Nathan and Weston

[2019] FamCA 240

FAMILY COURT OF AUSTRALIA

NATHAN & WESTON [2019] FamCA 240

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where the children already spend time with the father – Where both parties agree that the time spent with the father should be extended – Where there is not agreement about the extent of the potential extension of the father’s time – Orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3)

APPLICANT: Ms Nathan

RESPONDENT: Mr Weston

FILE NUMBER: ADC 3285 of 2018

DATE DELIVERED: 17 April 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler Barristers & Solicitors

Orders

1. That paragraphs 3 and 5 of orders made 27 September 2018 be discharged.

2. That X born in 2010 and Y born in 2012 (collectively “the children”) spend time with the father as follows:-

   (a)On each alternate weekend from the conclusion of school (or 3.00 pm if a non-school day) on Friday to 4.00 pm on Sunday commencing 26 April 2019;

   (b)       Each Tuesday from 4.00 pm to 7.00 pm during the school term;

   (c)From 10.00 am Tuesday to 10.00 am Thursday in each week of all school holidays.

   (d)Such further and other times as the parties may agree.

3. That paragraphs 2(a) and (b) will be suspended during all periods of school holidays.

4. That all handovers of the children between the parties shall take place at the mother’s home or such other location as the parties may agree.

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 Nathan & Weston 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 ADELAIDE

FILE NUMBER: ADC 3285 of 2018

Ms Nathan

Applicant

And

Mr Weston

Respondent

REASONS FOR JUDGMENT

Introduction

1. Following contested interim proceedings orders were made on 27 September 2018 that until further order X born in 2010 and Y born in 2012 (“the children”) live with Ms Nathan (“the mother”) and spend time with Mr Weston (“the father”) as follows:-

   (a)Each Tuesday from 4.00 pm until 7.00 pm during school term and from 10.00 am until 4.00 pm during school holidays;

   (b)Each alternate Saturday from 10.00 am until 4.00 pm commencing 6 October 2018;

   (c)Each alternate Sunday from 10.00 am until 5.00 pm commencing 14 October 2018;

   (d)Such further and other times as the parties may agree.

2. For the reasons set out in the judgment delivered on 27 September 2018 the father was restrained and an injunction granted restraining him from:-

   (a)Consuming alcohol for a period of twenty four (24) hours prior to or during any period of time that the children are in his care;

   (b)Denigrating the mother, members of her family including Ms C in the presence of the children or allowing any other person to do so;

   (c)Communicating with or contacting the mother whether by telephone, email, SMS, social media or letters except where contact is permitted for the sole purpose of the welfare of and the father’s time with the children.

3. Handover arrangements are such that the children pass between the parties at B Street, Suburb C or at such other place as the parties may agree.

4. Paragraph 14 of the orders provide for the parties to attend upon Ms K, psychologist, for a family assessment and a report “directed to the mother’s application for relocation, the father’s application for shared residence and the time that the children are to spend with each of the parties…”.

5. The anticipated report was made available on 7 March 2019 and appears as Annexure “A” to the Affidavit of Ms N filed 12 March 2019.

6. By Application in a Case filed 19 February 2019, the mother sought litigation funding in the sum of $30,000 and the delivery up of a comprehensive list of furniture and personal effects of herself and the children.

7. By his Response filed 19 March 2019, the father proposed that he pay to the wife the sum of $50,000 by way of interim settlement of property, that he deliver up the furniture and household effects sought by the mother and that the time the children spend with him be increased as follows:-

   (a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday;

   (b)Each Wednesday from the conclusion of school until the commencement of school on the following Thursday;

   (c)For the first half of the April 2019 (commencing 13/4/19) and July 2019 (commencing 6/7/19) school holidays.

Documents relied upon

1. The mother relies upon the following documents:-

   (1)Initiating Application filed 13 August 2018.

   (2)Affidavit of mother filed 13 August 2018.

   (3)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 13 August 2018.

   (4)Report of Ms K dated 7 March 2019.

   (5)Affidavit of mother filed 5 April 2019.

2. The father relies upon the following documents:-

   (1)Response to Final Orders filed 19 March 2019.

   (2)Affidavit of father filed 18 March 2019.

Orders made by consent

1. At the commencement of the hearing counsel tendered an “aide memoire” which in part sets out the mother’s counter-proposal for the children to spend increased time with the father as follows:-

   (a)From 4.00 pm to 7.00 pm on each Tuesday and during school holidays from 10.00 am to 4.00 pm each Tuesday;

   (b)On alternate weekends from 4.00 pm Friday to 2.00 pm Saturday to commence on 18 April 2019;

   (c)During the intervening week from 4.00 pm Saturday to 2.00 pm Sunday to commence on 26 April 2019.

2. The parties are agreed that all handovers are to take place at the mother’s home.

3. It is intended that paragraphs 3 and 5 of orders made 27 September 2018 be discharged.

4. The parties also agreed that the father is to pay the sum of $50,000 by way of partial settlement of property to the mother’s solicitors for and on her behalf.

5. The only issue remaining for determination is the extent to which the father’s time with the children will extend beyond the mother’s proposal.

Interim parenting arrangements

1. A first day hearing has not yet been set for this matter although it is likely to occur relatively soon. Given that the mother seeks an order that she be permitted to relocate the children to the United States of America (“USA”) it is possible that a hearing date may be allocated in either late 2019 or early 2020. Subject to further application, interim orders are likely to be in place for at least nine months.

2. I rely upon the background and the interim parenting considerations in my judgment delivered 27 September 2018.

3. On the last occasion I noted that there was scant evidence as to the children’s relationship with their father and in particular “whether there is an important emotional attachment between them”.

4. The mother expressed concern as to the possible consequences of the father’s behaviour which she alleges was aggressive, controlling and coercive.

5. A significant issue was the extent to which the alcohol abuse was and remains an important consideration. The father acknowledged that he was an alcoholic and that he had sought assistance for alcohol addiction.

6. I noted the contention of the father that he had not consumed alcohol since August 2018 and never consumes alcohol when the children are with him. Hence, the interim orders reflect the father’s undertaking not to consume alcohol for a period of 12 hours prior to or during the time that the children are with him.

7. Whilst the mother proposes an extension of time for the children to spend with their father on an interim basis, she does not set out her proposal for the children to spend time with the father should the Court permit their relocation to the USA.  The relevance of that omission is apparent when the report of Ms K is considered.

8. The interim orders sought by the father are not dissimilar to the orders he seeks on a final basis.

9. The father’s Affidavit of 18 March 2019 is relevant only as to [16] to [21]. In essence, the father considers that since the supervision of his time with the children was not required following orders made 27 September 2018, he has been seeing the children without complaint or issue. He has provided medical reports as to his wellbeing, but in particular the extent to which he is able to moderate his alcohol consumption and he relies upon the family report that he considers supports an introduction of overnight time. It is not suggested by the father that the family report supports the extended order that he proposes.

10. The mother relies upon the matters raised in her Affidavit of 13 August 2018 but by reference to her proposal, she concedes that there is some advantage to the children of their time with the father being extended to include overnight time provided it is modest and tempered by the reticence of the children, but in particular Z, that any increasing time with his father be modest.

11. The mother’s counsel reinforced the potential risk to the children should the father’s alcohol intake relapse into excess consumption. The father concedes that he no longer abstains from alcohol consumption but that he now has insight and control.

12. The mother relies upon her most recent Affidavit filed 5 April 2019. At [11] she agrees that the order in place preventing the father from consuming alcohol for a period of 24 hours prior to or during any period that the children are with him continues. There is nothing in the affidavit which suggests that the father has relapsed into excess alcohol consumption, or that anything untoward has occurred during any period that the children have been with him. The father points out that since the orders of 27 September 2018 his time with the children has been uneventful.

13. The mother refers to the report and in particular a comment made by X that appears at page 6 that refers to friends of the father known as “the P’s” that are at the father’s home when they arrive. X considered that their regular presence at the father’s home was “weird”.

14. The mother’s counsel was not able to indicate how the allegation in [14] of the mother’s affidavit should be brought to account.

15. The mother submits that X is not comfortable in the father’s company and is nervous and anxious in anticipation of spending time in the father’s home. The extent of X’s anxiety is expressed in [19] of the mother’s affidavit:-

    X is struggling both emotionally and at school academically. He has had insomnia recently and often stays up crying at night saying that he hates school and does not want to go. Y is also having emotional issues.

16. Whilst the mother supports a gradual increase in the children spending time with their father, she remains opposed to the children spending overnight time mid-week. The mother considers X’s anxiety is already affecting his academic progress and a more cautious approach to increasing the father’s time should be undertaken.

Family assessment report

1. Ms Q was tasked with the preparation of a family assessment and the preparation of a report to assist the Court in determining the appropriate parenting arrangements for the children.

2. The report is comprehensive and by reference to the opinion and recommendations of Ms Q, it is clear that she was asked to consider the future final parenting arrangements for the children taking into account the mother’s application to relocate the children to the USA and the father’s opposition to relocation and his proposal that the children’s care be effectively shared between the parties.

3. The report was not directed to the interim arrangements pending a final hearing.

4. At page 21 of her report Ms Q considers that the mother should be permitted to relocate the residence of the children to the USA and whilst they should remain in her primary care until departure, the children’s time with the father should increase to incorporate two nights each alternate weekend from after school Friday to 4.00 pm Sunday and an evening in the intervening week.

5. Upon relocation, Ms Q considered that the children should spend half of each summer and mid-year holiday in Australia with the father and on other occasions should he be able to travel to the USA.

6. A difficulty arises in that the mother has not particularised the orders that she seeks as to the extent of time that the children should spend with the father if her application for their relocation is successful.

7. It is assumed that the mother’s reliance on the report of Ms Q suggests that the mother accepts that there is a benefit to the children in maintaining a meaningful relationship with the father and given the proposed relocation, they would spend extended time during their school holidays.

8. X told Ms Q that he sees his father twice a week and he felt that it was “enough”. He was considered to be ambivalent as to a sleepover noting that he misses his mother.

9. An enquiry of X’s school revealed that he is in year 3 and was achieving below grade in English but at an appropriate level for mathematics. There was no concern regarding his behaviour or emotional functioning and it was observed that he was very much involved in sport, appeared to be highly motivated, had a good achievement in technology, art and physical education.

10. Both parties had an involvement with the school and the report was that he appeared to have his daily needs well met.

11. Y expressed enjoyment at seeing her father and considered that a “sleepover” would be good.

12. The application of “standardised relationship tests” suggest that the children are more emotionally attached to the mother. That is entirely consistent with her continued primary care. The history of the parenting arrangements reflect that the father’s work and employment commitments, together with his lifestyle decisions have only allowed him to reassess the extent to which he is involved with the parenting of the children of recent time.

13. Y was observed to be affectionate with the father and their interaction was one of genuine engagement. X was a little more reserved and demonstrated a level of anxiety if he did not feel confident in the interaction with his father.

14. Neither child described feeling unsafe in the father’s care. Whilst he was observed to be confident in his presentation additional to the perceived advantage to the children of their time being equally shared between the parties, Ms Q did not consider that he had the same level of emotional attachment to the children as the mother.

15. He was too ready to dismiss any emotional distress of the mother or X’s anxiety at the time they spend with him progressing beyond the children’s capacity to accept and adapt to the changing environment.

Parenting considerations

1. Unlike the earlier proceedings, the mother concedes that it is important for the children to remain connected to the father. Whilst her counsel placed significant emphasis on the potential of the father’s alcohol consumption to be excessive and thereby the children may be at some risk, I find that the appropriate focus is not on the behaviour of the parties, but rather the ability of the children to accept the changing circumstances.

2. The orders sought by the father is a bridge too far. He does not present evidence that would support such a dramatic change, nor is he able to find support from Ms Q.

3. The mother is likely to remain as the children’s primary carer until the Court is able to determine the substantive applications of the parties, and in those circumstances a more cautious approach is warranted.

4. The recommendation of Ms Q that the children spend each alternate weekend with the father and one evening in the intervening period was based upon the resilience of the children and their ability to undertake the changing circumstances without putting at risk their stability or exacerbating their anxiety, most obviously displayed by X.

5. I bring to account the provisions of s 60B of the Family Law Act 1975 (Cth), s 60CA and s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).

6. I propose to retain paragraphs 2 and 4 of the orders made 27 September 2018 and discharge paragraphs 3 and 5.

7. I propose to order that the children spend time with the father as follows:-

   (a)On each alternate weekend from the conclusion of school (or 3.00 pm if a non-school day) on Friday until 4.00 pm Sunday;

   (b)From 4.00 pm to 7.00 pm on each Tuesday;

   (c)During school holiday periods from 10.00 am Tuesday to 10.00 am Thursday of each week.

8. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 April 2019.

Associate:

Date: 17 April 2019