Medved & Scrivens

Case [2022] FedCFamC1F 1059

Federal Circuit and Family Court of Australia

(DIVISION 1)

Medved & Scrivens [2022] FedCFamC1F 1059

File number(s): MLC 11306 of 2020
Judgment of: STRUM J
Date of judgment: 23 December 2022
Catchwords: FAMILY LAW – PARENTING – Where it is agreed that the parents will have equal shared parental responsibility – Equal shared parenting time versus substantial and significant time – different personalities and parenting styles – No real risk to children identified.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZT
Cases cited:

Goode v Goode (2006) FLC 93-286; [2006] FamCA 1346

Hall & Hall (1979) FLC 90-713; [1979] FamCA 73

Kennedy v Kennedy [2010] FamCAFC 195

M v M (1988) 166 CLR 69; [1988] HCA 68

Mallory & Mallory [2019] FamCAFC 221

Mazorski v Albright [2007] FamCA 520

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Scott & Scott [2019] FamCA 306

Wordsworth & Wordsworth [2021] FedCFamC1A 28
Division: Division 1 First Instance
Number of paragraphs: 130
Date of hearing: 4-5 July 2022 and 5 September 2022
Place: Melbourne
Counsel for the Applicant: Ms Wheeler
Solicitor for the Applicant: Kennedy Partners
Counsel for the Respondent: Mr Arnold
Solicitor for the Respondent: Robert A Mchugh

ORDERS

MLC 11306 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MEDVED

Applicant
AND:

MR SCRIVENS

Respondent

order made by:

STRUM J

DATE OF ORDER:

23 DECEMBER 2022

THE COURT ORDERS THAT:

1.All extant parenting orders be discharged.

2.The parties have equal shared parental responsibility for the children X born 2015 and Y born 2017 (“children”).

Living arrangements

3.The children live with the mother, save as otherwise herein provided.

4.The children live with the father as follows:

(a)During school term:

(i)From the commencement of Term 1 in 2023, on an alternating weekly basis:

A.In week one - from the conclusion of school (or 3:30pm if a non-school day) on Friday until the commencement of school on the following Tuesday (or 9am if a non-school day); and

B.In week two - from the conclusion of school (or 3:30pm if a non-school day) on Thursday until the commencement of school (or 9am if a non-school day) on Friday.

(ii)From the commencement of Term 2 in 2023, on an alternating weekly basis:

A.In week one - from the conclusion of school (or 3:30pm if a non-school day) on Thursday until the commencement of school on the following Tuesday (or 9am if a non-school day);

B.In week two - from the conclusion of school (or 3:30pm if a non-school day) on Thursday until the commencement of school (or 9am if a non-school day) on Friday.

(iii)From the commencement of Term 3 in 2023 - for a continuous period of seven nights, from the conclusion of school (or 3:30pm if a non-school day) on Friday until the conclusion of school (or 3:30pm if a non-school day) on the following Friday.

(b)During school term holidays:

(i)In 2023 and alternating years thereafter - for the…

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AGLC
Medved & Scrivens [2022] FedCFamC1F 1059
Case
[2022] FedCFamC1F 1059
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Medved & Scrivens involves the parents of two young children who are seeking orders regarding the children's living arrangements and shared parental responsibilities following their separation. The dispute between the parents primarily concerns the children's living arrangements and whether an equal shared care arrangement would be in their best interests.

The legal issues before the court included determining whether the parents should have equal shared parental responsibility for the children, whether the allegations of family violence by the father were substantiated, and whether an equal shared care arrangement would be in the children's best interests. Additionally, the court had to consider the parents' proposals for overseas travel by the children and the custody of their passports.

The court found that the parents should have equal shared parental responsibility for the children, rejecting the mother's allegations of family violence by the father. The court also concluded that an equal shared care arrangement would be in the children's best interests, and that such an arrangement is reasonably practicable. The court ordered that the children should commence living equally with the parents in a week-about arrangement by the start of term three in 2023. The court also determined that the parents should share custody of the children's passports and that overseas travel by the children should be limited to the period from Christmas Eve to Boxing Day once every four years.

This case highlights the importance of considering the best interests of the children in determining their living arrangements and shared parental responsibilities following separation. The court found that an equal shared care arrangement would be in the children's best interests, despite the mother's concerns about the father's conduct. The court also emphasised the need for the parents to cooperate and work together to ensure the children's welfare.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, I will order that the parents have equal shared parental responsibility for the children and that, inter alia, their time with the father increase such that, by commencement of term three in 2023, the children commence to live equally with the parents in a week-about arrangement.BACKGROUND The mother was born in 1977 and is 45 years of age. The father was born in 1973 and is 49 years of age. The parties commenced cohabitation in late 2010 and married in late 2012. The father was previously married and has an adult son from his first marriage, aged 26 years. The mother asserts that they separated under the same roof on 31 August 2020 and that the children and she vacated the former matrimonial home in Suburb B, Victoria, on 19 October 2020. The father asserts that separated on 12 October 2020 and the mother and children vacated the home on that day. Nothing whatsoever turns on the precise date of separation; on either view, the parties and the children ceased living together in the former matrimonial home in mid-October 2020. On the first return of these proceedings, on 4 November 2020, X was aged five years and Y was aged three (nearly four) years. Interim orders were made by a Senior Judicial Registrar, not by consent, which provided for the parties to have equal shared parental responsibility for the children and, in summary, for them to live with the wife and to spend time with the father four nights per fortnight. Orders were also made for both parties to be psychiatrically assessed and for a family report to be prepared, which was prepared by Dr C, forensic psychologist. Psychiatric assessments were prepared by Dr D, in respect of the father on 13 January 2021 and the mother on 16 January 2021. In respect of the father, Dr D opined that he did not then suffer from a diagnosable psychiatric disorder and that whilst he described “a few obsessional personality traits such as a concentration on order and punctiliousness, and a degree of rigidity and a need for control”, they were “not pervasive or severe enough to warrant a diagnosis of a [sic] Obsessive-Compulsive Personality Disorder”. Dr D concluded:Although his need for control does no doubt provide assistance in his professional life and pursuits, it will impact his capacity to deal with situations in the care of the children where resonance and flexibility are required. This is likely to surface more fully when the children are going through adolescence, rather than their younger years. … In respect of the mother, Dr D opined that, although she did not then meet the criteria for an adjustment disorder according to the DSM-5, in that there had not been a significant impairment in functioning, he diagnosed her as having an unspecified stressor related disorder. He reported that, in respect of her anxiety, it was “likely to be impacting upon her capacity to be available for the children, especially if they are distressed themselves. This may be a contributory factor in the children’s reactions of being clingy and insecure in regard to separations from [Ms Medved]”. Although the mother reported to Dr D that she was suffering from a reaction to the parties’ separation, he opined that it was “likely to be impacting upon her capacity to be available for the children, especially if they are distressed themselves. This may be a contributory factor in the children’s reactions of being clingy and insecure in regard to separations from [Ms Medved]”. However, he further opined that:There is a possibility that her level of anxiety had existed prior to the separation and is a long standing trait, rather than a temporary response. Although it is difficult to properly assess longitudinal personality traits on a cross sectional basis, and even more difficult to separate out these from the effects of her Stressor Related Disorder, there certainly is a possibility that her anxiety in response to the children’s behaviour is long-standing. Her anxiety was manifest in the assessment, and she did require continual intervention on my part to keep her to point. If this was a sign of behaviour during the marriage, then it is possible that she may have experienced the father as controlling and intervening.

Evidence

Evidence Before The Court

Whether or not an equal shared care arrangement, even a week about configuration as the father seeks, is an appropriate arrangement, being in the children’s best interests, is for me to decide.EVIDENCE AND CREDIT Each of the parties was represented by counsel at trial. The evidence of each of them, as well as that of Dr C, was tested in cross-examination. They were the only witnesses. Each of the parties presented as caring, concerned and competent parents. They both appeared to have limited trust in the other, however it was difficult to ascertain clear and cogent reasons therefor, other than the breakdown of their relationship and the resultant acrimony between them. That is not to say, however, that neither of them cannot be the subject of some modest criticism; they can. In the case of the wife, she struck me as having an unnecessarily and unjustifiably parsimonious approach to the time to be spent by the children with the father. For example, she told Dr C in her interview with him in February 2021, some three months after the parenting orders made by a Senior Judicial Registrar, that “the current 10/4 fortnightly arrangement had not served the children well” but that “I don’t think the 10/4 arrangement itself is an issue, I think it’s too fast”; that neither child “want to go to their dad”; that “I don’t know exactly why, I can only say it’s a developmental attachment issue”; that “there [sic] not coping”; that “I can only put it down to the fact that it was too fast”; and that “I would like for it to be pulled back, and gradually moved back to the 4/10” arrangement. On 12 March 2021, Dr C released his report in which he made recommendations, inter alia, for the remainder of 2021 and for 2022, until Y commenced school in 2023. In the final paragraph of his report, he said that the “children have two loving and involved parents, and the aspirational goal should be that they live with their mother and father evenly”. He also said:Perhaps the best way to proceed at this point would be to retain the current arrangement for the remainder of 2021, before extending the children’s time at the beginning of next year. This will allow the children to continue to adjust to living between two households, by that point, [Y] will be nearly 5 years of age, and developmentally more able to accommodate increased time with his father. As of the beginning of 2022, it would be my recommendation that the children live with their father three nights one week (e.g., Friday to Monday), and two nights the next (e.g., Wednesday/Thursday). Notwithstanding Dr C’s recommendation and the effluxion of time, the mother refused to countenance any increase in the children’s time with the father in 2022, such that at trial they continued only to spend four nights per fortnight with him. In her trial affidavit, the mother alleges that, over time, culminating in separation, the father “became increasingly controlling, dismissive and undermining” towards her and that, over the years, she was left “feeling isolated, insecure and invalidated” (at [10]). Further, she alleges he made unilateral decisions and “demeaned, humiliated and undermined” her (at [11]). This is denied by the father. However, even if true, in circumstances where the mother concedes that there should be (and seeks orders for) equal shared parental responsibility and proposes that the children should spend substantial time with the father (namely, ultimately five nights per fortnight), it is difficult to understand how an additional two nights will have any appreciable deleterious impact upon the children or, put another way, not be in their best interests as required by s 60CA of the Family Law Act 1975 (Cth), taking into account the matters set out in ss 60(2) and (3).

Decision

Reasons for decision

In relation to overseas travel by the children and their passports for such purposes, the proposals of each of the parties are, in my view, unnecessarily complicated. The 2022/2023 school summer holidays are already underway. By the next such holidays, the children will be spending one half thereof, in a block, with each of the parents, during which time each parent will be able to take the children overseas provided that, as the mother reasonably suggests, in the case of each of them, it only include the period from Christmas Eve to Boxing Day once in every four year period. As for custody of the children’s passports, there is no reason why a Solomonic approach should not be adopted, as the father proposes, and that each parent hold one of the children’s passports.CONCLUSION Orders will be made in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

In this case, notwithstanding the mother’s allegations of family violence by the father, she concedes that an order should be made for them to have equal shared parental responsibility for the children. Accordingly, I find that the exception set out in s 61DA(2) is not engaged. Given the mother’s concession, as in Scott & Scott, the resolution of contested allegations of family violence, in the circumstances, would not affect the nature of the order to be made for parental responsibility. Further, in relation to those allegations, I am not satisfied, to the requisite standard, that they have been made out by the mother. I accept Dr D’s unchallenged diagnosis of the mother as having an unspecified stressor-related disorder such that, by reason of her anxiety, she may have experienced the father as controlling and intervening. Whilst I accept that may have been her subjective experience, I do not accept that the father’s conduct was objectively so, such as to amount to family violence. That term is defined in s 4AB (1) of the Act as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”. Examples of behaviour that may constitute family violence are set out in s 4AB(2), but are not limited thereto. I accept Dr C’s evidence that, whilst the mother characterised the father as controlling and domineering, she did not express any concerns about her safety in interacting with him, and that when he pressed about her allegations of the father “gaslighting” her, she talked mostly about how she felt unheard, rather than a deliberate campaign of psychological manipulation on the part of the father. Taking into account the expert evidence of Dr C, as well as the evidence of both of the parents, I agree that the mother’s claims of coercive control impress as tenuous. I agree that not only were they modest, but I also agree with and accept his opinion that the examples she used to justify her allegations are entirely explicable in a benign way and that the use of the term “gaslighting” was inappropriate and inflammatory (especially in circumstances where the father is a practising psychologist), even if her own account of interactions with the father were to be accepted. I repeat, that is not to minimise her subjective perception, however, that is not the test. In the circumstances of this case, I unreservedly accept Dr C’s opinion, which accords with mine, that neither the children nor the mother are at any significant ongoing risk of coercive or controlling conduct by the father or, put another way, that there is any unacceptable risk to them of such conduct.Consideration of children spending equal time with each parent In circumstances where an order will be made for the parents (as they both seek) to have equal shared parental responsibility, s 65DAA requires me to:(a)consider whether the children spending equal time with each of the parents would be in the best interests of the children;(b)consider whether the children spending equal time with each of the parents is reasonably practicable; and(c)if it is, consider making an order to provide for the children to spend equal time with each of the parents.