MANTHEY & BARTZ
[2018] FCCA 1305
•12 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANTHEY & BARTZ | [2018] FCCA 1305 |
| Catchwords: FAMILY LAW – Parenting – interim Application by Father to seek slight but graduated increase in time with young child – Application in accordance with detailed Family Report – resistance by Mother to Orders but no formal challenge to the recommendations in the Family Report which issued 9 months prior to the Father’s Application – Court accepts recommendations of Family Consultant on an interim basis – consideration of both “best interests” and “proper use of scarce public resources”. |
| Legislation: Family Law Act1975 (Cth), pt.VII, ss.60CA, 61DA, 65DAA |
| Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Perry & Perry (2015) FLC 93-669 Vanzin & Vanzin [2014] FamCAFC 245 |
| Applicant: | MR MANTHEY |
| Respondent: | MS BARTZ |
| File Number: | CAC 609 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | Decided on written submissions |
| Date of Last Submission: | 12 January 2018 |
| Delivered at: | Canberra |
| Delivered on: | 12 April 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Walsh & Blair |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Campbell Paton & Taylor |
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
All extant parenting Orders be discharged.
The parties have equal shared parental responsibility for [X] ("the Child").
The Child live with the Mother.
The Child spend time with the Father as follows:
(a)Until the child starts school in 2018, in a four week cycle:
(i)In week 1, from Saturday at 9.30 am to Monday at 4.30 pm in Region A; and
(ii)In week 3, from Saturday at 9.00 am to Monday at 4.30 pm in Region B.
(b)When the Child school starts in 2018, during school terms:
(i)Every third weekend, being at conclusion of weeks 1, 4 and 7, from Friday at 5.00 pm to Sunday at 4.30 pm,; and
(ii)During the first week of the Term 1, 2 and 3 school holidays from Monday at 9.30 am to Thursday at 4.30 pm.
(c)On special occasions as follows:
(i)During Christmas 2017, from 3.00 pm on Christmas Eve until 4.30 pm on 27 December 2017;
(ii)At Easter, from Easter Friday at 3.00 pm until Easter Sunday at 4.30 pm; and
(iii)As otherwise agreed between the parties from time to time.
The Father be a liberty to communicate with the Child by telephone every Wednesday and Sunday between 6.00 and 7.00 pm, or at any other time at the request of the Child, with the Mother to immediately offer the phone to the Child and afford the Child privacy without undue distraction .
Unless otherwise agreed:
(a)Changeovers that are referred to in Order 3.a.ii, take place at the Mother's house at the commencement and conclusion of time; and
(b)The balance of changeovers occur at McDonalds.
In the event of the Child being hospitalised or requiring urgent medical attention the parent spending time with that Child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
The Mother shall provide reasonable notice to the Father, being no less than 7 days prior, of any medical or health appointment that the Child is to attend.
If the Father cannot attend a medical or health appointment referred to in Order 7 above, the Mother will within 24 hours of such appointment notify the Father of the outcome of the appointment providing the Father with detail including but not limited to diagnosis, prognosis, any recommendations including treatment and/or scheduling of further appointments.
The Father is authorised by this Order to obtain any information from any treating practitioner, hospital or medical practice that the Child shall attend from time to time, and the Mother will provide authority to the treating practitioner, hospital or medical practice for the purposes of the Father obtaining such information.
Each party shall be entitled and shall authorise where necessary from the school that the Child may attend to provide each party with copies of all school reports, school newsletters, notification of all school activities, parent teacher nights, and inform each parent of any emergency, remedial or correctional treatment as soon as practicable, and that each parent is entitled to attend school events and parent/teacher appointments.
Each party advise the other party and keep the other party advised of their current address and contact number (including both landline (if applicable) and mobile telephone) and advise the other party of any changes to these within 48 hours of such occurring.
Each party shall refrain from making critical or derogatory remarks about the other in the presence or within the hearing of the Child and each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other in the presence or within the hearing of any of the Child.
The matter remains listed for pre-hearing directions on 21 August 2018 at 9:15am in CANBERRA.
IT IS NOTED that publication of this judgment under the pseudonym Manthey & Bartz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 609 of 2016
| MR MANTHEY |
Applicant
And
| MS BARTZ |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12th April 2018, the Court delivered oral reasons in relation to yet another interim parenting matter, on this occasion concerning very discrete issues regarding 5 year old [X] (born 2012) spending time with his Father (and his family) in Region A, which is approximately 300 kilometres from the Mother’s residence in Region B. The issue(s) relate less to [X]’s time with his Father, which has been occurring in Region B (with the Father doing all the travelling), but rather with the distance involved and what the Mother sees to be concerns for [X] regarding travel and matters relating thereto. The reasons that follow have been revised from the transcript.[1]
[1][1] The Mother has now appealed the Orders made on 12th April, together with a stay Application, notwithstanding the imminent final hearing and interviews for an updated Report. The more expeditious revision of these reasons has not been possible not only because of the always onerous case-load of between 300 – 400 matters (across all areas of the Court’s broad jurisdiction) in my docket, being recently on circuit, but also because the file has been required by the Appeals Registry in Sydney. These are reasons not criticisms or objections. It has also been raised with the parties and the Mother’s solicitors in particular why the final hearing dates should be retained in circumstances where (a) the appeal is pressed in relation to a discretionary interim judgment on a very discrete issue, which relied upon an expert report and (b) large quantities of scarce public resources are being expended on the same matter in two Courts cf. AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
The matter is listed for final hearing in September of this year. Although that is but a few months away, nonetheless, the interim Application by the Father is pressed, acknowledging that it was filed last year. He seeks that his time with [X] progress both in duration and locality so that [X] can spend time with him at his residence and with his paternal family, in accordance with the recommendations by the highly experienced family consultant (Ms S). That Report has been admitted into evidence (Exhibit A). I note that the Report is dated 5th December 2016. To say that the parties have had more than sufficient time to digest its recommendations is an understatement. Put another way, the progression in time has certainly not caught anyone by surprise, and the recommendation was made cognisant of [X]’s then younger age.
Primarily, as it has been since the beginning, a governing factor in making parenting Orders in the current matter is the geographical distance between the parties. Alas, as extensive as the Court’s “powers” are, it does not extend to changing matters of geography! Obviously of significance also is [X]’s age - but he continues to get older, as do we all.
For the reasons that follow, the really quite modest Orders sought by the Father (which otherwise accord with the recommendations of the Family Consultant) are, in my view on an interim basis, in [X]’s best interests.
Minute of Orders Sought by Applicant Father
The Father’s Orders sought, as per his Application in a Case, filed 7th September 2017, were as follows:
Until further Order:-
1)That all extant parenting Orders be discharged.
2)That the parties have equal shared parental responsibility for [X], born 2012 (age 4) (“the Child”).
3)That the Child live with the Mother.
4)That the Child spend time with the Father as follows:-
a) until [X] starts school in 2018, in a four week cycle:-
i) in week 1, from Saturday at 9.30 am to Monday at 4.30 pm in Region A; and
ii) in week 3, from Saturday at 9.00 am to Monday at 4.30 pm in Region B.
b) when school starts in 2018:-
i) every third weekend from Friday at 5.00 pm to Sunday at 4.30 pm; and
ii) during the first week of the Term 1, 2 and 3 school holidays from Monday at 9.30 am to Thursday at 4.30 pm.
c) on special occasions as follows:-
i) during Christmas 2017, from 3.00 pm on Christmas Eve until 4.30 pm on 27 December 2017;
ii) at Easter, from Easter Friday at 3.00 pm until Easter Sunday at 4.30 pm; and
iii) as otherwise agreed between the parties from time to time.
5)That the Father be a liberty to communicate with the Child by telephone every Wednesday and Sunday between 6.00 and 7.00 pm, or at any other time at the request of the Child, with the Mother to immediately offer the phone to the Child and afford the Child privacy without undue distraction.
5)(sic) Unless otherwise agreed:-
a) changeovers that are referred to in Order 3.a.ii, take place at the Mother’s house at the commencement and conclusion of time; and
b) the balance of changeovers occur at McDonalds.
6) In the event of the Child being hospitalised or requiring urgent medical attention the parent spending time with that Child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
7) That the Mother shall provide reasonable notice to the Father, being no less than 7 days prior, of any medical or health appointment that the Child is to attend.
8)If the Father cannot attend a medical or health appointment referred to in Order 8. above, the Mother will within 24 hours of such appointment notify the Father of the outcome of the appointment providing the Father with detail including but not limited to diagnosis, prognosis, any recommendations including treatment and/or scheduling of further appointments.
9) That the Father is authorised by this Order to obtain any information from any treating practitioner, hospital or medical practice that the Child shall attend from time to time, and the Mother will provide authority to the treating practitioner, hospital or medical practice for the purposes of the Father obtaining such information.
10)Each party shall be entitled and shall authorise where necessary from the school(s) that the child may attend to provide each party with copies of all school reports, school newsletters, notification of all school activities, parent teacher nights, and inform each parent of any emergency, remedial or correctional treatment as soon as practicable, and that each parent is entitled to attend school events and parent/teacher appointments.
11)That each party advise the other party and keep the other party advised of their current address and contact number (including both landline (if applicable) and mobile telephone) and advise the other party of any changes to these within 48 hours of such occurring.
12)That each party shall refrain from making critical or derogatory remarks about the other in the presence or within the hearing of the Child and each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other in the presence or within the hearing of any of the Child.
Minute of Orders Sought by Respondent Mother
The Respondent Mother’s Minute of Orders Sought, set out in her Response, filed 24th November 2017, were as follows:
1) That the Father’s Application in a Case filed 7 September 2017 be dismissed.
2) That the Applicant Father pay the Respondent Mother’s costs of and incidental to this Application in a Case on an indemnity basis.
The Family Report
After noting at the outset of her extensive Report (par.2.1) that (a) “[X] lived with his mother and saw his Father for two days and one night alternate Sundays and Mondays in Region B”, and (b) the “issues” for her consideration were (i) [X]’s time with his Father, (ii) [X]’s adjustment and development, and (iii) the parties’ communication, Ms S's Report (Exhibit A) relevantly noted the following in relation to the child and his relationship with his parents (pars.6.1 – 6.10):
[X] and his Father
6.1 [X] was happy and relaxed with his Father. Mr Manthey asked his son how he had enjoyed the pancakes that he had for dinner the previous night. [X] chatted away, although he was somewhat difficult to understand at times. Mr Manthey had brought some toys with him for [X] to play with and asked him what he would like to do. Mr Manthey showed [X] a new book, telling him that his grandmother had bought it for him.
6.2 Mr Manthey said that he was due to see [X] the Sunday after the interviews with me. He had not seen him for almost two weeks. [X] was clutching a comfort wrap which Mr Manthey said he only allowed him to have at night time when he was with him. He said that [X]’s mother always sent it with him. Mr Manthey said that he did not let [X] have it during the day.
6.3 As well as sending clothes for the two days that [X] was with him, Mr Manthey said Ms Bartz would also send a lot of meals. However, he said that he cooked breakfast and tea for [X] anyway and said he would make him a sandwich when he was making himself one for lunch. Mr Manthey said that Ms Bartz would send a supermarket bag full of a lot of food including noodles, chocolates, and other things. [X] continued to chat about horses and about the water he could see outside my office window.
6.4 When I asked [X] if he knew why he had had come to come to Canberra, he told me that he had to come to the right building. He went on to say that he had been trying to find a paddling pool. This did not make very much sense. When his father asked him where he was going after the interviews with me, [X] said that he was going to a paddling pool.
6.5 [X] and his father chatted about the food that Ms Bartz sent with Mr Manthey for [X]’s visits. Mr Manthey then asked [X] if he would like to go fishing the next weekend. Mr Manthey said that they had been fishing previously and said that surprisingly, [X] had a lot of patience.
6.6 In response to Mr Manthey’s query, [X] told me that he liked (hobby) Club. He told me that his horse was called (omitted). Mr Manthey intervened appropriately when [X] put his feet on my armchair.
6.7 Mr Manthey told me that [X] had not been to his place for at least two years. At the end of the observation session, Mr Manthey readily agreed to [X]’s request to take a little plastic toy zebra with him. He told me that he had got the zebra out of some soap. Mr Manthey asked [X] to be sure to return the toy the following Sunday. Regarding clothes for his visits, Mr Manthey said that Ms Bartz provided all of [X]’s clothes.
[X] and his mother
6.8 [X] immediately went to sit on his mother’s knee. We chatted about [X]’s very smart shoes. Ms Bartz explained that because [X] had flat feet and had some difficulties with his toes, he had to have expensive shoes. Ms Bartz encouraged [X] to tell me about his chickens and about the hen sitting on the eggs and what was soon to come out of them. [X] advised me that it took a long time for the eggs to hatch. Ms Bartz talked about a duckling that they had hatched as well. Ms Bartz told me that her parents lived 2km or 3km away from her. Ms Bartz encouraged [X] to tell me that his pony was having a foal. Ms Bartz told me that [X] was very excited about his horse having a foal. They chatted about a poddy lamb that they had as well.
6.9 When [X] spoke in a babyish manner, Ms Bartz encouraged him to use his “big boy words”. [X] became quite excited when he talked about his lamb.
6.10 Ms Bartz encouraged [X] to tell me how he attended (hobby) each week. She told me that he attended daycare one day a week and that her sister was head of his room. Next year, [X] would go to daycare two days a week. He would attend school the following year.
In her detailed comments against agreed Terms of Reference, and her Recommendations, Ms S stated (for ease of reference I have inserted consecutive paragraph numbers rather than, for example, 7.1 – 7.12.2):
COMMENTS AGAINST THE TERMS OF REFERENCE
1) The nature of the relationships of the child with each of the child’s parents and with significant other persons
2) Ms Bartz is [X]’s primary carer and [X] was securely attached to her. Although [X] was relaxed with his father in my office premises, his mother’s and grandmother’s accounts of his anxiety about separating from them prior to contact visits and about talking to his father on the phone, suggests a significant degree of anxiety about this. [X] reportedly has a close loving relationship with his maternal grandparents but did not know his paternal grandparents much at all.
3) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
4) Both parties in this matter recognise the importance of [X] spending time with the other parent and indeed Mr Manthey is not seeking to take him away for a significant amount of time from his mother at all. Ms Bartz also recognised the importance of [X] spending time with his father, but was concerned not to unduly distress [X] by increasing his time with his father too quickly.
5) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
a) either of the parents; or
b) any other child, or significant person, with whom the child has been living
6) [X] would be very unsettled by any significant separation from his mother and less distressed by any prolonged separation from his father, given he sees his father less frequently anyway. [X] does not live with any other children or significant people.
7) The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
8) The parties live at 3 to 4-hour drive apart which is a significant time for any child to spend travelling backwards and forwards in a car if the time with his father is only short. Obviously, there is the petrol cost involved in any travel although both parents appear able to meet it. The stress on the parties could be reduced by them meeting halfway, perhaps at Region C.
9) The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs
10)Ms Bartz impressed as well able to meet [X]’s emotional and intellectual needs. Not surprisingly, given he was her first and only child, Ms Bartz was very focused on [X] and anxious about his well-being. Mr Manthey was also keen to assume a useful role in his son’s life, although I suspect perhaps by virtue of his own upbringing, that his parenting style might tend to be somewhat authoritarian and directive. It was unnecessary for example for Mr Manthey to deny [X] access to his comfort wrap in the brief time [X] was with him, particularly because [X] was likely to be more anxious and needing reassurance while he was away from his mother. Mr Manthey might also have been better to desist from trying to encourage [X] to talk to him on the phone if [X] became distressed. It would also be of concern if Mr Manthey restricted all telephone calls between [X] and his mother when [X] was in his care, although of course it would be appropriate to screen when and how often [X] made any calls.
11) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the reporter thinks are relevant.
12) Despite his mother’s and maternal grandmother’s views to the contrary, [X] did not impress as mature for his age and indeed his speech was delayed and difficult to understand. [X]’s parents both came from similar farming backgrounds and both were well able to encourage [X] to have an active, healthy lifestyle involving (hobbies) as well as other outdoor activities.
13) Each parent’s attitude to the child and to the responsibilities of parenthood
14) See 7.5
15) Any family violence involving the child or a member of the child’s family
16) The only physical violence identified, although not acceptable, was a relatively minor incident between Mr Manthey and Ms Bartz’s sister around the time of separation. Obviously at such a time, emotions were running high. Ms Bartz and Ms Bartz have also suggested that at times Mr Manthey appeared to anger very quickly. This would be frightening to a small child.
17) The state of the father’s mental health and if any problem is identified:
18) The nature, intensity and impact of the problem and in particular the impact, if any, upon the father’s parenting capacity
19) What treatment or services are recommended to address the problem
20) The willingness of the father to address the problem
21) In response to my query, Mr Manthey told me he had never seen a psychologist or a psychiatrist or experienced any mental health problems. He was not aware of any family history of mental illness. Mr Manthey’s scores on a measure of psychopathology could not be interpreted but the validity concerns rather reflected his strong desire to impress and create a positive impression as opposed to any mental health concerns.
22) Mr Manthey told me that he did not drink alcohol and did not smoke cigarettes or use any other non-prescription substances. He said that he hated drugs. Mr Manthey said that very occasionally, he would have a social drink of alcohol. Mr Manthey described himself as being in good physical health and certainly looked fit and well.
23) The state of the mother’s mental health and if any problem is identified:
24) The nature, intensity and impact of the problem and in particular the impact, if any, upon the father’s parenting capacity
25) What treatment or services are recommended to address the problem
26) The willingness of the mother to address the problem
27) Mr Manthey understood Ms Bartz had suffered from depression and anxiety and Ms Bartz readily conceded that she had done. Regarding her mental health, Ms Bartz told me that she did get anxious and said that she had seen a psychologist around the time Mr Manthey first left. When she was 17 or 18, and around the time she met Mr Manthey, Ms Bartz said she was experiencing a little bit of anxiety. She said she was prescribed some antidepressants which she thought assisted her. She said she stopped taking antidepressants when she became pregnant. During her pregnancy with [X], she was later put back on some antidepressants. At the time of interview, Ms Bartz remained on antidepressant medication. The doctors managed her dosage while she was breastfeeding so that [X] was not affected. Ms Bartz was no longer seeing a psychologist and said her medication was managed by her GP. Ms Bartz was not aware of any family history of mental illness.
28) Ms Bartz’s profile on a common measure of psychopathology could not be interpreted due to validity concerns. Such concerns are not uncommon in the test context.
29) In terms of her alcohol use, Ms Bartz described herself as an occasional social drinker. She said she never drank too much so that she could not drive herself home. Ms Bartz said she had never tried marijuana or used any other non-prescription substances.
30) Whether the child is at risk of physical, psychological or emotional harm in the care of either parent
31) [X]’s emotional health could be compromised if he was too quickly separated from his mother for extended periods of time or if his paternal grandfather could not assume a more involved approach when [X] was in his household.
32)Such other issues considered relevant
33) A key issue in this matter is how much time [X] should spend in his father’s care. Obviously, [X] was entitled to become part of his father’s home and extended family environment. However, the distance between his parents coupled with [X]’s immaturity and anxiety are confounding factors in instigating too much time with his father too soon. Despite his mother’s contrary opinion, [X] impressed me as immature for his age and perhaps slightly delayed.
34) A graduated regime would be most appropriate. While ideally [X] would be best to see his father as frequently as possible, the distance makes this difficult. Given their poor communication and opposing views, [X]’s parents are not likely to be able to agree when [X] is ready to progress to the next step in a graduated regime so that it might be best to proceed slowly.
RECOMMENDATIONS
35) That throughout 2017 until [X] is five, that he spends two nights alternate weekends, either Saturday and Sunday or Sunday and Monday nights with his father in Region B;
36) That when [X] turns five in 2017, prior to him commencing school in 2018, that he commences spending two nights every third weekend with his father at his father’s home. Changeovers should be in Region C;
37) That when [X] turns six in 2018, he spends four nights each school holidays with his father;
38) That when [X] turns seven in 2019, he spends half of each shorter school holiday period with his father with consideration being given to him spending two, two week blocks with his father in the longer Christmas school holidays, depending on his presentation by this time.
The Applicant Father’s Written Submissions
The Father’s Written Submissions, filed 21st December 2017, were as follows:
These submissions relate to Father’s Application in a Case filed on 7 September 2017.
1) The issues for determination are: a) whether or not the Father be permitted to spend time with [X] at the Father’s home in Region A (which is recommended by Ms S); and b) whether or not [X] spend time with the Father during the school holidays and on special occasions. The effect of what the Father is seeking is a total of 3 additional nights for 2018 to that recommended by Ms S. The contest is therefore as to the nature of the significant and substantial time that the Father spends with [X].
2) The Orders sought by the Father are largely consistent with the recommendations made by the Family Consultant, Ms S, in her report prepared on 5 December 2016. [X] turned 5 on 2017. Ms S recommended that when [X] turns 5 that he commences spending 2 nights every third weekend with the Father at the Father’s home in Region A. Ms S also recommends that changeovers should take place in Region C. The proposed changeover is mutually convenient in that it is halfway between the parties’ residences. There is no evidence of any risk to [X] spending time with the Father in Region A.
3) What the Father seeks that is different from the recommendations made by Ms S is that he spend an additional night (being a total of 3 nights) with [X] during Term 1, 2 and 3 school holiday periods that would otherwise coincide with the time recommended by Ms S. It is noted that Ms S also recommends that when [X] turns 6 in 2018, that weekend time with the Father continue and that he spend 4 nights each school holiday period with the Father.
4) [X] is currently spending every second weekend with the Father, with such time only taking place in Region B. On 21 December 2016, His Honour Judge Neville made Orders that [X] spend time with the Father commencing on 14 January 2017, each alternative weekend from 9:00am on Saturday until 12:00pm on Monday in Region B. Accordingly, [X] has been spending overnight time with the Father in accordance with this regime for approximately the last 12 months. Since August 2015, the Father has travelled to Region B from Region A on almost every second weekend to spend time with [X]. Since August 2015, the Father has missed spending time with [X] on 3 occasions.
5) To that end, the Father has been dedicated to provide [X] all the benefit that a relationship with his Father can bring. It is disputed that the Father has been inconsistent with his approach to spending time with [X]. The Father has been patient with shouldering the travel to and from Region B from Region A, but also with the gradual approach with respect to time. It is appropriate to submit that progression in a graduated regime has proceeded slowly in this matter.
[X]'s Adjustment & Development
6) The Mother’s resistance to the Father spending time with [X] in Region A appears to be based on the alleged separation anxiety she observes [X] to experience by prolonged separation. The Father contends that [X]’s alleged anxiety is exacerbated by the anxiety that is experienced by the Mother.
7) Since the overnight arrangements commenced in December 2016, the Father has observed [X] to have coped well and there has not been any issues with respect to the current regime or [X]’s ability to adapt. Whilst spending time with the Father, [X] has not suffered any home sickness or anxiety, he no longer asks for his Mother or is wanting to go home. The Father deposes that [X] had been experiencing some difficulty in June 2016, but that [X] is now at a stage where he asks the Father, “Can I stay another night?” and “Are we having three sleeps with you at the caravan park?” Additionally, [X] has expressed views to his Father that he wishes to come to the farm, and that he want to go to his Father’s house. The Father’s experience is in contrast to what the Mother reports to be occurring in her home (this not to be read as to the Father being dismissive of the difficulties reported by the Mother), however this is not uncommon, particularly as children behave differently in different environments and get into habits in their primary place of residence.
8) Ms S reports that [X] was happy and relaxed with his Father. This was in circumstances where [X] had not seen his Father for almost 2 weeks. Throughout the course of her observing their interaction [X] chatted away, and there is no report as to [X] experiencing any separation anxiety.
9) There is no independent evidence from [X]’s treating mental health practitioner that goes to detailing the difficulties the Mother alleges that [X] is experiencing, provide diagnosis, or shed light on what is the product of the anxiety that [X] is experiencing when in the care of his Mother or at changeover.
10) However, the Court does have before it a report from Ms S who recommends that [X] spend time with the Father in Region A.
A Meaningful Relationship
11) The Father seeks an arrangement that allows him to develop his relationship with [X]. It is submitted that a barrier to this is that the Father’s time with [X] only be in Region B. As [X] approaches school age, it is submitted that he can better develop his relationship with his Father that he spend time with him at the Father’s home. [X] does not know a lot more than that his Father lives very far away. [X] is therefore absent any physical connection with the Father’s home. Ms S reports that [X] is entitled to become part of his Father’s home and extended family environment. The Father is not seeking to take [X] away for a significant amount of time from his Mother at all.
12) A prospective approach (in the evaluation of [X] having a meaningful relationship with the Father) indicates that spending time with his Father in Region A is going to be of great advantage to him. The quality of their relationship hinges on [X] being able to share experiences with his Father in the Father’s home environment and is necessary for identity purposes also. It is important that [X] have the ability to connect with his paternal relatives in a physical way. It is reported that [X] ‘recognised his paternal Grandmother face-to-face and went and sat on her knee briefly’ (paragraph 5.79 on page 35). The Father has encouraged and facilitated the relationship between [X] and his extended paternal relatives.
13) Disposition at Directions Hearing on 7 November 2017 It is noted that the solicitor for the Mother submitted at the Directions Hearing that the Mother was ‘not opposing an increase in the Father’s time with [X], but that time should only take in Region B.’ There is no evidence as to why [X] will not cope with spending time with the Father in Region A, or that the quality of [X]’s relationship with his Father can develop if time only take place in Region B; when viewed in context of the submission that there was no opposition to an increase in time.
14) What the Father is now actually asking is that he now spend less frequent time with [X], given that at the time of making of the Orders [X] will be attending primary school. The reality is the only increase in time is the Orders sought in relation to school holiday time, given the weekend time (Friday at 5.00 pm to Sunday at 4.30 pm) is the same duration as the current arrangements. Accordingly, the overall time that the Father spends with [X] will be less than the current arrangement, but will overall better cater [X]’s best needs as he develops his relationship with the Father.
15) The Mother’s evidence provides nothing exceptional as to why the Court ought to depart from the recommendations of Ms S, and make the Orders as sought by the Mother.
School Holiday Time
16) It is submitted that the Court should make additional Orders as to school holiday time for a period of 3 nights. This is an extension of 1 night in addition to the normal weekend time with the Father. It is submitted that an increase of 1 evening will not be disruptive to [X] given it is during school holiday time, it is a very slight increase, and [X] would have been spending 2 x overnights with the Father for about 16 months.
17) Ms S’s recommendations would see a significant jump from 2 nights to 4 nights in 2019. It is submitted that 3 evenings in 2018 school holidays provides a logical graduation that eases into 4 evenings in the 2019 school holidays.
18) Ms Bartz reports to recognise the importance of [X] spending time with the Father, but is concerned not to unduly distress [X] by increasing his time with his Father ‘too quickly’. Given that the current arrangements have been in place now for 12 months, any submission that the approach sought by the Father increases ‘too quickly’ has little traction. There is nothing in the evidence filed by the Mother that indicates why there should be a departure from those recommendations made by Ms S.
19) Ms S does not attend to this issue in her family report. It is submitted that the Court is not bound to strictly apply her recommendations but may reasonably exercise its discretion. If by making such an Order the Court is departing from Ms S’s recommendations, what is therefore exceptional about a departure in this case is that it amends a deficiency with the graduated regime. The holiday Orders sought by the Father therefore allay an issue as to [X] having any difficulty down the track (in 2019).
20) The Father formulated a regime that set about easing [X] into the school year in 2018, and then throughout the course of 2018 and into 2019. The failure by the Mother to file her response before the Directions Hearing on 7 November 2017, has seen a failure now for the Court to be unable to adopt the Father’s arrangement prior to the commencement of school in 2018.
The Respondent Mother’s Written Submissions:
The Mother’s Written Submissions, filed 12th January 2018, were as follows:
Issues
1) The issues in dispute appear to be:
a) The time the child spends with the Father;
b) The terms on which such time is to occur;
c) Whether the child should commence spending time with the Father at Region A;
d) The child’s adjustment and development.
Competing proposals
2) The competing proposals of the parties can be summarised as follows:
a) In his Application in a Case filed 7 September 2017 the Father seeks Orders that the child spend time with the Father alternate weekends, with every second contact visit to take place in Region A in addition to block contact over school holiday periods. The Father also seeks Orders reinstating telephone contact twice weekly.
b) It is unclear whether the Father proposes the arrangement sought by him in his Application commence in 2018 or 2019 noting that, by agreement, the child is due to commence school in 2019.
c) In her Response filed 24 November 2017 the Mother seeks that the Father’s Application in a Case be dismissed.
3) There is a significant disparity in the parties’ evidence as to the child’s development and capacity to cope with the current contact arrangements.
4) The Court is in a difficult position in that there is no independent evidence available to it other than the Family Report of Ms S dated 5 December 2016.
5) It is noted that the matter is set down for Final Hearing on 12 September 2018. Interviews for an updated Family Report are scheduled to take place on 7 June 2018. It is the Mother’s submissions that the opinion evidence in the updated Family Report will be an important piece of evidence that will best enable a review of the interim parenting orders.
6) There has been no significant change of circumstances since the Father’s Interim Application was determined and Interim Orders made on 15 December 2016.
7) The Family Report Writer recommends that the child spend two nights every third weekend with his Father at Region A. In making that recommendation, the Family Report Writer contemplated the Father spending regular time with the child in Region B. That has not taken place. The Mother gives detailed evidence as to the Father not spending time with the child pursuant to Orders on short notice. The Orders sought by the Father depart from the recommendations proposed by the Family Report Writer.
Primary considerations
8) The Mother’s evidence is that the child is at risk of psychological harm if he commences spending time with the Father in Region A in that the child’s separation anxiety will be amplified and he will become distressed.
Additional considerations
9) It is submitted that the following considerations are relevant: section 60CC(3):
Views of the child
a) The Mother submits little weight should be given to the views of the child said to be expressed by the Father.
Relationship of the child with the Father
b) It appears common ground that the child’s primary relationships are with the Mother and maternal family.
c) The Mother’s evidence is that the child’s relationship with the Father is difficult and marked by the child’s reluctance to spend time with the Father.
d) The Father has continued to spend sporadic time with the child notwithstanding the Mother making complaints of the Father’s conduct in material filed with the Court.
e) The Father seeks Orders reinstating telephone contact each Wednesday and Sunday. In doing so, the Father seeks to revive an Order first made on 16 September 2016.
f) The Father suspended telephone contact of his own motion following the release of the Family Report in December 2016. The Father thereafter reinitiated telephone contact once a fortnight in July 2017.
g) The Mother’s evidence is that the child is resistant to telephone contact and distressed during calls.
Relationship of the child with wider paternal family
h) The Father lives with his parents on a farming property. The Mother’s evidence is that the child has no relationship at all with the wider paternal family and that the wider paternal family has refused to acknowledge overtures made by the Mother. The Mother deposes that she has made efforts to foster a relationship with the paternal family notwithstanding the difficulties she has experienced in her own dealings with the paternal grandparents. The Father implicitly acknowledges that the paternal grandparents have not met the child. The Mother submits that the Court should infer from the neglect or failure of the paternal grandparents’ to take up opportunities to spend time with the child that they do not seek to have a relationship with the child.
i) The Family Report Writer comments on the lack of a relationship between the child and paternal grandparents. The Family Report Writer expressed concern that “the child’s emotional health could be compromised if…his paternal Grandfather could not assume a more involved approach when [X] was in his household”. The Father has given no evidence to suggest that the paternal Grandfather is in a position to assume an active role should the child commence spending time with the Father at his residence.
10) Parents’ participation in decision making
j) The Mother submits that she has included the Father in decision making and medical appointments so far as is possible including arranging appointments on days the Father is in Region B to spend time with the child. The Mother’s evidence is that the Father ignores her communications regarding medical appointments and does not attend. The Mother submits that the Court should give weight to the Father’s comments: “I can’t possibly know what plan [X] is on unless Ms Bartz tells me, or [X] tells me”. It clearly open to the Father to make his own enquiries with any of the child’s treating specialists including the child’s general practitioner and psychologist. Notwithstanding he is at liberty to do so, the Father has not done so.
k) In the absence of meaningful communication between the parties as to the child’s special needs, it is difficult to fathom how the Father will be in a position to comfort the child should he suffer an asthma attack or anxiety.
11) Likely effect of any changes and practical difficulty
l) The Father’s proposal does not contemplate the practical difficulties of the child spending time in Region A each month. The Mother deposes to the child suffering from travel sickness. The Father’s proposal places a significant travel burden on the child rather than the non-resident parent. Given the distance and travel, the child will suffer travel tiredness that will interrupt his quality time with the Father. The child already has familiarity in spending time with the Father in Region B.
m) The Father’s Application would require the child to adjust to:
i) An increase in time with the Father in an unfamiliar environment;
ii) Significant travel each month;
iii) Meeting and spending time with the wider paternal family for the first time;
iv) Immediately commence spending significant overnight time with the paternal family who are strangers to the children except for the Father; and
v) All of the above would increase the child’s separation anxiety.
12) Parental capacity to provide for the child’s needs
n) When spending time with the Father, the majority of the child’s needs are met by the Mother including the provision of medication, clothing, food, comforters and items required for sporting commitments.
o) If the child were to spend time with the Father in Region A, the Father would be required to step up into a much more significant care giving role. The Father’s capacity to do so is untested.
p) There is no evidence before the Court either by the Father or paternal grandparents as to what, if any, assistance they are prepared to provide the Father.
q) The Court is unaware of what commitments the Father may have on a day to day basis should the child spend time with him in Region A.
r) The Father gives no evidence as to particulars of his proposed Orders including what sleeping arrangements would be in place or what, if any, assistance his parents and wider family would be willing and able to provide.
13) Attitudes to the child and responsibilities of parenthood
s) The Mother’s evidence suggests that the Father has difficulty meeting the needs of the child and calming him when he becomes distressed. It is submitted that the child’s difficulties observed by the Mother would be amplified should the Father spend time with the child in an unfamiliar environment.
t) The Father denies there being any ongoing issues with the child, including denial of issues separating or any observations of anxiety, anxious behaviours or sleep issues. The Father’s position is absolute and in stark contrast to the evidence given by the Mother and maternal grandMother. It is submitted that the Father does not acknowledge or accept the behaviours of the child observed by the Mother, maternal grandMother and Family Report Writer. Given the Father’s position, it is submitted that the Father has failed to provide to the Court clear and unambiguous evidence of his capacity to manage the child’s anxiety and his emotional wellbeing .
u) Simply put, whilst denying the existence of any issues, the Father seems determined to attribute any issues which may arise to the separation anxiety of the Mother, rather than the child. The Mother submits that this position of the Father gives great insight into the Father’s attitude.
v) In any event, reading the Father’s submissions at its highest, the best interests of the child are met by the Mother’s proposal in the sense that her heightened anxiety will not affect the child. In Starkey v Starkey (No. 2) (2013) FamCA 977 Dawe J said at 179: “…removes any risk to the children’s welfare which may arise as a result of the Father’s limited capacity to provide for the children’s needs and removes any risk that the Mother’s psychological and emotional wellbeing might suffer”.
w) The Mother’s evidence is that she has made repeated efforts to discuss with the Father a joint approach to matters including the child’s behaviour at changeover. The Mother deposes to the Father ignoring her in the presence of the child when she attempts to engage the Father in such conversations.
In the absence of the updated family report, the Court is urged to take a cautious approach so that the child’s emotional and psychological wellbeing will not be compromised.
Consideration & Disposition
All of the usual qualifications apply in relation to the conduct of interim Applications – the Court’s inability to make any findings, the general nature of the competing and often contradictory evidence of the parties, save for the utility of relevant independent evidence, and the significantly curtailed inquiry possible. That said, in determining Orders that are in a child’s best interests pursuant to s.60CA of the Family Law Act 1975 (“the Act”), the Court must, to the degree possible in the circumstances, have proper regard to the considerations set out in the statutory scaffold or perilous pathway in Part VII of the Act.[2]
[2] Among many places, see the discussion of the conduct and resolution of typically attenuated interim proceedings in Vanzin & Vanzin [2014] FamCAFC 245 at [17] – [22]; Perry & Perry (2015) FLC ¶93-669 at [12] – [14].
Unlike other matters where there is no independent evidence, as already observed, the Court has the benefit of the significantly detailed Report of Ms S from December 2016. Alas, apart from strong but very recent opposition by the Mother, notably that (a) the Court should proceed “cautiously” (I did not and do not understand that the Court had or has a reputation for being “incautious” or unduly or needlessly reckless in its decisions), and (b) the parties should obtain an updated Report, little seems to have happened as a result of the Family Consultant’s evaluation and recommendations. Indeed, given the inaction, not to mention the delay by the Mother in ventilating her formal opposition to the Family Report and its extremely thoughtful and restrained recommendations, one might not unreasonably inquire – why did the parties bother getting such a detailed Report?
I note that interviews for an updated report are scheduled for early June, obviously in preparation for the final hearing. I also observe that Notation A to Orders made on 21st December 2016 suggested or indicated that an increase in [X]’s time with his Father was likely in the latter half of 2017, thereby giving further notice of the possibility of the Court increasing the child’s time with the Father in accordance with the Family Report. There does not seem to have been any demur by anyone to that comment in those Orders in December 2016 or any time since, until the Orders made on 12th April 2018.
To state again, the particular question or issue for determination relates to [X] spending time with his Father and the paternal family in Region A. It was raised in the Family Report quite some time ago. It is now raised again by the Mother in the context of the child’s alleged anxiety being away from her. The Father denies the child’s separation anxiety. The Mother also says – again placing the Court in the usual “he said/she said” situation – that the child has no relationship with the wider paternal family. By way of comment, I simply observe that this must be a self-evident and self-fulfilling reality if, as is the case thus far, the child has not spent time with her family and his family in Region A. It will remain the case while ever the child’s time with the Father is restricted to the Region B area.
What is rather curious is how much in the Mother’s submissions of January 2018 she refers to and relies upon certain factual matters set out in the Family Report of December 2016. Clearly, there must have been some factual changes over the past year or more but there is little or no reference to them.
Issues of communication between the parties, as noted by Ms S, seem to remain relevant to the current dispute. There is little that I can do about them at the present time.
I should also note – again – that, in my view, if the Mother had concerns in relation to the Family Report from December 2016, and was also on notice of the likelihood, or at least the possibility, of an increase in the Father’s time because of the Notation to the Orders of the Court made on 21st December 2016, she should not have waited until approximately April 2018 to protest about them.
In my view, it is not unreasonable, in fact it is very reasonable to assume that as [X] gets older, his capacity to cope with change, including being away from his Mother for relatively brief periods of time will surely and steadily increase. Subject to the expert or updated report to which I have referred, while the Court cannot change matters of geography between the parties, at least not with any ease, it is more likely than not that [X] growing up and his parents working out matters of communication and information are the basic keys to the resolution of this matter, both on a short-term basis and beyond.
Both parents clearly love [X]. Both parents, in different ways, clearly have his best interests at heart. How much one parent may be over-anxious, and the other rather more robust, in their assessment of [X] and his needs, and or of their own needs, the Court is unable to say or otherwise comment on at this juncture in the proceeding. Possible questions of possible hyper-vigilance (and other things) are for another day, relevant evidence and submissions.
Otherwise I accept and adopt generally the Father’s submissions.
Given the narrowness of the immediate contest, in my view it is unnecessary at this time to traverse the considerations relevant to both s.61DA and s.65DAA. It is the basic requirement for a Court to “quell the controversy before it.” A Court should not traverse matters that are not formally before it and or to risk wasting further resources. Moreover, here, no submissions were made by either party in relation to anything other than the immediate controversy of [X] travelling to Region A and spending time with his Father at the Father’s residence at Region A. In any event, on the modest evidence before me there is little to rebut the presumption of equal shared parental responsibility under s.61DA.
Given how modest the Father’s proposals are, for a genuinely gradual change in [X]’s time with him, and noting that there is no suggestion anyway of changing [X]’s primary residence away from that of his Mother, in my view, the Orders proposed by the Father are in [X]’s best interests on an interim basis. Such a course is based upon and supported by the only independent evidence before the Court as set out in the Family Report of Ms S.
Given how genuinely narrow the parenting issues are, and fearing how much has already been expended in time, legal fees and other resources, “we” will all await with interest the updated report which one hopes will provide a basis for the long-term resolution of “what to do with [X]” – in the best possible way. He needs both parents. He needs appropriate interaction with both families. There needs to be a breakout of that genuinely scarce commodity called “common-sense” and applied liberally so that the parents can focus on parenting rather than being mired in the suffocating and financially and emotionally exhausting processes of litigation.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 12 June 2018
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