McPherson and McPherson

[2018] FamCA 44

FAMILY COURT OF AUSTRALIA

MCPHERSON & MCPHERSON [2018] FamCA 44

FAMILY LAW – CHILDREN – Interim proceeding – Where there is one child aged four years – Where the father seeks overnight time with the child – Where the father has previously spent day only time with the child as per previous orders – Where no order is sought for parental responsibility – Where nothing has happened since previous orders were made to provide a reason to make a significant change – Where there is no expert to recommend overnight time – Where overnight time will impose additional stress on the mother who is currently pregnant – Where no overnight time is ordered.

Family Law Act 1975 (Cth) s 65DAC

APPLICANT: Ms McPherson

RESPONDENT: Mr McPherson

INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

FILE NUMBER: SYC 4540 of 2016

DATE DELIVERED: 11 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Horton Rhodes Legal

COUNSEL FOR THE RESPONDENT: Mr Sansom SC

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blackman Legal Pty Ltd

Orders

1. Until further order, unless the parties agree to the contrary in writing, orders are made in terms of paragraphs 1, 2(a), 2(d), 3, 4 and 5 of the document titled “Orders proposed by ICL” (Exhibit 1 dated 11 January 2018), as set out hereunder:

   1.      The child live with the Mother.

   2.      The child spend time with the Father:

   (a)Each alternative Thursday from 7.30 am to 3.00 pm at the Father’s Central Coast residence with the Mother to deliver the child and pick the child up.

   (b)…

   (c)…

   (d)By Skype once per week at a time agreed by the parties, or failing agreement on Monday at 6.00 pm.

   3.      In relation to all times, the Father is to be present at all times.

   4.      That the Mother be permitted to travel to the UK with the child for one trip in 2018 for up to 3 weeks.

   5.      That during the travel the Mother arrange for the child to Skype with the Father on at least 3 occasions per week.

2. By consent an order is made in the terms of the document titled “Order” (Exhibit A dated 11 January 2018), as set out hereunder:

   1.      That on 8 February 2018, or such other date as may be advised by the Father to the Mother, the Mother shall cause the child to be delivered to the Father at C Hospital for the purposes of the child meeting her new sibling for a period of up to three (3) hours and for the purposes of this Order:

   1.1The father will meet the mother in the ground floor lobby café for changeover; and

   1.2The father will notify the Mother via text message when the child is ready to be collected.

3. Pursuant to s 62B and s 65DA(2) 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 these particulars are included in these Orders.

4. The Court notes that the father seeks an order that the child be permitted to travel with him or attend upon him in the US in August 2018 and that matter is under active consideration by the mother.

5. Leave is granted to the parties to restore the proceedings to the list in relation to that issue.

6. In the event that there is an agreement between the parties to the appointment of a Chapter 15 expert in the substantive parenting proceedings leave is granted to the Independent Children’s Lawyer to provide an agreed minute to the chambers of Justice Loughnan within 21 days as to the appointment and instructions to be given to such an expert and in the event that that is not done an order will thereupon come into effect whereby a report is to be prepared by the nominee of the Manager of Child Dispute Services dealing with, in particular, the capacity of the relationship between the father and the child to survive a relocation of the child to the United Kingdom, the capacity of the father and of the father’s partner to care for the child, family violence alleged against the father in relation to the mother, and such other matters under s 60CC Family Law Act 1975 (Cth) as the family report writer sees appropriate including those matters raised with that report writer by the parties.

7. In either event the parties facilitate the attendance of the child on the report writer at times and dates requested by the report writer.

8. The Court notes that it is proposed on behalf of the mother that in the event that there has been no amended Application filed in her case which affects the joinder of the father’s partner to the proceedings for the purpose of property settlement within 21 days from today’s date the Court can proceed to make directions in relation to the hearing of the substantive proceedings without further concern as to that issue.

9. The proceedings be expedited.

10. It is requested that the Independent Children’s Lawyer cause the proceedings to be restored to the list at a time when the dates for the appointment for the Chapter 15 expert or in the event that there is to be a family report, the family report writer have been fixed and the purpose of that appointment will be to make orders for trial dates, the filing of lay evidence, the completion or dispensing with the requirement for a conciliation conference and any other orders in relation to treating expert’s and case outline documents.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McPherson & McPherson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC4540 of 2016

Ms McPherson

Applicant

And

Mr McPherson

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child X.  She is four years of age.  Her mother is Ms McPherson (“the mother”) and she will soon be 40 years of age.  She says that she is self-employed.  Mr McPherson (“the father”) is 35 years of age.  He is also self-employed.  The mother has had a two-year relationship with Mr D, who is a UK citizen and she is due to give birth to a child to him in July.  The father has re-partnered with Ms L.  She has three children, F, G and H, who are 10, eight and six years of age.  They might be a little bit older than that now.  She is to give birth to a child with the father in February.

2. The parties were in a relationship from 2010, were married in 2012 and separated in July of 2014.  On separation the child the child went with the mother and her time with the father has been sporadic.  The child has been diagnosed over time with some educational, speech and global delays.  Recently there has been a multi-disciplinary assessment of the child by the C Hospital.  She has features of a condition on the autism spectrum, but is perhaps too young for a diagnosis to be made at this stage.  According to the assessment the features are not significant.  She has some work to do in terms of the way she takes on information and learns.  She is a bit behind in terms of her development.

3. Interim parenting orders were made in the Federal Circuit Court, as well as an order transferring the proceedings to this Court.  The parenting orders were upset on appeal, largely because the reasons for judgment did not match the orders.  Nevertheless, the parties agreed to put back in place the orders that were made in the Federal Circuit Court, pending the matter being reconsidered by this Court.  This case was listed before me in October 2017.  Some issues were resolved between the parties, but there remain issues in relation to interim living arrangements for the child.  I gave leave to the parties to bring the matter back if an interruption in the father’s time could not be restored by agreement.  It could not and on 17 October 2017 I put in place an arrangement that had the child seeing the father every Thursday for six hours each alternate week on the Central Coast and in the intervening weeks in Sydney for a shorter period. 

4. Those orders were made for reasons that were given at the time.  The child was not to be left alone with the father’s partner, there being a concern about the father’s partner arising out of problems that had come to the attention of the state authorities.  

5. The matter has been restored to the list today because the father proposes that the day only arrangements be changed into overnight arrangements.  The child is now represented.  The mother and the child’s representative propose an arrangement whereby the existing pattern continue with one amendment to accommodate a compromise the parties made themselves to address the problem of traffic between Sydney and the Central Coast.  That involved moving the times a bit earlier on the Central Coast days.  They also propose that the father have the option of an additional day during a week, necessarily in the Sydney area.  The Independent Children’s Lawyer (“ICL”) proposes that the option be on a flexible basis, with the father to notify the mother.  The mother agrees with that proposal in principle but does not agree that it should be flexible.  She says that the additional day be a Monday. 

6. The remaining issues seem to be agreed.  Both parties want to take the child out of the country.  The mother for a trip of up to three weeks in the course of this year.  The father agrees with that, but he too would like orders that the child come with him or be available in the US in August when he marries his partner.  The mother does not agree with the father’s proposal but there being a way that the child could attend the wedding.  But for the fact that she is going to give birth about that time, she would have proposed that she take the child to the US and facilitate the attendance at the wedding.  The parties have made similar arrangements for overseas travel since separation.  In 2015 the family found itself in the UK and there have been some other compromises of that sort.  The mother does not want the child simply to go with the father for a week, but does not rule out that there might be another way of facilitating her attendance.  Through her counsel the mother asks that I leave that issue open, which I will do.

7. The parents agree that the child will be made available for the purposes of attendance on the father’s partner when she gives birth to her child, due in February.  There is also an agreement in relation to Skype communication.  The main issue is about overnight time.  That will have an effect on the question of the August travel. 

8. For the father, it is said that his proposal will mean a change towards him having substantial and significant time, which will allow the child to be part of significant aspects of her father’s life and him to be part of her life.  That would involve time during the working week and during the weekend.

9. On any view, what the parties have in place under the existing orders is not substantial and significant time.  The father says that his proposal is a worthwhile aim in itself.  In this case, he says that the change will have other benefits.  The father does not accept the mother’s explanation as to the cause or consequences of the child being clingy or upset at handover but says that overnight time will reduce the occasions of handover and therefore any stress caused by handover.  The argument would run, if the time is more extensive and less frequent, that means that the proportion of the time in each instance that is lost in the unpleasantness of travel is reduced and that is true.

10. It was submitted that there is not no other indication against the father’s proposal.  It is argued that there is no suggestion in the family consultant’s report that it would not be a good idea.  No suggestion in the multidisciplinary report that is counter indicative of overnight time or more extensive time.  The mother’s case is that the child is upset at handover.  As recently as 8 January there was a handover which involved a child, limpet like, hanging on the mother’s legs, being very slow to move to the father.  The mother is concerned about the child’s verbal and physical reaction on going to the father.  She notes that the child showed discomfort during the interview with the family consultant.  The child curled up when presented with a room with both the parents in it, took some time to settle down and was very hesitant with the father.

11. The mother had residual concerns arising out of her own experience of the father and arising out of the paternal grandmother’s reports about the father.  The paternal grandmother confirmed the mother’s concerns about the father having a violent temper.  The mother has residual concerns notwithstanding the prescription in the existing orders, about the capacity of the father’s partner.  The mother notes that there has been some inconstancy in the evidence about the new partner, that there was a representation made on the last occasion that the father’s partner could not drive because of a medical condition.  The mother says that she saw her driving a few days later.  The mother is still concerned about the reports made to the state authorities in relation to the subject child being left unattended.  She is concerned about reports of a verbally violent relationship at times between the father and his new partner.  The mother is also concerned, and this is an argument against both households, that they will both be distracted by impending births and there might be less time or less attention or less care about the child.  In summary, the mother opposes overnight time.

12. For the father it is noted that the K Group reports show that any upset and clinginess was dissipated quickly when the father spent time with the child, and that the observations of the child in his household are completely inconsistent with the concerns raised by the mother, and with the observations made on that one occasion before the family consultant.  The father seeks a move to overnight time.  The ICL submits that we should be cautious and not move to overnight time now. 

13. Orders are to be made in the best interests of a child.  The legislature since 1976 has slowly mounted a labyrinth of conditions around that proposition.  As to this particular case, no orders are sought in relation to parental responsibility. 

14. The stream of logic in Part VII of the Family Law Act 1975 (Cth) (“the Act”) starts the task of decision making. No order is sought about parental responsibility, so I will not make one. There is a presumption about there being an order for equal shared parental responsibility. It is rebutted in circumstances of family violence, and here we have significant evidence of family violence. I cannot make findings about it, but there is evidence supporting that claim. There is material provided by the parties and in police records that would give support to an argument about it.

15. The mother attaches angry emails and messages from the father to her documents that could amount to family violence and she alleges controlling behaviour in terms of money.  The allegation is that when the father does not get what he wants, he threatens to punish the mother in terms of financial support.  That would amount to family violence.  So for the purposes of today, it is not critical.  I will not be making an order for equal shared parental responsibility.  I am not asked to make any order about parental responsibility. 

16. Therefore s 65DAC of the Act does not require the Court to consider with a view to ordering any particular pattern of living arrangement such as equal time or substantial and significant time. However, it may be appropriate to consider those arrangements in any event, in considering what is in the best interests of the child would be the best living arrangement.

17. On the application of the father, on 17 October 2017 I made orders in the best interests of the child that provided for a day-only arrangement.  Nothing has happened since then to provide a reason to make a significant change.  The court needs to be reasonably comfortable that a variation of orders will be better for a child than leaving things as they are.  There is no presumption that there will be overnight time for a child at four years of age or five years of age or six years of age or 10 years of age. 

18. In intact families, children spend overnight time away from one or more of the parents when they are one or two or six months of age and that is not a problem.  Unfortunately the child belongs to a category of family that does not fit that description.  Her parents are suspicious of each other and angry with each other, and that situation has lasted for years.  She does not live in an environment where everywhere she looks, there is happiness and joy.  Even at four years of age she will have picked up that there is angst between her parents.  Perhaps that is the reason why she curled up on the couch when Ms E saw the parties. 

19. It is not irrelevant that the mother is anxious about the child in the father’s care.  The parties’ arrangement has the mother as the primary caregiver.  The parents put that arrangement in place on the day they separated.  It was the mother who took the child away.  I am not being critical of the parents.  That decision might have been a reflection of their shared understanding of the relationship that each of them had with the child.  But that means that she is particularly important to the child.  The mother is anxious but it is not her case that the mother’s parenting would be impaired if an order is made inconsistent with her views.  It is just that she would be particularly worried if there was overnight time. 

20. Just because day-only time works, does not mean overnight time will work better.  It might be that we are worried about nothing and it might be that overnight time would be better, but there is no way of knowing that.  We do not have an expert to recommend it.  Mr Sansom and I are left trying to parley our skills into those of another profession in trying to interpret the child’s behaviour and work out what might be the causes of it or the impact of it. 

21. There are orders in place that provide for time.  They are not a stunning success.  I gather that the father feels that they are more successful than does the mother.  By and large the parties have made the ordered regime work.  

22. There are a couple of extraneous matters:  The father moved to the Central Coast without notice to the mother and, of course, without her agreement.  That move has severely limited the prospect of any flexible arrangement for the child.  It has exposed the child to an unpleasant journey on a regular basis and it has done the same for the parents.  Whatever might be said about that, it was not the fault of the mother, let alone of the child.

23. There is a further complication because the father’s partner has some health problems and has her own parenting obligations and the father needs to support her in that.  That means that the father says on the one hand: “I can’t spend any time with the child in Sydney because I need to spend time with my partner”.  On the other hand he has on occasions been able to spend time with the child in Sydney.  That makes life complicated for him and while asserting that she is an able and safe carer for the child, he needs to support her with her own parenting obligations. 

1. The other extraneous factor is that the mother wants to relocate to England.  That has been a little bit of a moving feast, without being silly about it.  At one stage there was a proposal that the mother’s partner was going to work out of the Middle East.  I gather that is no longer the plan.  The mother and her UK based partner are expecting a child.  That suggests that there is some substance to their relationship. 

2. Mr Sansom for the father submitted to the effect: “If the mother ultimately wants permission to move the child to the UK, she will be keen to make sure that the child has a workable relationship with the father which would survive such a move.” 

3. A less idealistic way of looking at the facts would be that the mother might be motivated to destroy the relationship between the father and the child so that she did not have to worry about justifying the move.  I should say that there is no hint of that in the mother’s case or in her conduct.  Similarly, that concern has not been raised in the father’s case, quite properly.  Despite the mother’s concerns, she has gone out of her way to facilitate the father’s time.  The most significant example of that was that despite objecting to the inconvenience caused by the father’s move she has agreed to do all of the driving for the child’s travel to the Central Coast.  That is a substantial commitment.  The mother has made it plain that she does not want to do the driving and that she does not like attending the handovers but she has taken up those responsibilities to ease the impact on the child.  It means that the child spends one and a half and maybe two hours in the car with her rather than with somebody else.  In my view, that was a very loving and proper concession made by the mother on the last occasion and not indicative of somebody who is doing everything they can to destroy a relationship that might stand in the way of her plans to travel across the globe. 

4. The other aspect of the father’s case that I did not mention is that the mother has behaved inconsistently about her concerns about overnight time.  She provided overnight time when the child was younger.  She offered overnight time on multiple nights in 2015, proposing that she leave the child with the father while she went off for three nights somewhere else.  She complains about the father’s behaviour before that time.  She relies on the evidence of the paternal grandmother – who has uniquely, unusually given evidence in her case and supports her over the father – complaining about behaviour of the father before 2015.  Despite those concerns, in 2015 she was apparently unconcerned about the father having three nights with the child when they were both overseas, because she wanted to travel to somewhere by herself.  There have been a few other occasions of overnight time.  The response on behalf of the mother is to the effect that the three nights were offered but were not taken up.  It is said that the level of the mother’s concerns has varied but she now has the concerns she has identified.  It is her case that she will not agree to overnight time now.  The commencement of overnight time is a substantial issue in the case and there are serious allegations made in the case that need to be explored. 

5. The commencement of overnight time now is not going to mean the difference between the child becoming an architect or a family lawyer or something more positive.  The important thing is that we have a loving relationship between the child and both her parents and she is safe.  We do not need to impose any additional stress on the mother who is already anxious about the child.  The parties are going into a period where there will be extra stresses on both households.  I will not order overnight time.

6. It appears that the love and capacity of parents seems to expand to meet the challenge of a new baby.  It is remarkable that in this case, both households have decided to expand at the same time.  The lovely aspect of that is that the child will have two new siblings.

7. As to the proposal for an optional or additional day, the father says that it is not feasible for him to take that up on a weekday.  He cannot commit to it; he could not do it; he cannot make the arrangements.  There is a proposal by the ICL and the mother has compromised but the father cannot take it up.  The parties have shown themselves able to make some accommodation for each other over time.  I will leave them with the usual rubric of – unless the parties otherwise agree.  Perhaps they will be able to put in place some ad hoc arrangements or different arrangements or arrangements on a weekend if that pleases them.  In that way they can demonstrate to each other and to the Court, for the purposes of the final proceedings, that they are able to cooperate.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 January 2018.

Associate: 

Date:  1 February 2018