May & Peter (No 2)
[2023] FedCFamC1F 254
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
May & Peter (No 2) [2023] FedCFamC1F 254
File number(s): SYC 1472 of 2021 Judgment of: ALDRIDGE J Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where the parties agree that overnight time with the father should commence – Where the parties cannot agree on the frequency – Single expert report – Orders made for overnight to commence and gradually increase. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 31 March 2023 Place: Sydney Counsel for the Applicant: Mr Cummings SC with Ms Wilson Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Richardson SC with Mr Roberts Solicitor for the Respondent: Barkus Doolan Winning Lawyers ORDERS
SYC 1472 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PETER
Applicant
AND: MS MAY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
6 APRIL 2023
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The child, X born 2015 (“the child”) live with the mother.
2.Unless otherwise agreed between the parties in writing, the child spend time with the father as follows:
(a)From the date of the making of these orders until 5 April 2023:
(i)each Thursday from after school, or 3.00 pm, to 7.30 pm (and the father will ensure that the child attends her appointment with Dr N if scheduled to occur during the father’s time) commencing the first Thursday after the date of these orders;
(ii)each Friday from 7.30 am until the commencement of school commencing the first Friday after the date of these orders;
(iii)each Sunday from 9.00 am to 5.00 pm, commencing the first Sunday after the date of these orders;
(b)During the school holidays falling at the conclusion of Term 1, 2023 as follows:
(i)From Saturday at 5.00 pm to 12.00 pm on Sunday on the weekend falling at the end of Week 1 of the school holiday period and
(ii)From 9.00 am to 5.00 pm each Monday, Wednesday and Friday in Week 2 of the school holiday period.
(c)From the commencement of Term 2, 2023 until the conclusion of Term 2, 2023:
(i)each Thursday from after school, or 3.00 pm, to 7.30 pm (and the father will ensure that the child attends her appointment with Dr N if scheduled to occur during the father’s time);
(ii)each Friday from 7.30 am until the commencement of school;
(iii)each alternate weekend from Saturday at 12.00 pm to 12.00 pm on Sunday, commencing the second weekend of the school term and each alternate weekend thereafter.
(d)During the school holidays falling at the conclusion of Term 2, 2023 as follows:
(i)From Saturday at 5.00 pm to 5.00 pm on Sunday on the weekend falling at the end of Week 1 of the school holiday period;
(ii)From 9.00 am to 5.00 pm each Monday and Wednesday in Week 2 of the school holiday period;
(iii)From Thursday at 5.00 pm to 9.00 am on Friday in the week falling at the end of Week 2 of the school holiday period.
(e)From the commencement of Term 3, 2023 until the conclusion of Term 3, 2023:
(i)Each alternate Thursday from after school, or 3.00 pm, to the commencement of school on Friday, or 9.00 am, commencing on the first week of the school term and each alternate week thereafter (and the father will ensure that the Child attends her appointment with Dr N if scheduled to occur during the Father’s time);
(ii)Each alternate weekend from Saturday at 12.00 pm to 5.00 pm on Sunday, commencing on the second weekend of the school term and each alternate weekend thereafter.
3.In the event that the child is not otherwise spending time with the father pursuant to these orders, the child’s time with the mother shall be suspended, and the child shall spend time with the father as follows:
(a)From 9.00 am to 6.00 pm on Father’s Day;
(b)On the Father’s birthday from 3.00 pm to 7.00 pm if the birthday falls on a school day or 9.00 am to 5.00 pm if the birthday falls on a weekend;
(c)On the child’s birthday, from 3.00 pm to 5.30 pm if the birthday falls on a school day or 9.00 am to 5.00 pm if the birthday falls on a weekend.
4.In the event that the child is not otherwise living with the mother, the child’s time with the father shall be suspended, and the child shall spend time with the mother as follows:
(a)From 9.00 am to 6.00 pm on Mother’s Day;
(b)On the Mother’s birthday from 3.00 pm to 7.00 pm if the birthday falls on a school day or 9.00 am to 5.00 pm if the birthday falls on a weekend;
(c)On the child’s birthday, from 3.00 pm to 5.30 pm if the birthday falls on a school day or 9.00 am to 5.00 pm if the birthday falls on a weekend.
CHANGEOVER
5.For the purposes of the child’s time with the father pursuant to these orders, the mother will deliver the child to the father’s residence at Suburb C at the commencement of his time with the child and the father will return the child to the mother’s residence at Suburb P at the conclusion of his time with the child unless such time concludes or commences at the child’s school pursuant to Order 2 above and in those circumstances the father shall deliver the child to school at the conclusion of the father’s time or collect the child from school at the commencement of his time.
COUNSELLING
6.The parties do all things and sign all documents necessary to ensure the child’s continued attendance upon Dr N to assist the child in dealing with her anxiety issues and each of the parties will follow Dr N’s recommendations in relation to frequency of appointments and any further treatment that the child may be assisted by.
PROCEDURAL ORDERS
7.The parties are to file and serve one consolidated parenting affidavit on or before 30 June 2023.
8.Any affidavits from other witnesses are to be filed and served on or before 21 July 2023 with one affidavit per witness.
9.Each party is to file and serve a case outline, identify the orders sought, evidence to be relied upon, relevant chronology and key submissions on or before 28 July 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym May & Peter (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
These are interim parenting proceedings between Ms May (“the mother”) and Mr Peter (“the father”) pending a final hearing which will take place from 7–10 August 2023. The parties have one daughter, X, who was born in 2015.
The dispute between the parties is narrow. Each agrees that X should commence overnight time with the father in accordance with the recommendations of Mr Q, the single expert psychologist who has provided a report dated 13 September 2022 (“single expert report”). However, despite the contents of that report which included the exhortation to the parties that “litigation will be associated with a much worse outcome for [X] and her parents both in the short-term and in the long-term” (Single expert report, paragraph 54) and that “the focus should be more on clinical, not legal intervention” (Single expert report, paragraph 57), the parties have been unable to agree on when and in what manner overnight time should occur.
The mother proposes that overnight time begin from the commencement of Term 2 (26 April 2023) and be from 5.00 pm on Saturday to 12.00 pm on Sunday each alternate weekend. The time will increase in Term 3 (18 July 2023) to 5.00 pm on Saturday to 5.00 pm on Sunday. No second overnight time is suggested.
For his part, the father seeks that overnight time commence immediately, in alternating weeks, from after school on Thursday to before school on Friday and from 9.00 am on Saturday to 7.00 pm on Sunday. For Terms 3 and 4, the overnight time increases to every Thursday from after school to before school on Friday and each alternate weekend from 9.00 am on Saturday to before school on Monday.
On a hearing such as this, the Court cannot make findings that are the subject of controversy but, for the purpose of this application there were few such disputes. Both parties relied heavily on the report of Mr Q, but emphasised different parts of it. The main issue is the effect on X of the proposed changes in circumstances (s 60CC(3)(c) of the Family Law Act 1975 (Cth)).
Similarly, this is not the occasion to address the question of parental responsibility. That is best left to the final hearing and neither of the parties suggested otherwise.
Mr Q succinctly described the difficulties facing X in the following paragraphs, which largely accords with the evidence each party gave of their interaction with her.
4.At the very core of this dispute is that [the father] and [the mother] have very different beliefs, and observations in relation to [X]. According to [the father], when [X] is with him, she is confident, outgoing, relates warmly, engages easily, has an excellent relationship with [the father’s partner] and her brother [R], clearly communicates a level of comfort, tells him that she misses him, and obviously wants to spend more time with him. According to [the father], previously, he has had overnight stays with [X] and she managed those comfortably and confidently, but these all stopped when [the mother] discovered his relationship with [the father’s partner].
5.In contrast, [the mother’s] observation of [X] is that she is anxious prior to going to her father, that she complains about abdominal pain, tells her that she misses her mother, that she does not want to go, and upon her return she is clingy, anxious, has sleep-related difficulties, nightmares, and wants her mother to either co-sleep with her or to lay with her until she falls asleep. During my interview, [the mother] confirmed that [X] also has pervasive fears, that she worries that something bad will happen, she hears noises at night, finds it difficult to settle, needs continuous reassurance, actively seeks comfort from her, the family dogs, or her nanny who regularly visits on a Friday night; [the mother] generally described [X] as unsettled, and more fretful around spending time with her father.
(Single expert report dated 13 September 2022, paragraphs 4–5)
Mr Q’s observations of X confirmed the views of the parties. He said:
7. My observations of [X] were exactly as those described by her parents.
8.When in the company of her mother, she was more tentative, cautious, hesitant, even circumspect. When interviewed individually, she spoke about her anxiety, her reluctance to spend time with her father, her feelings of discomfort, her worries; she spoke about abdominal pain, problems with separation, and night time fears and having a feeling that something bad might happen; she spoke about intrusive, recurring and troublesome thoughts and worries. After having seen [X] with her father for the purpose of this report, I was contacted by [the mother], by email, who advised that after the visit, [X] had been anxious, unsettled, clingy, sleep disturbed, fearful, more regressed at night, and generally more unsettled. I think it extremely likely that this description of [X] and her behaviour provided by [the mother] is accurate, and an actual portrayal of [X’s] presentation after having spent time with her father; my observations of [X] were completely in accordance with the description of her behaviour given by [the mother].
9.When [X] was seen in the company of her father however, her behaviour was completely different. Notwithstanding whatever anxiety and reluctance she conveyed prior to transitioning into her father’s care, examples of which I both heard and observed, upon greeting her father and once away from her mother’s home, her demeanour altered significantly, as she became observably more buoyant, more talkative, outgoing, enthused and engaged; by the time we had arrived at the home of [the father] her disposition had changed completely as she bounced out of the car and enthusiastically engaged with her father, [the father’s partner] and her brother; she was assertive, confident, outgoing, even somewhat demanding. She related easily and comfortably with [the father’s partner], actively and enthusiastically engaged with [R], and confidently approached her father to participate in a range of activities from using the gymnastics set in a downstairs room, to going in for a swim and riding the paddle board in the pool notwithstanding the weather.
10. The difference in [X’s] behaviour was striking.
11.In the company of her father, she was compellingly confident, assertive, enthusiastic, and actively seeking of his attention to her and her activities. There was no scintilla of anxiety, reluctance nor hesitation, as she entered into easy free-flowing conversation, discussion, and a comfortable serve and volley quality with both her father and [the father’s partner]. In the most observable sense, she fitted straight in, made herself comfortable, sat herself down, expressed her views clearly and confidently, and was very much at ease.
(Single expert report dated 13 September 2022, paragraphs 7–11)
This led to the opinion that X’s presentation was “significant, and is associated with poor, long‑term prognostic outcomes” (Single expert report, paragraph 12).
Mr Q then observed that it was not correct to say that the origin of X’s difficulties must lie predominantly within the realms of her relationship with one or the other of the parties (Single expert report, paragraph 14). Instead Mr Q said:
19.To [X], her parent’s relationship is not safe, she does not feel secure, and she understands that the emotional bridge that connects her parents to be fraught and difficult, and so the prospect of transitioning across that bridge leaves her feeling anxious and apprehensive. By way of analogy, the emotional bridge that connects her parents, which she traverses at each transition between her parents, does not feel to her to be sturdy or robust but instead feels like a twisting rope bridge with broken slats and for [X], the crossing of that emotional connection leaves her feeling unsafe and unsure. From [X’s] perspective, once she crosses the bridge and gets to the other side, regardless of whether it is to her mother or father, she feels safe, she feels secure, and she may even express a reluctance to return; it is the transitions that cause to her the greatest difficulty, create for her the greatest anxiety, evoke within her feelings of danger and threat, and from a psychological perspective, activate her attachment system.
(Singe expert report dated 13 September 2022, paragraph 19)
It is unnecessary to refer further to most of the balance of the report which expands on the point made in the paragraph just quoted.
As to the way forward, Mr Q described the difficulty as:
42.From a psychological perspective, the simple moving between parents is for [X] fraught and challenging; in response to this potential threat and danger she clings and regresses, is reluctant to separate, and upon her return to the care of her mother her attachment system is activated, hence the clinginess, heightened anxiety, and greater dependence, and likely reflects her more anxious temperament, the fact that she cannot settle, feel safe, be confident in her relationship with her father and transition confidently and comfortably between her parents is a significantly greater problem; it is extremely likely that despite this response and reaction that her experience whilst in the care of her father is exactly as described by him and observed by me.
(Single expert report dated 13 September 2022, paragraph 42)
Therefore, some form of intervention was required, but not litigation which was “quite possibly the single most unhelpful intervention… and at worst likely to… cause her to become even more anxious” (Single expert report, paragraph 49). Yet, here we are. X does not yet have parents “in support of her relationship with each parent” (Single expert report, paragraph 51).
This led to the following recommendations, with which the parties agree:
58.The path moving forward must be to gradually increase the time with her father, support and assist her with transitions, confront her directly with the experience that both her parents are able to be there, support her, comfort and protect, and that whatever her fears and whatever her worries these will not reach fruition. The challenge will be at what pace to move forward.
…
63.She needs to be seeing her father and more regularly so, for longer periods, building into overnight stays. Crystal ball questions are by far the most difficult to answer, and so questions about how, when, at what pace and for how long she should spend time with her father are likely to be a source of conflict; there is no single right answer, although the process of moving forward, having longer overnight stays and shifting from frequent visits of short duration, to less frequent visits of longer duration should clearly be the therapeutic outcome with the goal being to achieve a greater sense of continuity and longevity of care, and not brief and fragmented care; consistency, stability, predictability and routine are cornerstone considerations and are of lynch pin importance.
…
65.An incremental approach is clearly preferable, and could be constructed to look like the following:
a.[X] continues to see her father in the mid-week and on each Sunday as she does currently;
b.A mid-week contact each week after school and for dinner, and each alternate Saturday and Sunday;
c.A mid-week contact each week after school and for dinner; overnight each alternate Friday with a pick up from school, and all day Saturday and Sunday each alternate weekend;
d.A mid-week contact each week after school and for dinner; overnight each alternate Friday and Saturday night, with the pick-up from school, and a return to her mother on Sunday night;
e.A mid-week contact each week after school and for dinner; overnight each alternate Friday until Monday morning with pick up and drop off from school;
f.Each alternate Thursday night overnight, and each other alternate weekend from Friday until Monday morning;
g.Each alternate weekend on Thursday until Monday morning and overnight Thursday the other week. This would entail her spending 5 nights with her father in a 14 night cycle. In the social science vernacular, shared parenting equates to a minimum of 35% of time in the care of one parent or the equivalent of 5 nights in a 14 night cycle. There is no evidence to suggest that any number of nights is in and of itself associated with a better outcome although shared parenting arrangements when executed well correlate with best long-term adjustment of the children. Regrettably, the opposite is also true that is the children whose parents separate maintain high levels of conflict and share their care have children who do worse than any other group.
h.There is a compelling body of social science research that states clearly and unequivocally that children whose parents separated, and his father is more involved in and around the children's school lives do better academically socially and behaviourally and especially so in girls. I note the cognitive assessment completed in relation to [X] and that the test scores that suggest that she is capable student, has specific areas of difficulties, but is likely underperforming. I would encourage a complete formulation including her emotional state. A similar graduated approach to holiday contact would be sensible.
(Single expert report dated 13 September 2022, paragraphs 58, 63 and 65)
Following the receipt of the above report, the parties entered into a parenting plan on 20 October 2022. It proposed that overnight time commence on 20 December 2022 and that there be overnight time weekly thereafter. That time was to take place in the context of the appointment of Dr N to provide therapeutic assistance to X, agreed family therapy and a mediation to take place on 24 January 2023.
Unfortunately, other than for the appointment of Dr N, the plan was not implemented.
Apart from the anxiety of X and the difficulties associated with transitioning between the two households there is no suggestion that there is any risk of harm to her from either parent.
The final hearing is not far away. X and the parties will again be interviewed by Mr Q who will provide an updated report for that hearing.
It is to be expected that the introduction of overnight time will be difficult for X and that she will need assistance, support, and time for her to settle into the new arrangements rather than still be going through a period of transition at the time of the interviews for that report.
I also bear in mind that, in accordance with the parenting plan and the recommendations of Mr Q, that overnight time should have commenced last year.
It follows that overnight time with the father should start sooner rather than later. There is, however, a need to proceed gradually and not to flood overnight time onto X.
Therefore, overnight time with the father will commence on the first Saturday of the school holidays commencing 5 April 2023, with time extending to a full 24 hours from the commencement of Term 2.
A second night per fortnight, commencing from after school Thursday, 22 June 2023 (that is, the end of Term 2, 2023) will then be introduced. That is sufficient for the present.
The balance of the orders are largely agreed.
As best as can be done on a limited hearing such as this, I consider that the orders are in X’s best interests.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 6 April 2023
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