PILGRIM & STABLES
[2016] FCCA 1788
•20 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PILGRIM & STABLES | [2016] FCCA 1788 |
| Catchwords: FAMILY LAW – Parenting – interim application – two children – exposure to parent’s conflict – allegations of alienation – father’s mental health – child’s wishes – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: Goode & Goode[2006] FamCA 1346 |
| Applicant: | MS PILGRIM |
| Respondent: | MR STABLES |
| File Number: | NCC 142 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing date: | 30 June 2016 |
| Date of Last Submission: | 30 June 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 20 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Kilpatrick Hatton |
| Counsel for the Respondent: | Mr Allan |
| Solicitors for the Respondent: | Kekeff Associates Solicitors |
ORDERS
The parents have equal shared parental responsibility for Z, born (omitted) 2003, and Y, born (omitted) 2008.
That Y spend time with each of his parents equally on a two-two-three regime, and half of all school holiday periods.
That Z spend time with her father each alternate weekend from after school Friday until return to school Monday, with such time to coincide with the times Y spends with his father.
That both the mother and father contact Ms E, psychologist, within seven days of these orders, with a view to participating in family therapeutic counselling.
Both parents are to comply with all reasonable request and directions of Ms E for the purpose of therapeutic counselling.
Both parents are to ensure that the children attend their extracurricular activities whilst they are in the parent’s care.
All changeovers that do not take place at the children’s school shall occur by the parties or their nominees meeting outside (omitted) Supermarket at the (location omitted) entrance.
The children have telephone contact with the parent they are not spending time with at all times requested by the children.
The children shall be afforded privacy when speaking on the telephone with the parent they are not spending time with, and each party is restrained from causing or permitting the phone to be on loud speaker.
Each party is restrained from turning the children’s phone or internet off, such to prevent the children contacting the other party of their choosing.
Each party is to keep the other informed of their residential address, email address, mobile and landline, telephone numbers, for the purpose of communicating about the children’s care, welfare and development. And is to advise the other party in writing of any changes within 48 hours.
Each party is to notify the other as soon as possible of any emergency medical treatments and/or hospitalisation the children requires and/or receives.
Each party is to inform the other of any medications prescribed for the children by a registered medical practitioner from time to time, and provide the medication and appropriate instructions as to dosage and administration at the time of changeover.
Both parties are restrained from denigrating each other, or the other’s family, to, or in the presence of the hearing of the children, or causing or permitting any person to do so.
That in the event that either parent intends on taking the children on domestic holidays greater than 400 kilometres from the (town omitted) area, they shall provide at least 14 days notice to the non-travelling parent and at least seven days prior to travel provide a copy of the itinerary, accommodation details, and any return flights.
The parties are restrained from questioning and/or interrogating the children about their time with either parent.
All communication between the parties shall occur by way of email, except in circumstances of medical emergency concerning the children.
Pursuant to section 68B, the father is restrained, pending further order, from attending within 100 metres of the wife’s residence and work.
IT IS NOTED that publication of this judgment under the pseudonym Pilgrim & Stables is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
No. NCC 142 of 2016
| MS PILGRIM |
Applicant
And
| MR STABLES |
Respondent
REASONS FOR JUDGMENT
This is an interim hearing concerning the parenting arrangements for two children, Z, born (omitted) 2003, aged 12, and Y, born (omitted) 2008, aged 7.
The parents were in a relationship from 1998, married on (omitted) 2002 and separated in February 2015.
Proceedings were commenced by the mother on 22 January 2016. The mother relied on the following material and proposed interim orders handed up to the bench on the day of hearing:
a)the affidavits of herself filed 28 June 2016, 22 January 2016 and 17 May 2016;
b)the affidavit of Ms S filed 28 June 2016;
c)the affidavit of the maternal grandfather filed 29 June 2016;
d)the affidavit of the maternal grandmother filed 29 June 2016; and
e)Her notice of risk filed 22 January 2016.
The father relied upon the following material:
a)his amended response filed 28 June 2016;
b)the affidavits of the father filed 31 March 2016 and 9 June 2016;
c)the affidavit of Ms T filed 9 June 2016;
d)the affidavit of Ms C filed 9 June 2016;
e)the affidavit of Ms D filed 9 June 2016;
f)the affidavit of Ms L filed 9 June 2016;
g)the affidavit of Mr H filed 9 June 2016;
h)the affidavit of Mr B filed 9 June 2016;
i)the affidavit of Ms M filed 9 June 2016;
j)the affidavit of Mr J filed 14 June 2016;
k)the affidavit of Mr L filed 14 June 2016; and
l)the affidavit of Ms S filed 28 June 2016.
Both parties sought to rely on the memorandum from the family consultant Ms K dated 3 May 2016.
Seven exhibits were tendered.
The issues were:
a)Z’s stated views;
b)whether the mother was coaching Z;
c)the father’s diagnosis of post‑traumatic stress disorder and whether that was having an impact upon his relationship with Z;
d)exposure to parental conflict; and
e)family violence.
The Law
Guided by the objects and principles set out in section 60B and noting that the best interests of the children is my paramount concern pursuant to section 60CA, I must make orders that are in the best interests of the children. Section 60CC(2) and (3) set out the matters I must have regard to in determining the best interests of the children.
I must make an order pursuant to section 61DA. If I make an order for equal shared parental responsibility, I must consider and make a determination of the matters in section 65DAA.
The Full Court in Goode & Goode[1] at paragraph 82 set out the manner in which a Court should determine an interim hearing. I will follow that guideline.
[1] Goode & Goode[2006] FamCA 1346 at 82.
The Proposals
The parents ultimately agreed that the parenting arrangements currently in place with respect to Y should continue.
Y currently spends time with each parent equally on a two/two/three regime.
Accordingly, I must consider the arrangements for Z on an interim basis.
The father seeks an order that Z live with him and that she spends time with her mother each alternate weekend and half the school holidays.
The mother sought an order that Z live with her and spend time with the father in accordance with the child’s wishes.
The father’s proposed orders are proposed in circumstances where he believes the mother is actively trying to interfere with his relationship with Z.
The mother’s orders are proposed in circumstances where she believes that Z is having a very difficult time with her relationship with the father.
Z stopped spending time with the father on 31 March 2016, consistent with the two/two/three arrangement.
From that time until the interviews with the family consultant on 3 May 2016 Z spent every second weekend with her father from after school Friday until return to school Monday.
After the meeting with the family consultant, Z has only spent time with her father on two occasions. The parents do not agree on the reasons why Z will not go with her father.
The Full Court in Marvel & Marvelnumber 2[2] said:
“As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing.”
[2] Marvel & Marvel [2010] FamCAFC 101
They went on to say:
“Often, a conservative approach is adopted.”
There is a long line of authority to support the proposition that I am not restrained by the parents’ proposed orders. Indeed, I proposed alternate orders during the hearing and invited counsel representing the parties to make submissions about my proposed orders, which they did.
In circumstances where the reasons why Z will not go to her father are in dispute, I can rely more heavily on the independent evidence provided by the family consultant. It, too, it should be remembered, is untested, though.
The Father’s Post-traumatic Stress Disorder
Exhibits 2 through to 6 are reports from the father’s psychiatrist, Dr M. Those reports reveal a longstanding history of post‑traumatic stress disorder that, ultimately, caused the father to be discharged from the New South Wales Police Service on medical grounds.
The reports reveal past alcohol abuse and the father’s hypersensitivity to noise.
Exhibit 6 is a report from Dr M dated 29 December 2015. That report suggests the father has been preoccupied over the previous six to 12 months with the marriage breakdown. The father reported throughout that time of irritability, anxiety, sleep disturbance, poor memory and concentration.
The doctor reports that the father seems anxious, even agitated, leaving him distracted and preoccupied, unable to calm sufficiently, either to recover or to focus on other aspects of his future.
The doctor states that, “This state of affairs may continue for some time yet, judging from progress to date.”
Family Violence
Both parents allege family violence being perpetrated upon them by the other.
The mother annexed photographs of a black eye she allegedly received from being headbutted by the father. The mother says she reported the incident to her doctor, a counsellor and the police at the time.
The mother says that the police took no action because the father was a police officer at the time.
The father alleged that the mother was abusive, had physically assaulted him on occasions, but did not indicate that he had reported such violence to anyone at the time.
Until the evidence can be properly tested and assessed I cannot make a finding in relation to family violence.
Exposure to Parental Conflict
The family consultant was of the view that both parents’ behaviour at times have caused the children to be exposed to parental conflict.
In March of this year the father recorded an incident where the police were called to the father’s home by the mother.
It is alleged the father walked around in the presence of the children recording what the mother was doing and what other people were doing in the house.
This incident alone supports the family consultant’s views.
The police were not required and the father certainly should not have been recording the incident.
Z is also reported to have told the family consultant that the father leaves folders of information he has collated about the mother around the house, where it is easily seen.
If that is, in fact, occurring, it reveals a complete lack of insight on behalf of the father and it should stop immediately.
Coaching Z
There is nothing contained within the family consultant’s memorandum that raises a concern with regards to the mother’s coaching of Z.
The family consultant says the child may have been influenced by the mother but more likely by the parental conflict and loyalty demands placed on her.
In those circumstances, I cannot make a finding at this time.
I do note that the mother has encouraged Z to have dinner with her father on at least two occasions. She states that Z is quite anxious about spending time with her father.
Since the family consultant interviews Z has been seeing a psychologist, Ms E. She has seen the counsellor on two occasions. This was organised by the mother, she says, after being told by the family consultant that Z was suffering due to the conflict.
It would appear that the mother is doing all that she reasonably can to assist Z with her relationship with her father.
The Legislation
Section 60CC2(a)
It is trite to say that children will benefit from a meaningful relationship with both parents. Y continues to live in a equal‑care arrangement and appears to be benefiting from having a meaningful relationship with both of his parents.
Z, it would seem, is sensing that her father has rejected her. She wants a relationship with her father and wants it to be a positive relationship.
I am satisfied that with appropriate assistance from a third party that type of relationship can develop and Z will benefit from having a meaningful relationship with both of her parents.
Section 60CC2(b)
I must protect the children from harm, including psychological harm. I have not formed the view that either parent is deliberately causing psychological harm to their daughter.
I am satisfied that at times both parents have inadvertently caused psychological harm to their daughter by their behaviour. I am satisfied that the orders I will make will assist both parents to cease that behaviour and also will assist Z to overcome this harm.
Section 60CC3(a)
The family consultant said:
“Z has a strong sense that her father doesn’t trust her and that she is targeted by him.”
“Z stated the father writes down everything in a book, records her, takes photographs of her iPad messages with mum.”
“Z feels as though her father doesn’t trust her and possibly doesn’t love her, inappropriately and unnecessarily invades her privacy, and she feels hurt and rejected by his behaviour.”
Z said that while things are the way they are with her father she would like to spend less time with him.
Having regard to her reported demeanour, her age and the way in which she was able to indicate she wants the relationship to improve, a good deal of weight should be given to her views.
Section 60CC3(b)
Z has a strong bond with her mother. Her relationship with her father is currently strained.
At this interim stage I cannot make a finding as to why.
I will make orders that are intended to improve Z’s relationship with her father with the assistance of a qualified third party.
Section 60CC3(d)
Currently, Z is saying that she doesn’t want to go to her father’s home. I do not believe that it is appropriate for a 12 year old child to dictate terms.
I am of the view that she will be assisted by an order of the Court for her to spend time with her father. Her loyalty demands may be eased.
I am concerned that if I make orders consistent with the father’s proposal this would have a disastrous effect on her psychological well-being.
Section 60CC3(f)
Both parents have focused on each other’s faults. The mother does not trust the father. The father does not trust the mother and described her as a liar and abusive towards both he and his partner.
In focusing on each other, and not their children, they have both exposed themselves as failing to be able to meet the needs of their children, particularly on an emotional level.
Section 60CC3(i)
If what Z told the family consultant is true, then this highlights a very poor attitude to Z and demonstrates a very poor attitude to the responsibilities of parenting demonstrated by the father.
As the family consultant said:
“if the father is not able to work with Z in a way which is focused on Z’s feelings, regardless of whether or not she has been coached, and whether or not the father feels her feelings are warranted, she still has the feelings which need to be appropriately managed, then it is probable that the relationship will further decline over time.”
The father’s own doctor highlights the fact that he has been preoccupied with the marriage separation. He needs to now prioritise his relationship with both of his children and work with them and an appropriately qualified expert to ensure that he maintains a meaningful relationship with both children.
The mother too needs to stop blaming the father and acknowledge that her actions place Z in a very difficult situation that has caused her harm. She too needs to work with Z’s psychologist to ensure that Z understands that she should have a meaningful relationship with both of her parents.
Section 61DA(3) provides:
When a court is making an interim order, the presumption applies, unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
There is nothing contained within the evidence which leads me to the view that the presumption is inappropriate.
As I will make an order for equal shared parental responsibility, the provisions of section 65DAA are triggered.
In MRR and GR[3], the High Court emphasised that the section is in imperative terms.
[3] MRR v GR [2010] HCA 4
Clearly, Z is in a difficult space currently. The parents do not trust each other and do not communicate effectively.
For those reasons, an equal time arrangement is not in the best interests of Z. For the same reasons, it is not reasonably practicable.
Turning to whether substantial and significant time is in the best interests of Z, and whether it is reasonably practicable, for all of the reasons referred to previously, it is not in Z’s best interests, or reasonably practicable, for Z to spend substantial and significant time with her father.
Z has expressed the view that she wants to spend less time with her father at this time. She is currently seeing a psychologist to assist her during this time. I will make an order for the parents to engage in therapeutic counselling to further assist Z.
For these reasons I am of the view that the orders made are orders that are in the best interests of the children.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Middleton.
Date: 14.07.2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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