Partridge and Kennedy

[2010] FamCA 1166

FAMILY COURT OF AUSTRALIA

PARTRIDGE & KENNEDY [2010] FamCA 1166

FAMILY LAW - CHILDREN – application for interim parenting orders – where final orders provide child to begin overnight time with father from when she turns four – where overnight time has not commenced - where child not at risk in the father’s care – where child says she is opposed to overnight time with father - where the child believes mother opposes overnight time – where parties agree child not emotionally ready for overnight time – staged program of time leading to overnight time

Family Law Act 1975 (Cth)

APPLICANT: Mr Partridge

RESPONDENT: Ms Kennedy

FILE NUMBER: (P)SYC 4821 of 2010

DATE DELIVERED: 8 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 8 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Macpherson & Kelley Lawyers (Ms Musgrave)

SOLICITOR FOR THE RESPONDENT: Mr Maspero

Orders

1. I give leave to Mr Maspero to appear on behalf of the respondent mother today.

2. That order 2 of the orders made on 25 October 2010 is discharged.

PENDING FURTHER ORDER IT IS ORDERED:

1. That orders 4(e), (f) and (g) of the orders made on 12 April 2006 amended on 5 June 2006 and 26 September 2006 be suspended from the date of these orders until the commencement of the first term of school in 2012 and in lieu thereof the following orders be made:

   (e)A.     (i)     each alternate weekend from 9.30 am to 6.30 pm on Saturday              and from 9.00 am to 6.00 pm on Sunday commencing   20 November 2010;

   (ii)on each other Saturday from 9.30 am to 6.30 pm commencing                    13 November 2010;

   Order A(i) and (ii) to cease on 19 December 2010 at 5.00 pm;

   B.(i)     on Christmas Day 25 December 2010 from 10.00 am to   12 noon;

   C.(i)     from 3 January to 7 January 2011 on each day from 9.00 am to   5.00 pm; and

   (ii)from 9.00 am on 10 January 2011 to 5.00 pm on 11 January   2011;  and

   (iii)from 9.00 am on 13 January 2011 to 5.00 pm on 14 January   2011;  and

   D.(i)     each alternate weekend from 9.00 am Saturday to 5.00 pm   Sunday commencing 22 January 2011 and continuing during   each    school term.

2. From end term 1, 2011 for half of all school holiday periods in years ending in an even number and for the second half of all school holiday periods in years ending in an odd number, unless the parties otherwise agree contact will commence with the Father collecting the child from school where he has contact for the first half of school holidays and concluding by delivering the child to school.

3. The Father and the Mother attend the “Supporting Children after Separation” program run by Unifam and in particular the program entitled “Keeping Contact” on the first available date and do all things and attend at all workshops and upon all consultants and ensure the child’s attendance at all or any interview required as part of the program by Unifam noting the first day of the next program commences on 25 November 2010 at 10.00 am and for the purposes of registering in such program the Father to telephone Unifam on 9373 5500.

4. That Orders 3, 4 and 5 of the orders made on 25 October 2010 to continue.

5. Until the commencement of the first term of school in 2012, the Father shall collect the child from the Mother at F Market at L at the commencement of each period of time with the child and return the child to the Mother at Kentucky Fried Chicken at C Road, C.

6. All applications for interim orders are otherwise dismissed.

7. All applications for final orders are adjourned for mention at 10.00 am 20 December 2010.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC 4821 of 2010

Mr Partridge

Applicant

And

Ms Kennedy

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. These are interim parenting applications which relate to the parties’ daughter, who was born in March 2005 (the child).

3. A Children’s and Issues Assessment prepared by the family consultant, Ms T issued on 27 October 2010.  In her assessment the family consultant provides useful background and a statement which summarises the parties’ current circumstances which I incorporate into these reasons:

   ·       [The mother] was born in Japan and came to Australia, with her two children from a prior marriage ([K Kennedy] who is now 15 years of age and [R Kennedy] who is now 13 years of age), in 1999.  [The mother] has been in a relationship for several years, although she and her partner do not live together.  Her partner has four children the eldest of whom is an adult, living overseas; the other children, aged 17 years, 13 years and 11 years, live with him and spend time with the mother during weekends.

   ·       [The father] lives in a unit in [X] and [the mother] and the three children live in a house in North [L].

   ·       Both parents are employed:  [The father] works full-time as a Project Manager and [the mother] is self-employed, working from her home as a [music] teacher.

4. The child was born about four months after her parents separated.  She has always lived with Ms Kennedy who is her mother.  Within a few weeks of the child’s birth, litigation was under way and not long afterwards, Mr Partridge who is her father started weekly visits with the child at a child care centre.  These visits were supervised, with this arrangement continuing until after a defended hearing in 2006.  Final parenting orders were made in April 2006.  These orders were varied under the slip rule.  The effect of the orders was to gradually increase the time the child spent with the father and to immediately dispense with supervision. 

5. Put simply, for a number of years on the child’s birthdays, the time she would spend with the father increased.  From when the child turned four, she would start spending one night overnight each weekend with the father.  Further variations were to take place when the child started school.  The structure of the orders suggests it was anticipated by the Court the child would achieve her developmental milestones in accordance with her chronological age.

6. Although the parties disagree about many matters, they appear to agree their daughter is a bright and confident child.  Her confidence and desire to control her interviews with the family consultant lends support for this view.  In any event, the child turned four in March 2009 which is when the orders provided she would begin staying overnight with the father.  Block periods of half of each school holiday were to commence at the end of term 1, 2010.  That is, after she had completed her first term at school. 

7. Neither overnight nor block holiday periods of time have taken place.  The parties agree one attempt was made to have the child stay overnight in April 2009.  On that occasion she became upset and when by about 9.00 pm she was unable to settle, the father contacted the mother and by agreement, he took her home.  In the weeks which followed there was some encouragement from the mother to achieve overnight visits.  Nonetheless no further attempts were made.  Since then the parties have been at odds about when the child’s overnight time with the father should start.

8. According to the father it has been difficult to secure the mother’s support and encouragement which the child needed, to be comfortable with overnight visits.

9. Attached to the mother’s affidavits is a large volume of correspondence from her in which she asserts her commitment to the child spending overnight time with the father.  According to her, she believed the parties were, “Working together to enable [the child] to be more comfortable with you”, that is the father, “so that she could become more acceptable to overnight visitation”.  See letter dated 17 March 2010.  This and other correspondence from the mother makes plain she was not concerned about the father’s parenting capacity, nor does she suggest the child was at risk in his care.  I agree the evidence does not suggest the child would be at risk of harm or neglect in her father’s care overnight.  From the mother’s correspondence, one sees her concern about child support.  It is noteworthy she points out that if the father claims child support should be assessed by reference to the orders, rather than the time the child actually spends with him, he should have the child for the periods provided in the orders.  So that it is clear, the mother goes on to say she does not believe the child is ready to spend time with the father in accordance with the orders. 

10. Because of the impasse reached by the parties, the mother consulted a psychologist with the child.  This occurred in May 2010.  The father was not invited by either the mother or the psychologist to participate.  Given that as the psychologist, Ms Y, says in her report, the reason for the consultation related to the mother’s concerns about overnight visits between the child and father, it is difficult to see how the psychologist considered this task could be undertaken without at least interviewing him.   From the psychologist’s report, one sees background information and history was provided by the mother.  Ms Y spoke with the child’s teachers, who provided information about how at school the child spoke about her family and her general functioning.  Ms Y spoke also with the mother’s partner. 

11. Ms Y conducted a play session with the child at which the mother was present.  It does not appear there was anything other than the brief conversation by the psychologist with the child.  Whatever conversation took place occurred in the mother’s presence.  This was hardly a setting in relation to which the child would feel easy to discuss matters in relation to her father.  Nor did it provide a sound framework for the psychologist to obtain a good understanding of the situation. 

12. In any event, the psychologist reached the conclusions set out in her report and made the recommendations set out thereafter.  These are set out below:

    Conclusion

    Results of this assessment indicate that [the child] has a solid relationship and attachment with her original family especially with her mother and sister.  [The child] did not indicate a comfortable relationship with her father or an attachment to him as a parent figure.

    Although [the child] has had some contact with her father it appears that she has yet to develop a close relationship or attachment to her father.

    Despite the court orders indicating that [the child] should commence overnight stays with her father, [the child] does not appear psychologically and emotionally ready to commence such contact visits.

    The distress that overnight stays may cause [the child] may make the psychological distance and any future attachment to her father that may have otherwise developed difficult to achieve.

    Recommendation

    It is recommended that [the child’s] lack of emotional and psychological readiness be taken into account when deciding on access options for herself and her father.  There needs to be a structured longer term plan whereby a stronger attachment is developed towards her father prior to overnight stays taking place.  This period of adjustment should be for a period of no less than two years.  Overnight stays with her father should only occur once a thorough assessment of [the child’s] readiness is conducted again following a period of relationship building with her father.

13. In a nutshell, the essential point made by the psychologist is that she believes that the child is solidly attached to her mother and did not indicate a comfortable relationship with the father.  It is her view the child requires a period of adjustment in order to develop the type of emotional and psychological readiness required to make overnight time with the father successful.  The key component of her recommendation was, and I emphasise:

    There needs to be a structured longer term plan, whereby a stronger attachment is developed towards her father prior to overnight stays taking place.

14. Against this background it is curious to say the least that the next step taken by the mother was to terminate the child’s contact with the father.  The mother stopped the child’s contact with the father from 20 June 2010.  The mother can have been in no doubt that in suspending the child’s time, which I observe she was not entitled to do, she acted contrary to the advice provided by Ms Y.  The mother’s actions were inconsistent with her statements and correspondence to the effect that she genuinely supports the child’s relationship with the father. 

15. In any event, after the father commenced these proceedings, the mother resumed making the child available to spend time with him during the day.  As best I can tell, contact resumed on a day only basis in late September 2010. 

16. The family consultant met the child in October 2010. She was five years and six months of age.  In relation to the child the family consultant said:

    ·       [The child] (aged 5 years 6 months) presents as a confident, talkative child who likes to have some control of the direction of the conversation one is having with her.

    ·       [The child] is adamant that her father is not part of her family as he does not live in her home (with her mother, brother and sister).  She seems to have limited understanding of what a father is, although she said that she ‘might’ have her maternal half-siblings’ father for her father.  She seemed to reflect on this statement, commenting that she could not have him as her father as ‘he lives in Japan’.  Her family drawing comprised her immediate maternal family and her pets.

    ·       [The child] made both positive and negative comments about her time with her father.  She enjoys the activities they do but feels that her father does not take any interest in the movies/DVDs she likes to watch.  She commented that, ‘it is boring at his house’.  [The child] experiences her father as preferring to watch television programs which interest him or spending time on his computer rather than allowing her to watch programs which interest her and/or sitting and watching her favourite movies/DVDs with her.

    ·       When asked about her father’s home, [the child] consistently maintained that ‘there is only one bedroom’.  Further exploration about her father’s home and their time together resulted in [the child] stating very firmly that she would only talk about these things if the conversation did not involve any issues relating to her spending time with her father overnight:  ‘I am too young to have a sleep-over … my mum wants to keep me in her house …  Mum does not think it is good [for me] to go to him … Mum thinks he might have dangerous things [that] I might step on’.

    ·       Despite the foregoing comments, [the child] suggested that she ‘might’ spend overnight periods with her father ‘if he stops asking me’.  She immediately withdrew this statement saying ‘no, no, no … I just want him to stop asking me’ about staying overnight.

    ·       According to [the child], her mother does not like her father as ‘she married the wrong person’.  [The child] said that she had been told this by her mother.

17. In the mother’s affidavit, she reports that the child sleeps either with her or in the same room as her 11 years old half-sister, R.  Also that the first attempt to have the child sleep at a friend’s house was unsuccessful.  The child became upset and returned home rather than spend the night at her friend’s house.  A second attempt at a sleepover at a friend’s house was successful.  The success of this latter attempt may have been contributed to by the presence of her 11 year old half-sister.

18. I also note in the mother’s schedule of the father’s visits attached to her affidavit filed 20 October 2010, at least twice the child has visited Japan.  This demonstrates the child is able to sleep away from her mother’s home, albeit with her mother and would suggest the issue about sleeping at her father’s home overnight is unrelated to any need in the child to sleep only in her mother’s home. 

19. Both Ms Y and the family consultant indicate such difficulties as the child has in spending overnight time with the father are related to her readiness to spend longer periods of time with him and her ability to be away from her mother and maternal family.  Each of them points out that if overnight time starts before the child is emotionally and psychologically ready, this may set back the development of the child’s relationship with him and delay the child’s ability to spend the long periods of time provided for in the orders.  They both recommend a considerable period during which the child’s time with the father is gradually increased to achieve her “emotional readiness.”  Ms Y posited this may take as long as two years.  The family consultant gave no such timeframe.  I am inclined to the view that her opinion warrants greater weight than Ms Y’s, whose process as I have explained was flawed.

20. The family consultant said the parties need to participate in a program such as the “Supporting Children after Separation Program” run by Unifam.  The father has made arrangements to participate in that program and, albeit not without some difficulty today, the mother also agreed.  The program is due to commence on 25 November 2010.   It is likely to also involve therapeutic assistance for the child.  This is an important first step. 

21. There are other important steps that can be taken to progress the child’s emotional readiness for overnight time with the father.  The first of these involves changes being made in the mother’s home to the child’s sleeping arrangements.  The child is old enough to sleep independently from her mother and sister.  Steps should be taken within the mother’s home for that to begin forthwith.  It is also important for the mother that she has a known date to which she can work with the child to prepare her for visits overnight with the father.  The mother says she has provided unequivocal support to the child for overnight time with her father.  Although I have some reservations about this, it is clearly the case that the child does not believe her mother supports overnight contact with the father.  The child’s discussions with the family consultant, to which I have already referred, make this absolutely plain.  The point which follows from this is that it would appear the mother would benefit from expert support about how she can communicate to the child her support for the child’s relationship with the father, including spending time with him overnight.

22. The strong sense I have from the family consultant’s assessment is that if the mother was able to explain to the child that she supports overnight time with the father, this would relieve the child from any anxiety that, in taking such a step, she would be acting contrary to her mother’s wishes.  From the child’s perspective, the mother is the most important person in her life.  She is the parent with whom the child has lived from birth and is the person who has been her primary carer.  The child is reliant upon her mother and trusts her implicitly.  The mother is thus is a powerful position in relation to the child, and the manner and with whom the child builds relationships.  After the parties separated the mother established a relationship with her partner, J.  The child has been able to build a companionable relationship with him and his children.  While they have no doubt contributed to this outcome, it is almost certain that one of the key factors in this outcome being achieved was the active support given by the mother to the development of the child’s relationship with them. 

1. What the child has failed to appreciate is that the mother says she would like to achieve a similar outcome for her with her father. 

2. In my view, unless positive steps are taken now to progress the child’s time with the father, there is a great risk to the longevity of their relationship and a serious impediment of their relationship becoming one which is meaningful and valuable to the child.  The father’s proposal provides a well paced and sensitive age appropriate response to the child’s situation.  It enables the type of therapeutic intervention recommended by the family consultant, to commence and be completed.  It gives the mother the time she may need to obtain the type of assistance to help her communicate better to the child her support for the child’s relationship with the father, and the idea of overnight contact with him.  If the current situation is allowed to continue, this presents the greatest risk to the child’s relationship with the father.

3. On balance, I am satisfied it is in the child’s best interests to make orders largely consistent with those proposed by the father.  I have some sympathy for the mother’s position that the father’s proposal will have the child in his care every weekend.  The point is now she is at school such an approach does not give her a significant amount of time in out of school time with her mother and half siblings.  On the other hand, the amount of time the child has with the father, because it does not yet include overnight time, if it is only for one or two days in 14, will deny the child the opportunity to experience her father in a real parenting role.  Travelling time of about one hour each way eats into the child’s time with the father.  If the child was spending overnight time one weekend each second weekend, she would experience him parenting in a real rather than, with respect, a tokenistic way.  However, the parties agree overnight time should not start now and thus, although this will mean the child does not have a lot of weekend recreation time with the mother before mid December 2010, I am persuaded that the approach adopted by the father, as expressed in orders 2(e)(a)(i) and (ii) is the better approach if the child’s relationship with him is to be strengthened in the way recommended by both Ms Y and the family consultant.  I am satisfied that by the time the father’s proposal for overnight time is reached, it is more likely than not the child will be emotionally ready to spend overnight time with him.  The key of course to that is the mother taking the steps to which I have referred. 

4. There was an issue about the arrangements for changeover and collection.  According to the father, the child has told him she would like him to collect her from her mother’s home.  The mother doubts that this is true, but is not in a position to seriously question it.  I am somewhat perplexed about what might lie underneath the mother’s opposition to the father’s proposal contained in order 3, but nonetheless her opposition at this point is real and as this is an interim hearing, I am not in a position to address the types of matters which would require consideration to make orders as sought by the father in proposed order 3.

5. Thus, and so as to reinforce with the child her mother’s support for her spending time with the father, the changeover arrangements will alter slightly, but not to the extent sought by the father.  The collection point will continue at F Market at L, and the return point will become Kentucky Fried Chicken at C Road, C.  These are public places about which none of the risk/anxiety issues raised by the mother would remain unaddressed.

6. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 December 2010.

Associate: 

Date:  20 December 2010