Nagel and Clay

[2016] FamCA 623

FAMILY COURT OF AUSTRALIA

NAGEL & CLAY [2016] FamCA 623

FAMILY LAW – CHILDREN – Review of Senior Registrar’s decision – With whom the children should live – Where the father seeks orders to spend more time with the children including overnight time – Where mother made allegations of family violence against the father – Where such allegations were not found to create a risk to the children such as to prevent them from spending time with the father – Consideration of best interests of the children – Orders made that the children spend equal time with the mother and father.

APPLICANT: Mr Nagel

RESPONDENT: Ms Clay

FILE NUMBER: SYC 7861 of 2015

DATE DELIVERED: 4 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: M Duncan & Associates Solicitors & Attorneys

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Lawyers

Orders

IT IS ORDERED, PENDING FURTHER ORDER

1. That the children B born, … 2008, C born … 2011, and D born … 2013 (“the children”) live with the father as follows:

   (a)       Each Wednesday from 8.00am, until 6.00pm on Thursday.

   (b)       In the first week of each two week cycle, on Sunday from 8.00am until 6.00pm, commencing on the Sunday immediately following the making of this order.

   (c)       In the second week of each two week cycle, from 8.00am on Saturday until 6.00pm on Sunday.

2. That at all other times the children live with the mother.

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 Nagel & Clay 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: SYC 7861 of 2015

Mr Nagel

Applicant

And

Ms Clay

Respondent

REASONS FOR JUDGMENT

1. Mr Nagel (“the father”) and Ms Clay (“the mother”) are the parents of three children, B born in 2008, C born in 2011 and D born in 2013.

2. The parents, who are both medical professionals, separated under the same roof on 21 October 2015. They physically separated on 21 March 2016, when the father moved to a house he purchased in a nearby street.

3. On 15 March 2016, Senior Registrar Campbell (“the Senior Registrar”) made orders which provided for the children to live primarily in the care of their mother and spend time with their father during the day on Monday, Wednesday and Thursday each week, and on either Saturday or Sunday each weekend.

4. The father sought a review of the decision of the Senior Registrar and therefore the issue of the parenting arrangements for the children comes before me for determination as a hearing de novo.

5. After the matter was dealt with by the Senior Registrar, a report prepared by the Single Expert, Dr E, a child and family psychiatrist, has become available and that report was in evidence before me.

ORDERS SOUGHT

1. The father sought orders for the children to live with him for specified periods of time, and for these periods to increase during 2016.

2. From the date of the orders until the end of Term 4 in 2016, the father proposed that the children live with him from 8am Wednesday until 8am Saturday in the first week of each cycle; and in the second week, on Monday from 8am to 7pm, and from 8am Wednesday until 7pm the following Monday. In the second week the father proposed that Friday be a ‘split day’ in that the children would return to the mother at 8am Friday and remain with her until 3pm.

3. From the end of Term 4 of 2016, the father proposed that in the first week of each cycle the children would live with him from 8am Wednesday until 8am Friday and, in the second week of the cycle, from 8am Wednesday until 8am the following Monday.

4. Thus the father’s proposal would involve the children being separated from each of their parents for periods of three or four nights at a time.

5. The mother proposed that the children spend time with the father each Monday from after school, preschool or day care until 7pm, each Wednesday (subject to B and C being at school or day care), and each Thursday from 9am until 7pm (subject to B’s school day).

6. Significantly, the mother did not propose that the children spend any overnight time with the father.

7. The mother’s opposition to overnight time with the father appeared to have two bases. The first was her allegation of significant family violence such as to militate against the children spending overnight time with the father. In this regard it is noted that the mother neither sought to suspend the children’s time with the father entirely or to have it supervised. The second leg of the mother’s argument was that D, who was born in 2013 and will be three in late 2016, was too young to be separated from her overnight.

ALLEGATIONS OF FAMILY VIOLENCE

1. The mother’s allegations of family violence are contained at paragraphs 40 – 62 of her affidavit sworn on 25 July 2016.

2. The allegations are denied by the father and fall to be considered, without the benefit of cross-examination, on the basis of the evidence before the Court, including documents produced on subpoena by the police.

3. Whilst it is not possible to determine the disputes in relation to this issue, it is not a matter which can be ignored. It is necessary to consider what evidence is available in order to make an assessment about the risk to the children which emerges from the evidence.

4. The first instance to which the mother refers occurred on 11 June 2006.The mother alleges that there was an argument between herself and the father when the father threw his mobile phone against the wall and the phone smashed. She also alleges that during the argument, the father placed his hands around her throat and tightened his grip for a very brief moment and then let go, after which she began to scream. The police were called by the parents’ neighbours. The mother deposed that when the police attended she was told that the father would be charged. She told the police that she was lying, had been drinking and that she did not want the father charged. She refused to provide to the police any details including her name. Records produced by the police in relation to that incident state:

   On arriving Police could hear yelling and smashing coming from within [the home]. On entering Police observed [the mother] laying in bed. On the ground next to the bed was a smashed picture frame. Located in the hallway was a smashed mobile phone…. On speaking with [the mother] Police were able to obtained (sic) vague details of the incident. [The mother] states that she returned to [the home] after going out for the evening without [the father]. As a result of this [the father] and [the mother] have became (sic) involved in argument, during which [the father] attempted to strangle her. When [the mother] was pressed for further details she became uncooperative and changed her version, stating that she lied and this had nether (sic) happened. Police asked why she would do this to which she replied ‘I have had a bit to drink’. [The mother] then refused to provide Police with any details including her name. When asked who smashed the picture frame she stated it was herself but it was not aimed at [the father]… Whilst speaking with [the father] he also stated to Police that nothing had happened and that they had just had a verbal argument. [The father] declined to provide any further details… Police offered [the mother] the opportunity to provide a statement, however declined to do so… Whilst talking to [the mother] she did not appear to have any visible injuries.

5. The next incident to which the mother refers occurred in late June 2006 when the parties had an argument. The mother alleges that the father threw a jacket at her and the zipper of the jacket hit her lip and caused it to bleed.

6. The next alleged incident took place in December 2011. The parties had an altercation over an envelope of money that the father had brought home with him from work. The mother attempted to leave the home with the money. The mother deposed that they wrestled over the envelope and she was scratched on her arm, back, face and hand.

7. The next incident occurred on 1 April 2012, when she deposed that the father screamed at her and said “You’re a fucking whore, you’re a bitch and I’m going to kill you.” The mother telephoned the police. The mother says this incident took place in front of the eldest child, B. Records produced by the police indicate that the mother did not complain of any physical violence on that occasion. Police insisted on sighting B who appeared happy and well. He was noted to have been laughing and playing with his father. Police records note that the father denied either having threatened the mother or being verbally abusive.

8. On 22 October 2015, the mother complained to the police about an incident which occurred when B brought home a form from school relating to what musical instrument he wanted to play. The mother and father began to argue about what instrument B should play. The mother hid the form and the father tried to take it from her. The mother stood outside the house until the police arrived. When the police arrived the children were all asleep.

9. Records produced by the police show that the mother contacted the police again on 11 November 2015. The record notes, “She further stated that living in the same household as [the father] made her feel as though she was under duress however had no actual domestic incidents to report.”

10. The next incident to which the mother refers took place on 12 December 2015. Nothing in the mother’s account of the incident or in the account recorded by the police suggests that any violence was involved.

11. On 24 December 2015, there was an incident between the father and the mother, where they argued over a red dress belonging to D. The mother deposed that the father grabbed her and pushed her against the wall. The father told police that the mother barged passed him in the process of getting the red dress. In the record of the incident on 24 December 2015, the police noted:

    [The mother] now states that she believes [the father] is capable of carrying out threats of killing her as he had stated in the past. [The mother] stated that she feels that if [the father] is not successful in the Family Law Court regarding the children he may snap and become physically violent, even though there has been minimal physical violence during the entire relationship.

12. The police record of the incident on 24 December 2015 further notes that “Insufficient evidence exists to charge [the father] with assault as there were no witnesses, the victim had no injuries, and the pair both say that the other has person (sic) pushed them out of the way in order to grab the child’s dress.”

13. Notwithstanding the mother’s allegations in relation to family violence, the evidence discloses that in 2009, for a period of approximately three months when B was about one year old, the mother undertook her medical speciality training in F Town, living there and coming home every second weekend. B remained living in the care of the father during that period.

14. In May 2011, when B was three years old, the mother travelled to the US to visit her sister, leaving B in the care of his father for two weeks.

15. Throughout the period from 2010 onwards, and as recently as February 2016, the mother agreed that the father could take the two eldest children to visit his mother in country New South Wales.

16. Dr E, in his report, records the mother telling him that there had been “intermittent physical aspects” to their arguments.

17. Taken at their highest, and ignoring the father’s denials, the allegations of the mother in relation to family violence, do not evidence violence that would suggest that the father should not spend time with the children or that his time should be supervised.

18. The mother was unable to explain why the allegations of family violence which have been detailed should now operate to prevent the father from spending overnight time with the children but should not prevent the father from having unsupervised, day only, time with them.

THE REPORT OF DR E

1. The mother takes issue with a number of Dr E’s statements and conclusions. Counsel for the mother submitted that the Court could not, in interim proceedings, give weight to Dr E’s conclusions and recommendations. I accept that submission.

2. However, Dr E made observations of the parents with the children and interviewed the children without the parents. I propose for the purpose of these reasons to give weight to Dr E’s observations directly of the parents and the children rather than to his conclusions.

WHAT ARRANGEMENTS ARE IN THE BEST INTERESTS OF THE CHILDREN?

1. When B was interviewed by Dr E alone, Dr E reported, “When asked how he felt at mummy’s house now, he responded ‘sad because there’s no daddy.’ When asked how he felt at daddy’s house, B replied ‘It’s a little bit better, not as sad, but still a little bit sad.’”

2. Dr E reported in relation to B, “He felt sad, ‘a little bit of the time, going from house to house to house to house to house.’ This had been going on for a few weeks. He told me it would be better not to go from house to house so frequently.”

3. B told Dr E that he felt fine about sleeping in either his mother’s household or his father’s household and that he would like a lot to be able to have a sleep over at dad’s house too.

4. C, when asked by Dr E to state three wishes, responded “To live at daddy’s house, to go to my granny’s house half of the year and go to my mum’s house only one time.”

5. The mother reported to Dr E that C would say to her that she was mean because she didn’t let C sleep at the father’s house.

6. Whilst, given the ages of the children, particularly C, their statements to Dr E could not be given great weight as statements of their views, they demonstrate that the children would like to spend more time with their father and particularly would like to spend overnight time with him.

7. The father’s proposal would see the children living for half of the time with their mother. Implicit in that proposal is an acceptance that their relationship with her is loving, nurturing and appropriate.

8. The mother makes no similar concession about the father’s relationship with the children.

9. Dr E reports of his observation of the children with their father:

   On his arrival, the three children ran into their daddy’s arms. [D] immediately greeted him, ”I love you!”. [C] commented that he smelt of coffee. [The father] was engaged and interested in the children’s experience. All three children delighted in their contact and continued to talk about their experience in a chatty manner. They shared the drawings that they had done with their mother.
   The three children were observed to be calm, playful and interactive in their father’s care. There was less moaning and crying by comparison to when in their mother’s care. The children vied for their father’s attention. [The father] responded by making connections to the toy horses relevant to their experience in [G Town] with real horses. [The father] easily navigated between the needs of the three children, who remained relaxed and engaged in his care. Over an extended period he was observed to be responsive, interactive, organised but less emotive in his interactions with the children.

10. Dr E further observed:

    [The father] was observed to be inventive, imaginative and organised in his interactions with the children … when [C] became upset for a brief period, she ran to her father’s arms to be comforted and quickly moved on. When these interactions were observed by [the mother] over the Skype connection, she commented about the children having a lot of fun in their interactions with their father. The children remained contained and organised.

11. Dr E reported:

    The older children both expressed their desire to live with both parents and to be able to stay over with their dad because they missed him. [The mother] commented that she was not surprised by this but hadn’t had discussions about this with the children.

12. Dr E further commented:

    After an hour of play with their father, it was arranged for the children to be returned to their mother’s care. [C] held onto her father. She was tearful, refusing to let him go. It took [the mother] ten minutes to settle [C] as she was distressed and agitated, calling for her daddy.

13. In relation to the children’s relationship with their mother, Dr E observed:

    [B], [C] and [D] were brought to the assessment by their mother… the girls immediately engaged in playful interactive behaviour. [The mother] was softly spoken, encouraging, interested and responded with age appropriate language. [B] was only partially responsive to her communication. He sat silently in a disengaged fashion, in contrast to his more communicative and playful younger sisters.
    [B] and [C] completed a family portrait at my request. This was discussed by [C] and [the mother] in an interested manner. [The mother] continued to encourage the two girls to do a drawing. [B] was disengaged from this interaction. [D] was seen to be intransigent in response to her mother’s attempts to get the two girls to share. [C] became tearful when she was not able to have the eraser. [The mother] was accommodating to the children’s needs. [B] meanwhile diligently attended to his drawing task, utilising multiple colors. [C] became increasingly irritable and demanding.

14. After the children were observed by Dr E with their father, he saw them again with their mother. Dr E reported:

    When seen again with their mother, [C] and [D] were both crying. [The mother] did her best to address [C’s] concern that her picture was not quite right. She did her best to correct this by changing the picture to for her (sic). [C] responded that she was not happy with this. [C] laid under the table and said that she was tired and wanted her daddy.

15. Dr E reported that the mother acknowledged that the father had been an actively involved father and that the children delighted in his care. Dr E stated that the father’s involvement with the children was evident from his observations of them with him.

16. These children lived in a household with both of their parents until 21 March 2016.

17. Dr E’s observations of the children in the care of each of their parents suggest that they have a loving and secure relationship with their father.

18. The father deposed that the children have a loving and special relationship with their paternal grandmother. This does not appear to be in dispute. One of the consequences of the orders made by the Senior Registrar and of the orders proposed into the future by the mother is that the father would not be able to take the children to visit their paternal grandmother in country New South Wales.

19. The mother has applied to the Child Support Agency for a child support assessment based on her having the children seven nights weekly. The father deposed that he continues, notwithstanding the fact that he does not live in the household with the children, to pay the mortgage on the former matrimonial home which is occupied by the mother and the children, to pay the rates on that property, to pay B’s school fees of $30,000 per annum and C’s preschool fees of $12,000 per annum, to pay the mother’s grocery bills and her mobile phone bill. He deposes that he has, in addition, paid other expenses.

20. A significant factor to be taken into account, when considering changes in the children’s circumstances, is the fact that D will be separated from her mother for overnight periods, something that has not previously occurred. Counsel for the mother submitted that there is no evidence before the Court about how D will cope with such a separation. This is of course true, as it is in every case where a change to children’s arrangements is proposed.

1. It would not appear however, that the mother had similar concerns in relation to B spending time in the sole care of his father when B was only a year old.

2. The mother thought it appropriate for the father to care for B while she worked in F Town for three months and saw him every second weekend. Similarly, when B was only a little older than D is now, the mother thought it was appropriate that she should travel to New York for two weeks to visit her sister and leave B in the care of the father.

3. In the event that D spends overnight time with her father, she will have the advantage of doing so in the company of both of her older siblings. The mother in her affidavit sworn 25 July 2016 deposed, “[D], [C] and [B] have very close relationships and are most settled when they are kept together.”

4. No doubt that closeness will assist D in settling overnight in her father’s home with her siblings, particularly in circumstances where they want to spend overnight time with the father.

5. If orders were made which allowed the children to spend overnight time with the father, then they would be in a position to spend weekend time with their paternal grandmother.

6. The only objective evidence of the capacity of the parents to care for these children is contained in the observations of the children with their parents by Dr E. Nothing in Dr E’s observations of the children with their father suggests that he is not capable of caring for them.

7. The orders which are proposed by the father would see the children spending approximately equal time in each household, and significantly, equal nights in each household, by December 2016.

8. The father submits that the orders he proposes are in accordance with Dr E’s recommendations.

9. Setting aside my reservations about the weight to be given to Dr E’s recommendations in circumstances where the report has not been tested, it is important to note that Dr E in his report did not recommend an immediate move or even a hasty move to shared care. Dr E recommended:

   In the context of the mother’s allegations of domestic violence and AVO application there had been a suspension of communication between the parents. This necessarily inhibited their capacity to provide appropriate shared care. Her application was dismissed as anticipated by the father. It is however anticipated that once such issues are resolved, with the acceptance of the parental separation and the change in the family circumstances that an effective model of shared care could be introduced.

10. I accept the submissions of counsel for the mother that the preconditions which Dr E proposes have not been met at this stage and shared care, commencing in the very near future, does not accord with Dr E’s recommendation.

11. Dr E also recommended that unsupervised overnight time with the father should be initiated immediately and that the transition to a shared care arrangement should be gradual. The father’s proposal is not for a gradual transition.

12. However, both B and C indicated to Dr E that they want to spend overnight time with their father. Nothing in Dr E’s observations of the children with their father suggested that overnight time should not commence immediately.

13. At the present time, B is at school from Monday to Friday, C attends preschool on Monday, Tuesday and Wednesday, and D will attend preschool on Monday and Tuesday. The mother works three days per week, usually Monday, Wednesday and Thursday. The father finishes work at about 1pm each Wednesday and does not work on Thursdays.

14. Both of the parents engage assistants to care for the children at times when they are working, either by paid nannies or family members. Insofar as the mother complains of the father using carers to supplement his availability, that is a situation with which the children are very familiar and a circumstance that children of working parents learn to accommodate, as have these children.

15. Both of the parents agree that the children are upset by changeovers. The current arrangements involved the children in eight changeovers each week.

16. The most appropriate arrangement for these children at the present time is that they should be with their father on Wednesday and Thursday in every week, and in addition they should spend time with him on weekends, for the whole of one weekend in each fortnight and for one day of the second weekend.

17. This will reduce the number of changeovers to which the children are exposed, give them the opportunity to spend overnight with time with their father, allow the father the opportunity to take the children to visit their paternal grandmother, and will not unduly involve lengthy absences from either parent.

18. Such an arrangement, however, sees the children spending no more than one night in any period in the father’s household. The children will have either one night or two, non-consecutive, nights in the father’s household in each week, but will spend either three or four days in each week with him.  

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 August 2016.

Associate: 

Date:  4/8/2016