MORRISON & FONTANA

[2015] FCCA 1104

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRISON & FONTANA [2015] FCCA 1104

Catchwords:
FAMILY LAW – Parenting – 9 year old child – poor communication between the parties – dispute over whether spend time with arrangements should move to equal time.

Legislation:

Family Law Act 1975 (Cth), ss.60C, 60B, 60, 60CA, 60CC, 61DA, 65DAA

Applicant: MR MORRISON

Respondent: MS FONTANA

File Number: MLC 10308 of 2009

Judgment of: Judge Harland

Hearing date: 27 March 2015

Date of Last Submission: 27 March 2015

Delivered at: Melbourne

Delivered on: 1 May 2015

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent: Ms Fisken

Solicitors for the Respondent: John Finlayson Lawyers

ORDERS BY CONSENT

1. The parties have equal shared parental responsibility for the child, X born (omitted) 2005 (“the child”).

2. The child live with the mother.

3. The child spends time with the father as follows:

   (a)For one half of all school term holiday periods, at dates and times as agreed, and failing agreement:

   (i)For the first half in 2015 and each alternate year thereafter from the conclusion of school on the last day of term until 12.00pm on the middle Saturday; and

   (ii)For the second half in 2016 and each alternate year thereafter from 12.00pm on the middle Saturday until 12.00pm on the day prior to school commencing.

   (b)At Christmas:

   (i)In 2015 and each alternate year thereafter, from 5.00pm on Christmas Eve until 3.00pm on Christmas Day; and

   (ii)In 2016 and each alternate year thereafter, from 3.00pm on Christmas Day until 11.00am on Boxing  Day.

   (c)

   On the father’s birthday, from the conclusion of school

   
   

   (or 3.00pm if a non-school day) on the day prior until the commencement of school on the day of the birthday (or 12.00pm if a non-school day).

   (d)At Easter:

   (i)In 2015 and each alternate year thereafter, from 3.30pm on Good Friday until 11.00am on Easter Sunday; and

   (ii)In 2016 and each alternate year thereafter, from 11.00am on Easter Sunday until 11.00am on Easter Monday.

   (e)On Father’s Day weekend, from 5.00pm on the day prior until the commencement of school on the Monday.

   (f)At such further or other times as agreed between the parties.

4. If the child is otherwise in the care of the father, his time be suspended and the child be in the care of the mother at the following times:

   (a)At Christmas:

   (i)In 2016 and each alternate year thereafter, from 5.00pm on Christmas Eve until 3.00pm on Christmas Day; and

   (ii)In 2015 and each alternate year thereafter, from 3.00pm on Christmas Day until 11.00am on Boxing Day.

   (b)For the child’s birthday, at times as agreed, and failing agreement:

   (i)For 3 hours on a school day; and

   (ii)For 5 hours on a non-school day.

   (c)On the mother’s birthday, step-father, Mr C’s birthday, and Y’s birthday (and any other child born to the mother) from the conclusion of school (or 3.30pm if a non-school day) on the day prior until the commencement of school on the day of the birthday (or 12.00pm if a non-school day).

   (d)At Easter:

   (i)In 2016 and each alternate year thereafter, from 3.30pm on Good Friday until 11.00am on Easter Sunday; and

   (ii)In 2015 and each alternate year thereafter, from 11.00am on Easter Sunday until 11.00am on Easter Monday;

   (e)On Mother’s Day weekend, from 5.00pm on the day prior until the commencement of school on the Monday.

5. Each parent facilitate any request by the child to telephone the other parent.

IT IS ORDERED

1. That the child spend time with the father during school terms as follows:

   (a)on alternate weekends from after school Friday to before school Tuesday;

   (b)in every other week from after school Monday until before school on Tuesday.

2. That neither party shall enrolled the child in any self defence, martial arts or other sporting and extracurricular activity unless both parties agree in writing.

3. That except in the case of a medical emergency parties shall take the child to attend (omitted) medical centre.

IT IS NOTED that publication of this judgment under the pseudonym Morrison & Fontana is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10308 of 2009

MR MORRISON

Applicant

And

MS FONTANA

Respondent

REASONS FOR JUDGMENT

1. X (X) will turn 10 on (omitted) 2015.  Her parents separated when she was 3 years old.

2. X’s parents reached agreement on several orders. They have agreed that they should have equal shared parental responsibility. They have also agreed on school holiday arrangements and times on the special days.

3. The issues I am asked to determine are as follows:

   a)whether or not the time arrangements during school terms should remain the same or should move to an equal time arrangement;

   b)whether or not an injunction should be made restraining the parties from allowing X to participate in any self defence, martial arts, or combat sport unless both parties consent.

4. Both parents have repartnered. The mother has a child with her partner. Y was born on (omitted) 2013.

5. The father’s partner has older children, A aged 12 and B aged 10, who live with them for half the time.

6. The parties live about 20 minute drive from each other. Both work for (employer omitted), the mother in (occupation omitted) and the father as a (occupation omitted).

The parents communication

1. Both parents acknowledge that the communication is very poor.

2. The mother was very upset that the father’s partner had a conversation with X about menstruation after X saw a packet of tampons and asked the father’s partner Ms M about them. The father sent an email to the mother to let her know that the conversation happened. The mother feels that that is a very important and sensitive conversation that should have occurred between her and X and that Ms M should have deferred answering the question to enable the mother to have a conversation with X. Whilst it would have been preferable that the conversation took place between X and the mother there is no suggestion that there is any malice on Ms M’s part and she was probably taken by surprise and answered the question.

Parenting styles

1. Both parents acknowledge that they have very different parenting styles. This can make it difficult for a child to transition between households.

Spend time arrangements since separation

1. X was 3 when the parties separated in 2008.

2. In 2008 X spent four nights a fortnight in the father’s care in two blocks of two nights. In November 2008 the father asked the mother to reduce the time and from that time until December 2010 he saw X for two nights a fortnight.

3. From January 2011 until July 2014 X spent four nights a fortnight at her father’s home in two blocks of two nights.

4. Since July 2014 X has been spending five nights a fortnight with her father.

5. The mother says that it took X time to adjust to the current arrangement but that it has now been in place for nine months and that for the most part works well. She says that the current arrangement should continue.

Parenting plan

1. The parents entered into a parenting plan after attending a Family Relationship Centre on 25 September 2013. The mother says the father never signed the parenting plan.  That being the case, the document does not comply with the requirements for a parenting plan[1]. Parenting plans are not enforceable[2].

   [1] See section 63C(1) of the Family Law Act 1975 (Cth)

   [2] See section 63B of the Family Law Act 1975 (Cth)

Examples of conflict between the parties

1. It is clear that the parents have very different views about a range of topics and have different parenting styles. It is not surprising that there are issues where they have been unable to reach agreement. It is to both their credit that for many years after the separation they were able to avoid coming to court.

2. The father complains that the mother is controlling and that she took away X's Friday phone calls with him as a form of punishment. The mother says this was not done as a form of punishment and that the time of the calls was disruptive and not beneficial for X. In the email correspondence the father places a lot of emphasis on the importance of that phone call. The mother’s position was that as the father was now spending substantial and significant time with the child, the call was not necessary and disruptive. It appears to me that as with the father’s emphasis on equal time and that for him, it is about a sense of fairness as opposed to a focus on X. The mother says in her affidavit filed on 13 March 2015 that she could have communicated with the father more constructively about this issue.

3. The mother says that X does not want fixed calls to her father but rather wants to be able to call her parents when she wants to.

4. X is of an age where she can initiate phone calls to either parent if she wants to. She has many after school activities and is spending substantial and significant time in both households. Having an order with a fixed time for phone calls is only likely to lead to further conflict between the parties.

5. There are numerous examples of the parents having different points of view about various issues including whether or not X should have a second pair of reading glasses and who should take responsibility for remembering to bring her reading glasses home with her. There is no evidence that X has frequently forgotten her glasses and that this has caused problems for her.

6. Another area of dispute between the parties is whether or not X should participate in self-defence or martial arts classes. The father is keen for X to do this kind of activity and says that X has told him that she wants to. The mother is fundamentally opposed to X engaging in self-defence or martial arts classes. The mother says that X told her she said she wanted to do the class to please her father.

7. The mother’s opposition to X engaging in these classes are for cultural and religious reasons and she does not want X to be at risk of harm. The father is well aware of the mother’s views and has been since at least 2011.

8. The level of correspondence around this issue and the parents differing views about X’s wishes about it is an indication of the level of conflict between the parties.

9. The father complains that the mother is neglectful of X’s medical needs. It was put to the father that if he was seriously concerned that X was being neglected in the mother’s care he would have sought orders for X to live primarily with him.   Again when the evidence is examined, the father’s complaint is unreasonable and his own actions leave much to be desired.

10. Despite making what amounts to a serious complaint about the mother’s parenting capacity, the father was unable to remember details of the appointment including the results of the lung function test to which the mother says was normal. The father agreed that X has never been hospitalised. The father took X to a medical clinic closer to his home and obtained a different opinion to that of X’s usual GP. Despite this, the mother still arranged for a referral and took X to a specialist. The father’s complaints are completely unjustified and reflect poorly on him. It seems that the father is willing to call the mother controlling whenever she does something he is unhappy about where really he could be seen as seeking to undermine the mother’s parenting .  

11. X saw Dr A, an asthma specialist, last year. The mother obtained the referral and organised the appointment with the father’s agreement and both attended the appointment.  The diagnosis was that X gets cold-induced asthma, a very low level of asthma, which can be treated with Ventolin which is readily available over the counter at any chemist.

12. I do not accept the father’s descriptions of the mother as controlling. He refers to the mother as being this way when they cannot reach agreement on an issue. This is very clear when reading his complaints about the mother in his case outline. His stance is unreasonable. It comes across as passive-aggressive.

13. The complaints he raises about the mother would not be solved by an equal time arrangement.

14. It is in X’s best interests if the parties reduce the areas for potential conflict. They should take X to the same medical centre and the same dentist unless there is a medical emergency.  They should only enrol X in extra-curricular activities that they both agree on. Given the amount of time X spends in both households, it is important that both parents support X in her extra-curricular activities, as it is likely that they will both take her to these activities and watch her at special events.

15. The father says that if there was an equal time arrangement it is likely that the parties would both have an equitable say in X’s activities. He also says that X would see this as fair and equal. This comment about X suggests that X is far too aware of her parents’ inability to agree on things.

Child psychologist

1. The father complains that the mother breached the parenting plan by taking X to a child psychologist without his consent. The mother annexes emails to her affidavit of 31 July 2014. On 18 February 2014 she emailed the father proposing that X see Dr B and asks his consent. The father replied stating “I don’t have a preference of psychologist other than one with a great reputation. Dr B seems to be respected.”

2. A few weeks later the mother texted the father saying that she had found a psychologist better suited to X, Ms S. The father was upset that he was not consulted before an appointment was made with her. He indicated that at that point he would not consent to anyone other than Dr B. The father did not nominate a psychologist he preferred.

3. The mother says after she met Dr B she thought that a different psychologist who had a more child focused approach would be suitable for X. She also wanted X to see someone outside of school hours. She made further enquiries and made an appointment for X to see Ms S. After the father objected the mother says she made further enquiries and nominated Ms J. The mother says Ms J contacted her and said that she had a received phone call from the father and was not prepared to provide counselling for X. The mother says she was concerned about X’s presentation and that she needed assistance immediately. X attended four sessions with Ms S.

4. Interestingly the mother says that she does not feel she breached the parenting agreement by not consulting with the father about the specific psychologist X saw. She agreed that whilst there was consultation about X going to a psychologist she says as they could not agree on a psychologist. She says in her affidavit of 13 March 2015 that she did not see taking X to see a psychologist as a major medical issue and that it was not specifically covered by section 9 of the agreement. This seems somewhat convenient but nevertheless it is clear that the father was consulted about X seeing a psychologist.

5. The father says that the subpoenaed notes from Ms S makes it clear that X is having issues arising from the mother’s household.  This is highly selective and it is telling that the father does not draw attention to the problems X raises in his household.

6. With respect to the mother’s household X described an incident where she tipped out glasses of water she was putting on the table because she felt frustrated and angry that Y was getting attention and X was not.  Y was very young at the time and had health issues having been born with a hole in his heart.

7. X told Ms S that sometimes it is hard for her at her father’s house, that A and B fight and sometimes she feels unsafe because of this. X also said she had told her father she needs to know where home is and this is why she lives with her mother.  X mentioned difficulties with A and B during another session and said that she wanted to live full-time with her mother. X said she couldn’t live full-time with her mother because her father would not feel loved. She went on to indicate that it’s hard to talk to her father because he does not listen and does not understand her because she is a girl.

8. X is living in two blended households. It is perfectly normal for X to sometimes complain about the other children in those households such as feeling that Y was getting more attention and that B and A fight too much and are noisy.

9. The father was very selective in what he refers to in these notes. It is reflective of him looking for problems in the mother’s household to support his case for equal time. His focus on negative issues in the mother’s household whilst glossing over issues raised in his own household is concerning. It seems from Ms S’s notes that X was feeling some sort of pressure and that she had some difficulties with moving across two households. X certainly expressed a preference for being in the mother’s household. Reading the whole of the notes were tendered as Exhibit A, it is concerning that the father would read them as supporting his position.  It may be that the father lacks insight and cannot separate his own needs, from X’s needs.

10. It is also concerning that the father would complain about the mother being controlling and packing X’s bag for school camp when there was an email exchange which was marked as Exhibit B, where it was clear that X asked her mother if she could pack the bag. The mother asked the father if he was agreeable to this and he responded “sure…”  The mother gave evidence of X asking her to pack her bag for camp as X was staying with her father until the morning of the camp and she was worried that she might forget something. It seems disingenuous of the father to raise this as a complaint particularly when he was given the opportunity to object and he does not. This is consistent with the father being passive aggressive in his dealings with the mother.

11. Exhibit B is some emails from X’s current psychologist Ms S.  It is clear that X is having some issues with anger. It may well be that the conflict between the parents and the differences between the two households are contributing to this.

12. It is also clear when the father was being cross-examined about Ms S’s notes that he was unwilling to accept the interpretation of Ms S’s notes which did not suit his own case. When it was suggested to him that what X said to Ms S was consistent with what she said to the Family Consultant, Mr M, the father said that his understanding is that X would like to spend equal time with each parent. I do not accept that X wants to spend equal time with each parent. This is inconsistent with what she has said to two professionals and I suspect that if she has indicated that to her father it is because she is aware that it is the father’s strong preference that she wants to please him. The father conceded that he had discussed his wishes for this with X before the court proceedings.

13. The father did not accept the proposition that it would be best to shield X from these issues.  He said that if X raises the issue of wanting to spend more time with him she is mature enough for him to talk to her about it in an age appropriate manner. He also rejected the proposition that he should tell X not to worry and that her parents will sort it out.  It was clear from his answers when being cross-examined that the father has questioned X about what she has said to her psychologist. Even though the father says he asked vague questions so that X could feel she could talk to him, this would have put pressure on X. It is important that X has a safe place to talk to an adult without feeling like her parents are going to know what she is talking about unless she wants them to.  It is also concerning that the father has assumed that the problem lies in the mother’s home. I find that the father has questioned X about this. This puts X in the middle and adds to the pressure. It is clear that X sometimes finds that her father does not listen to her. The father seems set on advancing his agenda of having equal time. In doing this he has missed some cues from his daughter. X is not yet 10 years old and needs to be shielded from her parents’ dispute.  She needs to be free to be a child and not feel like she has to protect her parents’ feelings.

1. The father had to concede that there were a number of factors that could be contributing to X’s feelings of anger and stress, including the uncertainty about her living arrangements but the only things the father gave any credence to was a problem in the mother’s household or X’s school.  This shows a concerning lack of insight particularly as the father has read and sought to rely on Ms S’s notes and the transcript of Mr M’s evidence which clearly puts to X having some issues with talking to the father and feeling listened to, normal issues which arise in blended households with respect to siblings and getting on with other children in the household, X being highly aware of the dispute, X making her wishes clear and X being aware that her parents do not get on. 

Family Consultant

1. Mr M prepared a child dispute conference memorandum on 26 August 2014. It records that the disputes centred on whether the current five nights a fortnight arrangement should continue or should be increased to an equal time arrangement.  He recommended a child inclusive conference.

2. Mr M prepared a Child Inclusive Memorandum and provided oral evidence to the Court. The transcript of his evidence which was given on 22 September 2014 is annexed to the mother’s affidavit filed on 13 February 2015. The father also annexed the transcript to his affidavit of 27 February 2015.

3. Neither party required him for cross-examination at the final hearing.

4. Mr M gave oral evidence to the Court the day he saw X. Mr M recorded much of his evidence in his memorandum. He said that X is worried that her parents will fight at changeover. She says they only say a few words at changeovers.

5. The Child Inclusive Memorandum records that X was aware that what she said would be relayed to her parents and the judge. She was aware that her parents have a poor relationship. She said she wished they stayed together and wished they would reconcile. X would have little if any memory of her parents living together. It is very common for children of X’s age to express this wish whether or not their parents ever lived together.  Her wish is an indication of the love and positive relationship she has with both her parents. X also spoke positively of both parents’ partners and Y. She also said that A and B could be annoying but could also be fun to play with.

6. It was evident that both parents have spoken with her about their proposed arrangements for her and that she felt torn. X said that she liked the current arrangement. She sometimes finds it confusing about where she is supposed to be. Mr M said that whilst X preferred the current arrangement remain in place it is likely that she would accept an equal time arrangement.

7. Mr M indicated that the contra indicator to an equal time arrangement was the communication difficulties between the parents. He also indicated that a further family assessment would not advance matters.

8. Significantly he says:

   “It is noted however that communication between the parents is poor and X is aware of this. Good communication and problem solving skills are essential for an equal time parenting arrangement to work successfully, and avoiding the possibility of future litigation will be beneficial for X and in her best interests.

   It is proposed that the current arrangements appear to be working well, and other than the father’s desire for equal time, there seems little justification to change the current arrangements.”

Legal Principles and their application to the facts in this case

1. In cases about children under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: section 60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

2. There are objects set out in section 60B that help to clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objects: section 60B(2).

3. The concept of best interests is explained in section 60CC. The primary considerations are set out in section 60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

4. There are additional considerations set out in section 60CC(3). These include: the views of the child, the nature of the child’s relationship with the parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

5. At the core of Part VII of the Act is a presumption of equal shared parental responsibility. Thus section 61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (section 61DA(2)), or rebutted (section 61DA(4)).

6. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: section 65DAA. Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: section 65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in section 65DAA(3).

7. Another important concept used in section 65DAA is that of reasonable practicality. That is explained in section 65DAA(5). The parents live within a reasonable distance of each other. They both have employment with some degree of flexibility. Neither has raised the issue about the cost of X spending time with either of them as being an impediment to the child spending more time with the father[3].

   [3] The mother does complain about the father refusing to contribute to extra costs such as school camps and extra-curricular but these are issues of child support which are not before the Court.

8. It is well settled that shared care arrangements work well when the parents have similar styles, they communicate well and there is little or no conflict. These elements are missing here.

9. The parties agree that they should have equal shared parental responsibility for X. I agree that this is in X’s best interests.  The parties would benefit from attending counselling to improve their communication skills. It is clear that the parties generally communicate with each other about important issues but do not have the tools to resolve their differences about certain issues.

10. They will need to continue to communicate with each other for years to come and issues such as martial arts classes will continue to arise. X is well aware of the differences between the parties and their inability to agree on aspects of her welfare. X would benefit enormously if her parents can address their conflict.

11. There is no doubt that X enjoys a close, loving and meaningful relationship with both her parents. This will continue regardless of whether X remains in the current arrangement or spends equal time with both parents. There are no issues of family violence or abuse.

12. X’s views are relevant. It is apparent from her interview with Mr M that she prefers the current arrangement. I place some weight on this.

13. It is clear that X enjoys a close and loving relationship with her parents, her step-parents and her brother Y. She has a good relationship with A and B.

14. In order to reduce the potential for conflict in the future which will clearly have a negative impact on X and contrary to her best interests I am going to order that the parties take X to the (omitted) medical clinic, which is the clinic the mother takes X to and has consistently, unless there is a medical emergency. I am also going to make an order restraining the parties from enrolling the X in extracurricular activities unless it is with the consent of both parties in writing. The father’s complaints with respect to the glasses, the toothache and the packing of the school bag to support his position are examples of the father creating issues of conflict to support his position. In fact they are all contrary indicators of an equal shared time arrangement being X’s best interests.

15. It is clear that the mother gave careful consideration to the father’s requests with respect to marital arts and spoke to the teacher. She did not simply dismiss the father’s proposal. It is also clear that whilst the father is quick to make complaints about the mother’s choices, he does not offer alternatives. The choice of psychologist is a prime example of this.

16. The major issue of concern for X is her parents’ poor relationship. That is very clear. This is something the parents need to work on for X’s benefit. The father also needs to protect X from adult issues. His view that it is important to hear X’s voice and act on it is not reflective of understanding X’s stage of development. It is important to listen to children but it is also important to allow them to be children and not feel like they have the burden of decision-making and to feel a conflict of loyalties. It is clear that X loves both her parents and enjoys living in both households but she needs to be relieved of the pressures she feels because of the conflict between the parents and the father’s desire for an equal time arrangement.

CONCLUSION

1. In assessing the evidence, whilst I think the father genuinely believes in an equal shared care arrangement, I am satisfied that his desire for an equal time arrangement is really about his own needs and his own sense of fairness.

2. The current arrangement gives the father ample opportunity to be actively involved in various aspects of X’s life including schooling and home routines. The mother says X is now well-settled into that routine. I am comfortably satisfied on the evidence that changing these arrangements is not in X’s best interests. For these reasons I make the orders appearing at the beginning of this judgment.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  1 May 2015