McWilliams and Keates
[2017] FCCA 674
•6 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCWILLIAMS & KEATES | [2017] FCCA 674 |
| Catchwords: FAMILY LAW – Parenting – consent orders made in April 2016 – child with anxiety and obsessive compulsive disorder – father applying for order different to consent orders – extant family violence order – no basis shown for deviating from consent orders made less than 12 months ago. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC |
Cases cited:
Re F: Litigants in Person Guidelines (2001) 161 FLR 189
| Applicant: | MR MCWILLIAMS |
| Respondent: | MS KEATES |
| File Number: | MLC 930 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 20 March 2017 |
| Date of Last Submission: | 20 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2017 |
REPRESENTATION
| Applicant in person | ||
| Counsel for the Respondent: | Mr A. Crozier-Durham | |
| Solicitors for the Respondent: | Rigoli Lawyers |
ORDERS
All previous parenting orders are discharged.
The parties have equal shared parental responsibility for the child X born on (omitted) 2009 (X).
X live with the mother.
X spend time and communicate with the father as follows -
(a)during school term each alternate weekend from the conclusion of school on Friday (or 1.00 p.m. if X is not at school) until 7.00p.m. Sunday;
(b)during school term from the conclusion of school Tuesday or 1.00p.m. if not a school day until 7.00 p.m. Wednesday each week;
(c)unless otherwise agreed for the first half of all gazetted school term holidays from the conclusion of school until 7.00 p.m. the middle Saturday;
(d)unless otherwise agreed on a week about basis commencing 3.00p.m. Boxing Day during the long summer holidays;
(e)from 3.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day in 2017 and for those times in each alternate year thereafter;
(f)from 3.00 p.m. Christmas Day until 3.00 p.m. Boxing Day in 2018 and for those times in each alternate year thereafter;
(g)from 7.00 p.m. the night before Father’s Day until 7.00 p.m. Father’s Day if X is not with the Father pursuant to these orders provided that time be suspended from 7.00 p.m. the night before Mother’s Day to 7.00 p.m. Mother’s Day and X be returned to the Mother if he is scheduled to be with the Father on Mother’s Day;
(h)from 3.00 p.m. Easter Saturday until 3.00 p.m. Easter Sunday in 2017 and for those times in each alternate year thereafter;
(i)from 3.00 p.m. Good Friday until 3.00 p.m. Easter Saturday in 2018 and for those times in each alternate year thereafter;
(j)for three hours on X’s birthday if a school day and from 2.00p.m. to 7.00 p.m. if a non-school day provided that X spend those times with the Mother if X’s birthday falls scheduled for the Father;
(k)by telephone at reasonable times with each parent facilitating X calling the other parent if he expresses a wish to do so; and
(l)such further and other times as agreed between the parents from time to time in writing.
Changeover take place at school if on a school day and otherwise at the (omitted) store on (omitted).
Each of the parties keep the other informed of any illness or injury suffered by X whilst in their care which requires hospitalisation, such notice to be provided as soon as practicable and not more than 24 hours following X’s admission to hospital and such notice to include details of X’s injury or illness and any medication prescribed for X.
Each party provide the other with their contact address, telephone numbers and email addresses and inform the other party of any changes in such address or telephone as soon as practicable upon such change occurring.
The Mother authorise the school attended by X to provide the Father with notices, newsletters, reports, photographs and other information normally provided to parents in relation to children and authorise the said schools to communicate with the other party about X’s progress at school.
Both parties be permitted to attend school activities and extra-curricular activities normally attended by parents whether or not the children are residing with or spending time with that parent at that time.
Neither party use illicit or non-prescribed drugs nor other illicit substances during any time that X is in that party’s care.
The Father and the Mother each be restrained by injunction:
(a)from denigrating or speaking ill of the other parent or his/her extended family to or in the presence or hearing of X;
(b)discussing these proceedings with or in the presence or hearing of X;
or permitting any other person to do so, each party denying the necessity for this order insofar as it applies to that party.
All extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McWilliams & Keates is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 930 of 2016
| MR MCWILLIAMS |
Applicant
And
| MS KEATES |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerned X (“the child”), a child born to the applicant father Mr McWilliams (“the father”) and the respondent mother Ms Keates (“the mother”) on (omitted) 2009. Currently a year two student at a local primary school, the child has experienced and continues to experience anxiety and obsessive compulsive disorder, as was common ground.
The father and mother agreed that orders for equal shared parental responsibility were appropriate when they entered into detailed consent orders relating to parenting in April 2016.[1] However, at the trial of this proceeding the father advocated for a differently configured arrangement in respect of his time with the child.
[1] Order of his Honour Judge Wilson made 12 April 2016.
Synopsis
For the reasons that follow, in my judgment the orders agreed between the parties on 12 April 2016 should remain in full force and effect with the consequence that I dismiss the father’s amended initiating application[2] in this proceeding.
[2] Amended initiating application filed on 15 March 2017.
Factual background
Pursuant to consent orders made on 12 April 2016, the mother and father have had equal shared parental responsibility for the child who lives with the mother and spends time with the father in accordance with an agreed regime. Mr Crozier-Durham, counsel for the mother, submitted that the arrangements agreed in April 2016 were complex but they have worked well for three years.
In March 2017, the father filed an amended initiating application in this proceeding. He prepared it himself. The amended initiating application was tolerably clear and well-articulated. In accordance with my usual practice and in keeping with the instruction given by the Full Court of the Family Court of Australia in Re F: Litigants in Person Guidelines,[3] I explained to the father in considerable detail how each phase of the proceeding would unfold, his role in each such phase, a broad indication of permissible and impermissible levels of participation in each phase and other things. Specifically, after having explained each phase to the father I asked him whether he understood everything I had explained to which he said that he had.
[3] (2001) 161 FLR 189.
The regime proposed by the father in his amended initiating application was said to have been based on the recommendations of the author of the family report prepared in this case on 13 February 2017. The family consultant, whose name is unimportant for present purposes, held a bachelor degree in social work (obtained in 1983) and was a doctor of philosophy (conferred in 2008). She made certain recommendations about the time the child was to spend with each parent. Those recommendations were premised upon each parent attending counselling derived from a program that provided instruction on effective communications in parenting.
Each party gave evidence each had completed a course in parenting. Each relied on a certificate concerning the due completion of the relevant course.[4] Neither parent descended into the detail about aspects of the course, especially the particulars of the instructions given during such course so as to better enhance communication skills when parenting.
[4] Exhibit 3 - letter dated 6 March 2017 from Ms D to ‘To Whom It May Concern’ in relation to Ms Keates’ attendance at a Parenting After Separation Program and Exhibit C – Parenting After Separation Series certificate awarded to Mr McWilliams.
The family consultant made observations about the way the child interacted with both his parents and about the child’s current development. Let me say more about the last point first.
The child currently lives with his mother. In the mother’s home are two children from two separate previous relationships the mother had with other men, none of whom currently live with the mother. The child is currently progressing well at school according to the family consultant, something about which both parents agree.
The father currently lives with his partner and has done so for a little over four years. His partner has a nine-year-old daughter from a previous relationship who lives with them on a full-time basis. According to information derived from interviews conducted for the purpose of the family report, the family consultant stated that the father had told the consultant that the child enjoyed spending time with father, with the father’s partner and with the father’s partner’s daughter. In fairness, the family consultant faithfully recorded all important items of information given to her by the father during the interviews. The family consultant did not cross-check the veracity of the information given to her by the father nor did she cross-examine the person who gave her the information so as to assess its authenticity.
The family consultant assessed the mother as engaging and insightful who had been the child’s primary care-giver since birth. The mother told the family consultant (as was recorded in the family report) that the child was receiving behavioural therapy from a psychologist. According to the family consultant, the mother was critical of the father in relation to communication issues and the father was likewise critical of the mother on the same issue.
According to the family consultant, the child reacts badly to conflict, especially verbal altercations between his parents when each swears at the other. Unsurprisingly, the child told the family consultant that he was saddened by the fact that his parents could not still be together. According to the family consultant, each parent enjoys a close bond with the child and the child similarly enjoys a close bond with each parent.
As was common cause, the child has experienced and continues to experience anxiety and obsessive compulsive disorder. The family consultant assessed the father as lacking insight into the child’s emotional needs. The family consultant expressed the view that the regime recorded in the consent orders made on 12 April 2016 should continue.
The family consultant addressed an issue that assumed some significance in the viva voce evidence of the mother and the father, namely, the very different parenting regimes adopted when the child spent time with each parent. When with the father, the child was permitted to watch television whereas he was not permitted to do that when with his mother. When with the mother, the child’s focus was on reading.
Evidence of lesser significance
In this case information emerged that seemed to me to be peripheral to the threshold point of the best interests of the child. On several matters the evidence was conflicting. Let me touch upon some of it now.
The father admitted to having had past drug problems. He said he had not taken drugs since 2012.
The father asserted that at one point in time both he and the mother jointly and concurrently took the drug speed, he said in the garage to their home at which they then lived. The mother denied any such drug-taking.
The father asserted that on one recent occasion he physically observed a collection of empty beer cans in the mother’s car. The mother denied the presence of any such empty beer cans, stating she did not drink beer nor did her then-partner.
The father asserted he saw the mother’s then-partner smoking while in a car when interacting with the child. The mother said she questioned her then-partner about the truth or otherwise of that assertion and was given information that satisfied her that the child was not at risk of harm through passive smoking.
The mother asserted that at one stage the father threatened to kill himself. She argued that it was open to me to conclude that the father was mentally unbalanced. In cross-examination, the father admitted that soon after his relationship with the mother came to an end, he made attempts to reconcile with the mother and as part of his technique he threatened to take his own life. The father admitted that such a move was a stunt more than a reflection of his actual intention to take his own life, borne (so he said) of youthful naiveté.
It seemed to me that those matters raised issues more apparent than real. If the two parents had in fact jointly participated in simultaneous drug-taking as the father asserted but which the mother denied, any such event (even if true) was at least five years in the past. I accept that the father has been drug-free since 2012 and I accept that the mother has no tolerance for drugs.
So far as the presence of empty beer cans in the mother’s car was concerned, I was not satisfied that the version of events given by the father had been proved on the balance of probabilities.
As for the incident involving the mother’s former paramour allegedly smoking when interacting with the child, again, I was not satisfied on the balance of probabilities that the event occurred as alleged. But even if it had, the mother’s then-partner is no longer her partner and so the risk associated with any recurrence of that event is extremely small.
An examination of the father’s proposal
As Mr Crozier-Durham perfectly correctly pointed out during his opening and final addresses, the real issue in this case is whether I should accede to the father’s request in relation to his time with the child having regard to the child’s emotional needs, taking into account the child’s diagnosis of anxiety and obsessive compulsive disorder. The mother has stated that the child is performing well under the regime agreed by the parties in April 2016. On her behalf, Mr Crozier-Durham highlighted the observations of the family consultant to the effect that a child experiencing behavioural issues, as was the child in this case, required consistency, stability and predictability, something that was not achieved in the regime proposed by the father as set out in the details of the amended initiating application.
So far as the matters of “consistency, stability and predictability”[5] were concerned, it seemed to me that the day-to-day activities undertaken by the child while in his father’s care were less structured and were more fluid than they were when the child was in his mother’s care. That is not to say that the father was any less concerned about the child nor is it to say that the father had any lesser desire than had the mother for the child’s best interests. However, a number of factors indicated to me that stability, predictability and consistency were better achieved with there being no significant alteration to the arrangement effected by the consent orders of April 2016. Those factors included –
a)the father’s working hours in which he worked night shift and relied on his partner to get the child to school;
b)the father’s very relaxed attitude to the child’s preparation for sleep and the child’s sleeping patterns;
c)the similar ages and developmental stages of the other children who live with the mother; and
d)the fact that the child has lived with his mother for a substantial period of time in a static and regular manner.
[5] Paragraph 52 of the family report dated 13 February 2017 prepared by Dr M.
It must not be overlooked that two intervention orders have been made against the father on the application of the mother. The first was ordered on 31 December 2015. The second was ordered on 10 May 2016. Naturally, the mere fact of the making of those orders does not enable me to gainsay the factual basis leading to their making. However, the 2016 intervention order was ordered to expire at midnight on 10 May 2017. And whereas the first intervention order named the mother, the child and the mother’s daughter from a previous relationship as the persons affected, the second intervention order named only the mother as the person affected.
In other words, communication issues were one matter of concern to the family consultant yet family violence matters were also present, at least as between the father and the mother. Taken separately or in the aggregate, both matters weighed heavily upon me in the making of the orders in this case.
The various proposals for time
The essence of the father’s proposal involved the child living alternate weeks between parents with Wednesday night being spent with the parent with whom the child was not living during that particular week.
The family consultant recommended that the child spend time with the father in accordance with the interim consent orders made in April 2016 with a view to an extra overnight, contingent upon the parents engaging in a parenting program. At trial, Mr Crozier-Durham produced a formal order that differed little to those consent orders, especially at certain times (6.00 p.m. rather than 7.00 p.m., for the most part) and the inclusion of an additional paragraph (numbered 5) with its consequential renumbering of other subsequent paragraphs. It is fair to say that the substance of the 12 April 2016 consent orders was preserved.
In my view the orders that presently apply in relation to the father’s time with the child should remain in operation, unaltered.
Best interests considerations
In a proceeding such as this, the paramount consideration is the child’s best interests. That is the express stipulation of s.60CA of the Family Law Act1975 (Cth) (“the Act”).
In determining what is in the best interests of the child, s.60CC(3) of the Act sets out a list of 14 criteria that a court is required to consider. I have taken each of those 14 separate criteria into account in arriving at my decision in this case. I have also taken into account the primary considerations set out in s.60CC(2)(a) and (b) of the Act.
Let me now descend to the detail of the separate stipulations of each sub-section of s.60CC(3) of the Act.
Turning to sub-section (a), the family consultant recorded the views expressed by the child, especially insofar as the child was concerned about the ongoing hostility between his parents and his wish for that hostility to cease. The family consultant has factored in the wishes of the child in proposing the recommendations which she made in this case.
As to sub-section (b), the child currently enjoys a very favourable relationship with each parent, a matter that impressed me. The child maintains a relationship with his maternal grandparents and his maternal uncle as well as the mother’s former partner, whose child presently lives with the mother.
As to sub-section (c), the father appears to have done his best to spend time with the child and to communicate with the child, subject to the confines of his difficult working arrangements. The father has also participated in decision-making about long-term issues in relation to the child. As Mr Crozier-Durham pointed out in written submissions,[6] the mother is supportive of the child’s relationship with his father so long as the father does not expose the child to family violence or to illegal drugs. The father told me his days of drug-taking ended in 2012, which evidence I have accepted. As for family violence, the evidence revealed historical information of significant verbal altercations between the parents and the existence of an extant intervention order expiring in May of this year.
[6] Outline of case document filed on behalf of Ms Keates on 21 March 2017.
As to sub-section (ca) the evidence revealed that each parent was far from affluent and that each has fulfilled his and her obligation to maintain the child within the limits of his or her disposable income and discretionary spending. Each parent is to be commended about the way he and she has applied his and her limited resources towards the child. I say that in relation to events subsequent to 2012, that is to say, after the father put an end to the villainy associated with his drug-taking.
As to sub-section (d), I am required to take into account the likely effect of any changes in the child’s circumstances. To my mind, this is the most important factor of the case. The family consultant pointed out the fact that the child suffers from anxiety and obsessive compulsive disorder. She cautioned against an alteration to the existing consistency, stability and predictability of the child’s day-to-day regime. The introduction of the father’s proposal in respect of time to be spent with the child at this point of the child’s development represents a significant and unacceptable alteration to the consistency, stability and predictability of life that the child currently enjoys. To my mind there is no warrant for it beyond the father’s desire to have the benefit of more time with his son. To my mind that inverts the purpose of this sub-section. This sub-section is aimed at matters that will have a likely effect on the child. It does not address the enhancement of the benefit of time being spent with a child to be enjoyed by a parent.
As to sub-section (e), the evidence revealed nothing in the way of practical difficulties and expenses associated with spending time and communicating with either parent. The parents live within 10 km of one another. Each has a car and each drives.
As to sub-section (f), I am required to consider each parent’s capacity to provide for the needs of the child in terms of his emotional and intellectual needs. To some extent that has been canvassed above. It is true that each parent is (highly commendably) devoted to the child and wishes to advance his emotional and intellectual development. It seems to me that the mother’s regime, strict as it is, more beneficially enhances the development of the child’s emotional needs than does the father’s. The mother is focused on the child reading books. The father seemed relaxed about television and bedtime hours whereas the mother was strict about the regularity, predictability and consistency of the child abiding by a non-negotiable bedtime routine. I have also taken into account the fact that the father currently enjoys the benefit of a developing relationship with his current partner, a situation to be contrasted with the fact that the mother has children to several men, none of whom currently live with her.
As to sub-section (g), the child is currently seven years of age.
As to sub-section (h), the child is not aboriginal or a Torres Strait Islander child.
As to sub-section (i), the family consultant reported that the father lacked a degree of insight about the child’s circumstances. The family consultant did not make a comparable observation in relation to the mother. To the contrary, the family consultant observed that the mother had a developed insight into the child’s needs.
As to sub-section (j), the passages above reveal the evidence in relation to family violence. The intervention order currently stands against the father. That is a matter of significance in this case.
As to sub-section (k), it addresses family violence issues, details of which I have recorded above.
As to sub-section (l), I am required to consider the making of an order that would be least likely to lead to further litigation between the parents concerning the child. The content of this sub-section has troubled me. The fact that the father has brought this application in less than a year after agreeing to orders in relation to the parenting of the child, at a time when the child is no more than seven years of age tells of several things. First, it indicated that the father did not understand the full impact of the consent orders to which he agreed in April 2016. Alternatively, the fact that the father brought the application most recently before me indicated that he had no qualms about bringing litigation before this court with a view to untangling a parenting regime to which he freely agreed less than a year ago. To some extent, that gave me some insight into his propensity to bring further litigation before the court in relation to the child. I entertain very considerable doubts about the father’s appreciation of the desirability to put an end to litigation in the courts involving his son in the absence of very good reason, none of which was exhibited in the current proceeding before me. If anything, the litigation before me demonstrated the father’s desire to seize upon a glimmer of opportunity revealed by the family consultant’s report and to explore, dare I say exploit, that opportunity by bringing an ill-considered application for an alteration to orders to which he freely agreed less than a year ago.
While it is not necessary for me to pronounce upon the point, I formed the view that the father, in bringing this application before me, did not have an eye to the best interests of the child but rather he had an eye to his own interests of attempting to obtain orders that conferred upon him more time with the child than the time to which he earlier agreed.
It seems to me that the time has come for both parents to focus much more intently on the best interests of the child. He has his own difficulties. He is young. The child has many years to travel before he attains his majority. Any number of eventualities and complications might befall him between the ages of seven and 18. The parents must be astute to those, focusing upon his best interests rather than their own.
Orders
I dismiss the father’s amended application in this proceeding.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 6 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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