not agree to the change in weekend for reasons unexplained, nor is there any evidence of her responding to the Father’s messages before the Mother’s Day weekend.  She took the Children to the Contact Centre on the Saturday of the Mother’s Day weekend, but the Father did not attend, consistently with his repeated notifications to her that he would be unavailable due to work. Therefore, no contact occurred in May.

2. On 17 June 2017, the Father travelled from (omitted), leaving his home at 12.15a.m. to drive to Brisbane before flying to Sydney for the Children’s first overnight contact weekend.  The time did not happen.  According to the Mother, the Children did not want to spend overnight with the Father and X in particular was very distressed at the prospect. When the Mother arrived at the Centre for changeover, the Centre coordinator observed X “visibly distressed holding onto the mother who was also anxious and saying that the two youngest children will go for the day but the eldest child does not want to go.”[2] None of the Children would leave the Mother to go to see the Father with the coordinator.[3] When the coordinator told the Father that X was refusing to do the changeover and Y and Z would only go for the day, the Father became upset, telling the coordinator he was going to enforce his rights because the 2016 Orders provided for overnight time. The Father (to the coordinator) then accused the Mother of influencing the Children.  The Father then said “you tell the Mother either I get them overnight or I will see her in court again.”[4] The coordinator asked the Father to wait and to “calm down”.  The Mother called her lawyer.  The coordinator said the centre could not physically force the Children to go.  The Father called the police who attended and spent approximately half an hour with the Children.  According to the Centre’s report, the police then asked whether the Children could be brought to the Father in their presence.  The Mother’s “anxiety immediately rose and she became teary.  It became clear that that was not going to happen…”[5] The Mother and the Children then left the Centre with the Maternal Grandmother, and the police spoke to the Father. 

   [2] At page 23 of Tender Bundle relied on by the Mother

   [3] At page 23 of Tender Bundle relied on by the Mother

   [4] Ibid

   [5] Ibid at page 24

3. The Mother says the Children were not ready for overnight time because they had not spent time with their Father for 2 months, and their time with the Father had been so limited. The case worker at (omitted) Contact Centre conducting the changeover spoke to the Children, and to the Father, and advised that she would not force the Children to go.  The Father called the police who also spent over half an hour with the Children before advising the Father they would not enforce the order for overnight. The Father asked the police to let him speak to the Children, but he was told the Mother would not agree. The Mother says that she offered the Father day time contact on the Saturday and Sunday as had occurred in April, but the Father did not agree to day time only, and returned to Queensland. The report from the Contact Centre states that the Father did not react well to the situation, exhibiting considerable aggression and demonstrating poor insight into the Children’s emotional state. 

4. The Children have not spent any time with the Father since then, despite the 2016 Orders providing for their monthly weekends together.  The Mother continues to be in breach of the 2016 orders.

5. I find it unnecessary in the unusual circumstances of this case to address in detail all the primary and additional considerations.  I have focussed on the evidence of what has occurred since the August 2016 orders were made to determine whether any interim variation of those orders is in the Children’s best interests.     

6. The considerations to which I have had particular regard are:

The benefit to the child of having a meaningful relationship with both of the Child’s parents

1. I am satisfied the Children will benefit from a meaningful relationship with both parties if the 2016 orders are followed.  I find that given the geographical distance between the parties, and the limited time the Children and the Father have spent together, the Children will only benefit from a truly meaningful relationship with the Father if the Mother strongly supports the Children’s time with him, both face to face and via electronic communication, as the current orders provide.  The Mother needs to take the lead, not leave the decision about when they spend overnight time with the Father to the Children, as the Mother proposes. 

2. It is evident from the notes from Phoenix Rising that the Children have a solid bond with the Father, and that those relationships will develop further over time if the Mother supports that growth by complying with the 2016 orders. The parties also need to make a genuine effort to improve their communication and co-parenting skills for the sake of the Children. 

Relevant additional considerations

1. The considerations I find relevant to this interim determination concern each party’s attitude to their parental responsibilities and the likely effect on the Children of reducing the time ordered in 2016 between them and the Father, as proposed by the Mother.      

2. The Children were very young when the parties separated, and because the Father travelled a lot for work, the Children did not spend daily time with him during the parties’ relationship. The Children have needed regular quality time with the Father to build and maintain strong relationships with him.  The 2016 orders provide for such time, even though time is limited by the constraints of the significant distance between the parties’ homes.

3. If the Children were to continue to spend only day times with the Father once a month until the Mother assessed them as ready to spend overnight time with him, the development of the Children’s relationships with the Father is likely to be significantly slowed and perhaps even diminished. If the Children continued to express apprehension about overnight time with their Father into the future, on the Mother’s proposal, overnight time would not happen in the foreseeable future.  

4. The Court determined the arrangements for the Children after a 4 day hearing. The regime ordered involved a graduated increase in the Children’s time with the Father. The Mother did not appeal that decision. When the Father was unable to see the Children on the May weekend, the regime was disrupted.  Given the Mother’s anxiety about the Children spending overnight with the Father, and her knowledge of the Children’s apprehension, I would have expected the Mother to have gone out of her way to minimise the impact of that disruption on the Children.  Instead, without explanation, the Mother refused the alternate weekend in May suggested by the Father, and let 2 months pass before the Children saw the Father again.  

5. I have concerns about the Mother’s attitude for these reasons:  the Mother took the Children to the contact centre on the Mother’s Day weekend, when on notice the Father would not be available.  That is likely to have sent a troubling message to the Children about the Father’s commitment to them.  The Mother knew that was to be the Children’s first overnight weekend with the Father and must have known that arriving at the Centre to find the Father not there, would have increased any apprehension the Children may have been feeling.  The Mother does not explain why she declined to make the Children available later that same month to avoid a lengthy break between contact visits which then resulted. 

6. When the Children arrived at the Centre in June to spend the weekend with the Father, I find the Mother failed to support the Children to transition to the Father.  There was no reason why she could not have explained the situation to the Father, and asked him to have a quiet chat to X or to all three Children, so he could tell them himself what fun he had planned, reassuring them that the weekend would be an adventure for them. When the police suggested they sit in on the Children talking to the Father, the Mother refused to allow it. The June 17^th changeover was a traumatic event which set back the progress that had been made until April.  This narrative raises concerns about the Mother’s attitude to her parental responsibilities, which include her willingness to support and nurture the Children’s relationships with their Father.

7. While the Father behaved angrily at the changeover in June 2017, which would not have helped an already difficult situation, his disappointment and frustration at not taking the Children for their first overnight visit when he had been travelling since midnight the night before, had spent substantial funds and had packed clothing, toys and games to enjoy with the Children, is not surprising. 

1. I do not accept, on the basis of the content of the (omitted) Contact Centre notes, that the Father was given the opportunity to take the Children for the whole of two days of the weekend, as submitted by counsel for the Mother.  While the Mother told the Contact Centre supervisor on arrival that the two younger Children were willing to go with the Father for the day only, and not overnight, that was not an offer on the table when changeover was abandoned.

Conclusion

1. The Mother has not complied with the 2016 orders since April 2017.  The orders provide for weekend time each month. The Children had no weekend time with the Father in June, July, August 2017 or before this hearing on 25 September 2017. Correspondence between the Mother’s solicitors and the Father discloses that the Mother would only agree to making the Children available if the Father signed a consent minute providing for no overnight time. This is despite the existence of the 2016 Orders.  

2. While Mr Gould, counsel for the Mother, opposes any suggestion that the Mother’s application is an expression of her inability or unwillingness to accept the 2016 Orders, I find it likely that this is her position. The Mother, at the 2016 hearing, sought an indeterminate order for only supervised time between the Children and the Father, which was not supported by the expert, the Independent Children’s Lawyer, or ultimately, the Court.  Mr Gould submitted at this hearing that the Children were very young when the parties separated, they had not had time to build solid relationships with the Father, and the Father worked away a great deal which had limited the development of secure relationships between them. Counsel highlighted the fact that the 2016 Orders provided for a quick graduation from supervised time to overnight time. Counsel submitted that this meant that when the Children did not see their Father in May 2017, they were being asked to manage their first overnight occasion with the Father on 17 June 2017, after a 2 month gap in seeing him. Counsel submitted that this time lapse was too much in the circumstances of this case, and was probably the reason the Children were so resistant to leaving the Mother on the June weekend.  I find that counsel’s submissions are an attempt to re-litigate the issues which were before the Court in 2016.  

3. The Father submits that the Mother is frustrating the Children’s relationship with him by failing to comply with the 2016 Orders and refusing to allow their relationships to develop. The Father believes the Mother’s resistance to overnight time is more of the same, and that she is undermining him to the Children.  He highlights the contrast in the Mother’s affidavit evidence about the Children’s distress and the Father’s alleged abuse of the Children, with the evidence from the independent supervisor from Phoenix Rising, of the very same contact occasion, when the reports disclose the Children’s excitement and delight at spending time with the Father. The Father refers to the Reasons for Judgment of Her Honour Justice Rees when Her Honour records the expert psychiatrist’s assessment of the Mother’s efforts to exclude the Father from the Children’s school life as unreasonable and “really all about her and not about the Children”[6] and when Her Honour finds the Mother “has been sadly lacking” in her responsibility to foster the Children’s relationships with the Father.[7]

   [6] At paragraph 196 of Malone & Malone [2016] FamCA 689

   [7] Ibid at paragraph 183

4. The Father says the Children no longer want to engage with him on skype and speculates that the Mother is behind their change of heart. He submits that the Mother’s application is misconceived and unnecessary given that final Orders are in place and should simply be followed. The Father contends that further litigation will be highly detrimental to the Children’s wellbeing, which is a view I share.    

5. While there is no dispute that the parties complied with the 2016 orders until and including the weekend in April 2017, it is common ground that the Children have not spent any time with the Father since then.  While I accept that the missed weekend in May caused an unfortunate disruption to the routine which was being established by the 2016 Orders, I find that the Mother’s application goes well beyond an application to vary the orders simply to accommodate the missed contact occasion and its possible impact on the Children’s preparedness for overnight contact that weekend. As I raised with the Mother’s counsel at hearing, the Mother’s application invites a full rehearing of the case on a final basis only 13 months after most of the issues raised in these proceedings were comprehensively addressed and final orders made.  Her application seeks to give the Children the responsibility for deciding when they feel comfortable to spend time with the Father overnight, when, at 7, 6 and 5 years, their expressed views would be afforded little or no weight, and when a Court, following a 4 day hearing, has already determined that question.  

6. Orders have been made on a final basis for the Children to spend overnight time with the Father. The Court heard from the parties, their witnesses and from Dr B, an experienced forensic psychiatrist who assessed the family.  I am not satisfied anything has occurred since the date of those Orders which would justify a change  in Orders to no overnight time until the Children were “willing” as sought by the Mother. 

7. However, as I explained in Court to the Father, given the Children’s very young ages at the date of separation, and given the limited time the Children have spent with him, I am satisfied a break in face to face time since April, now a period of 5 months, is likely to have increased the Children’s apprehension about leaving the Mother for overnight time with him.  I asked the Father to reconsider the interim orders he was seeking in light of that 5 month disruption to the time regime.  The Father, to his credit, did so, and proposed 5 whole day periods while he was in Sydney this week, and a further weekend of two day time only periods in October (as occurred at the last contact weekend in April) before overnight time commenced in November.

8. As already noted, I made an order on 25 September 2017 for the Children to spend 4 of the 5 days sought by the Father this week (during daytime only) and an order for the October weekend, daytime only for 2 days, as sought by the Father. Those arrangements were agreed by the Mother. 

9. As noted, I do not accept the Mother’s counsel’s submission that the Children should be consulted about the overnight time as proposed by the Mother. The matter was finalised only a year ago, and while there was an unfortunate disruption to the parenting regime put in place by those Orders, I am satisfied that after a short period to help the Children to readjust to their routine with the Father, the Orders made in August 2016 will apply.

10. I have decided the Children will spend day time on both days of the October and November weekends in 2017 and on the next contact weekend in December, overnight time will occur.  While there is no evidence before me as to which weekend in December the Children will spend with the Father, the weekend will fall either towards the end of the school year or at the start of the long holidays. In accordance with the 2016 Orders, overnight time will occur in December 2017, then again in January 2018 on the weekend nominated by the Father, and monthly thereafter until arrangements change again in early 2019. 

11. Changeover. Order 14 of the 2016 Orders provides for changeover to occur at McDonalds (omitted), or at a contact centre, or at school (when school is applicable from 2019). On 26 June 2017, the parties were advised by the (omitted) Contact Service that their service to the parties had been suspended as a result of the events of 17 June 2017 “due to the children’s unwillingness to participate in the changeover.”[8] The Mother asks in these proceedings that changeovers continue to be supervised by a professional agency or Contact Service. The Mother’s counsel submits that the Mother remains apprehensive of direct contact with the Father, although acknowledges that changeover between the parties directly at McDonalds in April of this year proceeded without difficulty.    

    [8] At page 22 of Tender Bundle relied on by the Mother

12. The changeover in June this year was traumatic for the Children and for the parties.  The Father was upset and angry when, after travelling for nearly 10 hours, he was told the Children did not want to go with him. The situation escalated quickly and nothing was ultimately resolved as it should have been. Unfortunately the Father was not given an opportunity early in the changeover process to speak to the Children. I am satisfied the events of June 2017 are likely to have been much less traumatic for the Children, particularly X, if the Father had been given the opportunity to chat quietly with him/them, and reassure them, rather than being blocked from seeing them as the Mother ultimately insisted.

13. No professional supervision service will force distressed Children to transition to another parent.  Because of what occurred in June, and because of the Mother’s current concerns about the Children spending overnight time with the Father, I accept the Father’s submission that changeover is likely to proceed more smoothly without the involvement of a professional supervisor who will have no option but to stop the changeover occurring if the Children refuse to go.  The parties agree that changeover between them at McDonalds in April 2017 worked well for the Children. The Phoenix Rising reports reveal the close bond between all the Children and the Father and the Children’s excitement at changeovers supervised by them.  I find it more likely the Children will transition to the Father without distress if they have immediate contact with him at changeover and are not required to negotiate a transition through a third party.  However, given the Mother’s apprehension of the Father, she will be at liberty to arrange another adult to conduct the changeover on her behalf should she wish to do so. 

14. As I made clear in the courtroom, the parties need to finalise these proceedings quickly for the benefit of their Children.  The matter was heard and determined last year.  That should be the end of the matter.  Orders must be followed. I am concerned about the real risk of these Children being subjected to a protracted dispute between their parents which will be seriously damaging to their welfare both in the short and long term. 

15. It may be that the parties would benefit from joint therapy to improve their ability to communicate.  It may be that the parties individually would benefit from individual counselling to address the issues between them. In particular, it is likely the Mother would benefit from counselling to help her accept the 2016 Orders.  However, given no orders of that kind were made at the final hearing, and I have formed the view that this court should interfere as little as possible with the  Orders made last year, I will not make such orders.

16. The Father foreshadowed filing an Amended Response so I have made provision for that to occur.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:  29 September 2017