McPherson and McPherson and Anor

[2019] FamCA 288

FAMILY COURT OF AUSTRALIA

MCPHERSON & MCPHERSON AND ANOR [2019] FamCA 288

FAMILY LAW – CHILDREN – Where the mother seeks an order for overseas travel – Where the father seeks an order for overseas travel if the mother’s application is successful – Where the father seeks a marginal increase in his time with the child – Where the child has a valuable connection with both parents – Where there was no clear benefit to the child in marginally increasing the time with the father – Where the mother is the primary caregiver – Where the importance of the child’s relationship with a primary attachment-figure was more critical than allowing the child to travel with the father – Mother’s application granted – Father’s application refused.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms McPherson

RESPONDENT: Mr McPherson

SECOND RESPONDENT: Ms Goode

INDEPENDENT CHILDREN’S LAWYER: Mr Blumberg

FILE NUMBER: SYC 4540 of 2016

DATE DELIVERED: 28 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 28 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Horton Rhodes Legal

COUNSEL FOR THE RESPONDENT: Mr Sansom SC

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan

COUNSEL FOR THE SECOND RESPONDENT: Mr Levy SC

SOLICITOR FOR THE SECOND RESPONDENT: Broun Abrahams Burreket

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blumberg Family Lawyers

Orders

1. Unless the parents otherwise agree in writing orders are made in terms of paragraph 1 of Exhibit 5, as amended as set out hereunder:

   1.The child shall spend time with the father as follows:

   a.in each alternative week from Friday at 2.00 pm to Saturday at 4.00 pm for a period of four weeks.

   b.after four weeks of the date of these orders for a period of twelve weeks:

   i.in each alternative week from Friday at 2.00 pm to Saturday at 4.00 pm.

   ii.in the other week from 2.00 pm on Wednesday until 2.00 pm on Thursday until the child starts school.

   c.after sixteen weeks of the date of these orders:

   i.in each alternative week from Friday at 2.00 pm to Sunday at 4.00 pm.

   ii.in the other week from 2.00 pm until 6.00 pm on Wednesday until the child starts school.

2. Unless the parents otherwise agree in writing orders are made in terms of Exhibit 6, as set out hereunder:

   2.For the purposes of handovers in Order 1 above, the father to collect the child from day care on day care days or school on school days, or the mother’s residence otherwise and on overnight time the mother shall collect the child from the father at an agreed point halfway between the mother’s and father’s residences at the end of time.

   NB:  The reference to school pick-ups does not mean the father is restrained from seeking such further time as may be available when the child starts school.

3. The mother is permitted to remove the child from the Commonwealth of Australia and that the orders made today in relation to the living arrangements for the child with the father are suspended for a period of up to 23 days for the purposes of a holiday for the mother and child in Country N in June or July 2019.

4. As to disputes between the parties in relation to subpoenas, those disputes are stood over to be restored to the list after judgment is delivered in the summary dismissal application.

5. Judgment is reserved in relation to summary dismissal, security for costs and interim spousal maintenance and the parties are excused on delivery of judgment.

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, born in 2013. 

2. The parents have agreed about an increase in her time with the father.  Those agreements are reflected in a minute prepared by the Independent Children’s Lawyer (“ICL”), which is exhibit 5, and a revision of the mechanism for handover, which is exhibit 6.  The dispute between the parents relates to whether there is a progression in the father’s time after 16 weeks from the date of these orders (in addition to an increase of alternate weekends to two nights) to overnight on the intervening Wednesdays.  The ICL has prepared a minute that provides that until the commencement of school, that the time be 2.00 pm, Wednesday to 2.00 pm, Thursday, and the wife proposes that on the commencement of school that it be 2.00 pm, Wednesday, to 6.00 pm, Wednesday. 

3. There is also an issue about overseas travel.  The mother wants permission to take the child overseas in June / July for 23 days.  The father opposes that travel, but if it is permitted, he says that it should only be for 14 days and he would then seek permission to also take the child overseas for 14 days’ travel. 

4. The range of dispute is narrow.  It is difficult to pretend that there is a clear way forward by reference to matters of principle or child-learning in relation to those areas of dispute.  There is a single expert in the proceedings.  She prepared a report at the end of last year for the substantive proceedings, which include a dispute arising from the mother’s proposal to relocate with the child to Country N.   

5. The family consultant recommends that, until a final hearing, X’s time with the father increase on the alternate weekends, to include Friday and Saturday nights.  I understand that the parents have already acted on that proposition.  There is nothing about overseas holidays in the report. 

6. In terms of the matters that the court is to take into account, there is the benefit of a meaningful relationship between each of the parents and the child.  It is apparent from the orders sought by the parties, the orders already in place and the observations of the family consultant, that there are valuable relationships between the child and each of the parents. 

7. As to risks of physical and psychological harm, there are allegations of violence in the nature of controlling behaviour by the father.  It is not possible in a hearing such as this to make findings of fact about all disputed issues.  Those allegations are made.  There is conflict between the parents, but that is not necessarily covered by that provision. 

8. The child is too young to have a view that would be given weight in the proceedings.  The family consultant observed the indications of a close relationship between the child and the mother and a good relationship between the father and the child. 

9. There are disputes between the parents about the extent to which the father has taken opportunities to participate in X’s life and to spend time with her.  Again I am not going to be able to make findings about the extent to which parents have fulfilled or failed to fulfil obligations to maintain a child.  The child lives with the mother.  I understand there is an issue about arrears of spousal maintenance, but I do not know that there is any issue about child support received from the father. 

10. As to the likely effect of changes in circumstances – most of the changes that are proposed by the parties are marginal.  The parties’ counsel have made the best of what they have.  On behalf of the mother it is said that this child is perhaps not up with her cohort in terms of development, that there have been concerns about some issues for her.  I apprehend that X is starting school late and there are issues about language and so on that have concerned the parents.  The argument on behalf of the mother and as to overseas travel, perhaps also relied on by the father is that there may need to be more care about this child than for a child of a similar chronological age who does not have those concerns. 

11. There is the obvious fact that the circumstances have left the mother as the primary care-giver of the child.  That has been the parties’ arrangement.  The child mainly lives with her.  More time with the father will mean less time with the mother.  It is perhaps that factor that gave rise to the family consultant being very measured about her recommendations in respect of movements between the households.  The family consultant was told that X can be clingy on return from time with the father.  One could speculate that the child missed her mother and was grateful to be back with her. On could also speculate that she might have missed the father, who she has just been with. 

12. This is not a perfect science, and we do not have a precise recommendation from Ms E.  In fact, Ms E’s report – without being disrespectful to her – apart from the observations she made, largely comprises a faithful recording of the allegations and assertions that are made by each of the parties about their own observations, impression and reaction to various events.  That will not assist with making findings about matters that are dealt with in s 60CC.  So the short answer is that I, simply, do not know what the effect would be of these relatively minor changes.  In a dispute between no time, 14 days and 23 days, they are marginal considerations.  There is an issue about the travel in that I have already made an order permitting the mother to travel with X.  There would need to be some explanation as to why I permitted travel at an earlier time and refused a similar application for X who is now one year older.

13. In terms of the practical difficulty and expense - no issues are raised about that in terms of the difference in the living-arrangement orders.  There is a compromise in favour of the mother in the handover arrangements, where the mother lives in Suburb B area, and I understand the father is in the L Region. 

14. In term of the capacity of the parents, Ms E is critical about the child being exposed to conflict between the parents.  I suppose by inference that is a criticism intended at the mother because the child lives mainly with the mother.  Otherwise there is nothing in the report of relevance to the interim dispute.  There is nothing in the report which suggests that the child should live other than mainly with the mother.  That suggests that the expert has some confidence in the mother’s parenting capacity.  She also recommends a minimum of alternate weekends and half the school holidays with the father as the ultimate recommendation.  Again suggesting some confidence in the father. 

15. The court is to consider the capacity of others, and I think the father’s new partner has had involvement, I understand, with the Department of Family and Community Services in relation to her own children.  There is no evidence that there has been a repetition or continuation of those concerns. Perhaps that was one event.  It is not of assistance in the decision that I am to make.  There is nothing about the maturity, sex, lifestyle, background of the child or either of the parents.  The child is not an Aboriginal child. 

16. There is nothing relevant to the present dispute about the attitudes of the parents to the responsibilities of parenthood.

17. The report and the parties’ affidavits suggest that there was, initially, some adverse reaction from the child to the father, but that seems to have settled down, and as I say, the family consultant observed a good relationship between the father and the child. There is no contention to the contrary on behalf of the mother.  Regarding family violence:  that is an issue I cannot make findings about.  I do not think there is any family violence order.  These are interim proceedings, and it is not likely, that I can make an order that prevents further orders. 

18. As to the overseas travel, the mother has a relationship with Mr D.  They have a child, Y, who I think was born in the middle of last year.  In the context of a family made up of the mother, Y, the subject child and Mr D, there are connections in Country N that could be of value, you would think, to X.  There is an overarching question in the case about the mother ultimately being able to relocate. If that is not possible, Mr D will apply to live here, but there are some concerns about the practicability of that.  We can confidently say that Mr D is going to be in X’s life, given the fact of Y. 

19. X is young.  She lives mainly with the mother.  If the mother goes overseas, then one would expect the child would go with her.  There is no indication that the mother would relocate without the subject child.  The mother and Mr D both say that they have been prosecuting their relationship despite the distance. That has occurred mainly by him coming to Australia. Courts, normally, guard the right of adults to travel and would not, absent any other consideration, lightly interfere with that right.  We do not have any help from Ms E about the trips.  As I say, I have already ordered one.  That trip did not eventuate but for reasons that I do not need to address. 

20. It is not really a matter of whether X at five years of age is going to immerse herself in the culture available in the summer.  Indeed there is a question of the benefit to her of the travel.  One would expect that there is value in an appropriate interaction with extended family, and that is really what is being offered here.  There is no suggestion that the holiday will damage the relationship of the child and the father.

21. The father would say and I would find, that there is a loving relationship between him and the child.  That is not likely to be threatened by X not seeing her father for 23 days.  And as I say, it is beyond the scope of these proceedings to say what marginal difference there would be from a 23 day absence compared to a 14 absence.  I am going to permit the travel sought by the mother for 23 days 

22. The father’s reciprocal argument is a bit odd.  I suppose there might be some logic in “If the court thinks that it is okay for the child to travel, then I want to travel with the child too.”  There is a difference between the two proposals, however, as this child has not spent any significant time away from her mother.  Therefore, different issues are involved.  X is said to be struggling in some aspects of her development and it may be that it is not desirable that she be separated from her mother at this stage.  In any event, that separation is not required.  I am not going to order the father’s travel. 

23. As to the difference between two or three nights a fortnight after 16 weeks from today’s orders – the family consultant, albeit at the end of last year, did not suggest such a progression.  These are marginal things.  No damage will be done if we do not take the extra step.  The potential is that the child will not be ready for that additional time.  I will make the orders proposed on behalf of the mother. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 28 March 2019.

Associate: 

Date:  13 May 2019