Powers and Powers
[2008] FMCAfam 821
•4 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POWERS & POWERS | [2008] FMCAfam 821 |
| FAMILY LAW – Parenting – interim application by father to spend time with children aged 5 and 3 years. |
| Family Law Act 1975 |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MS POWERS |
| First Respondent: | MR POWERS |
| File Number: | DUC 115 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 11 July 2008 |
| Date of Last Submission: | 11 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Wong |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Mr G. Kenny |
| Solicitors for the Respondent: | Kenny Spring Solicitors |
IN ADDITION TO PARENTING ORDERS MADE BY CONSENT ON 11 JULY 2008, THE COURT ORDERS PENDING FURTHER ORDER THAT:
The children [B] born in 2002 and [C] born in 2005 spend time with the father as follows:
(a)Subject to subparagraph (b), each alternate weekend from Thursday at 4.30 p.m. until Sunday at 4.00 p.m.
(b)In the event the father is unavailable to personally take and collect [B] to and from school on any Friday of the weekend the children spend time with him, or the father is unable to care for [C] on that Friday, the father notify the mother on the Tuesday evening of that week, and the children’s time with the father will commence on the Friday at 4.30p.m of that weekend, instead of the Thursday.
(c)Each Tuesday afternoon from after school/pre-school until 6.30p.m. extending to 7.00p.m. during daylight saving periods when the father will provide the children with their evening meal provided that the father is available to personally spend this time with the children.
(d)For two 7 day periods during the Christmas school holidays, such periods to be agreed between the parties, and failing agreement:
(i)From midday 1 January 2009 until midday 8 January 2009; and
(ii)For a period of 7 nights concluding at midday on the last Saturday of the school holidays.
(e)In the event the children spend the last week of school holidays with the father in accordance with (d)(ii) herein, the children’s weekend time with the father in the first school term to commence on the second weekend after [B] returns to school.
The father be at liberty to attend events relating to either child at school, day care or otherwise, to which parents are invited.
Pursuant to section 65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Powers & Powers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DUC 115 of 2008
| MS POWERS |
Applicant
And
| MR POWERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns interim parenting arrangements for [B] aged 5 and [C] aged 3 years. After living together for 11 years, the parties separated in August 2007. The mother initiated proceedings for property settlement and parenting arrangements on a final basis in April 2008. The father then initiated proceedings on an interim basis in June 2008.
The parties are in dispute over interim financial issues and those issues have been listed for interim hearing in August. The parties will then attend a conciliation conference at the end of August to attempt resolution of financial issues on a final basis.
At hearing on 11 July 2008, a number of parenting orders were made by consent. The parties agreed to orders for equal shared parental responsibility, for the children to live with the mother and for the children to spend half the short school term holidays with the father. The parties agreed to arrangements for the children on special days and to orders for the sharing of information about the children’s welfare.
The issues for the court’s determination were the amount of time the children would spend with the father during term time and during the Christmas school holidays.
In his interim application, the father sought orders for the children to spend equal time with him. In her response, the mother sought orders for the children to spend alternate weekends with the father from Friday afternoon until Sunday afternoon. At hearing, each party sought different orders. The father sought orders that the children spend at least 3 nights on alternate weekends as well as one night in the alternate week with him. The mother sought orders that the children spend alternate weekend time from Friday to Sunday as well as each Tuesday afternoon until evening with the father.
The mother is 33 and the father 37 years of age. The parties live in [X]. The father is living in the former matrimonial home with his partner, Ms S. He is an Information Technology consultant with flexible working hours. The mother is living with the children in rental accommodation. The mother works a few hours a week as a [omitted]. [B] is in his first year of school at [S] School in [X]. [C] attends family day care on Tuesdays, Wednesdays, and Thursday mornings.
The parties give different historical versions of their child rearing responsibilities when they lived together. The mother says the father exaggerates his day to day caring and domestic role in his affidavit. However, the parties agree the mother was the stay at home parent while the father worked full time until the end of 2006, his work involving some travel away from the area. The father deposes to a working week of approximately 50 hours from 8.00a.m. until 6.00p.m, “including various travel.” The mother breast fed one child until he was 18 months and the other until he was 2 years of age. Since having the children, the mother has not worked more than a few hours a week.
From late 2005, the father was affected by an anxiety disorder. As a result, he says he had 2 months away from work towards the end of 2005 and in late 2006 he resigned altogether. He was then diagnosed with “bipolar affective disorder” known as bi-polar II and was treated with a mood stabilising drug. The father spent 2 periods of approximately 6 weeks in psychiatric hospitals at the end of 2006 and early 2007. During these periods of hospitalisation, although the mother took the children to see the father, the children’s time with the father was very limited. The father was discharged from [omitted] Hospital in March 2007 and recommenced employment just prior to the parties’ separation in August 2007.
There are no current parenting orders. In recent months the children have been spending most alternate weekends with the father and the father has also attended the occasional event for one of the children. Although the parties disagree on how this arrangement came about, it is common ground that the children have not spent more than two consecutive nights with the father since the parties separated, with the exception of the June 2008 long weekend when they spent three consecutive nights with him.
The mother says the parties are not cooperating effectively and have poor communication. She claims to feel intimidated by the father’s demands of her. She claims the father recently stalked her in the car which prompted her to report her apprehension to police. The father’s counsel submits the mother makes these claims for the purpose of these proceedings. Counsel submits the email correspondence between the parties annexed to the father’s affidavit about arrangements for Mother’s Day[1] shows the tension between the parties is not significant.
[1] Annexure G to father’s affidavit sworn 21 May 2008
The parties have not yet consulted Mr Waddell, the family consultant based in Dubbo, nor has Mr Waddell yet met with the children. However, Mr Waddell gave short oral evidence as to matters the court should consider when considering arrangements for young children of 5 and 3 years. Mr Waddell said the court should have regard to the children’s attachment history and the degree of cooperation and communication between the parties. Mr Waddell said the arrangements the children have been used to should be continued as far as practicably possible. Mr Waddell said if the court finds communication between the parties is poor and the parents are unable or unwilling to create a positive emotional environment for the children, then equal or substantial time with each parent is contra-indicated.
Mr Waddell said that if the court accepts that the mother has been the children’s primary carer day to day, their primary attachment will be to the mother, even though the children may well have a significant attachment to the father. Mr Waddell referred to the recent report published by Dr Jennifer McIntosh and Professor Richard Chisholm, a former Judge of the Family Court of Australia, concerning their preliminary findings that children, particularly very young children, will suffer negative consequences if they are required to spend equal or substantial time with each parent, when their parents are in continuing conflict.
I refer briefly to parts of that research paper. Paragraph 2 says[2]:
In discussing implications to family law practice and legislation we suggest that it will be important for lawyers and dispute resolution practitioners to give careful attention to the likely consequences for children, good or ill, of shared care arrangements. Predicting such consequences will never be an easy task, but may be assisted by attending to the relevant factors outlined here. Professionals in family law, we suggest, need to have regard both to relevant social science findings and to the legislative guidelines as they try to assist conflicted parents towards developmentally sound post-separation care arrangements whether agreed or adjudicated.
[2] McIntosh, J and Chisholm, R (2007) “Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research” Australian Family Lawyer Vol 20, No. 1
At page 7 of the report the authors consider the nature of the strain imposed for very young children and infants by developmentally inappropriate living arrangements. The authors say this[3]:
Part of the developmental conundrum posed for young children of divorce is this: their attachment formation is likely to be poorly affected (or to become ‘disorganised’ in theoretical terms) when that infant does not have a continuous experience of reliable care with either parent. Shared care arrangements that involve frequent moves from one parent to another can, inadvertently, bring about this experience. Frequent transitions of care and absences from each parent necessarily interrupt the infant’s experience of care with each parent, especially their relationship with a primary carer when there has been one. This brings about potential developmental difficulties for infants, particularly those with parents who remain acrimonious and struggle to facilitate a smooth transition for the infant.
It is well documented that conflict between parents has an adverse impact on their ability to parent sensitively, and inter-parental conflict brings a higher likelihood of harsh styles of discipline and diminished emotional responses, which are parenting behaviours associated ultimately with the child’s emotional insecurity and social withdrawal."
[3] At page 4
Further on they say:
There are important developmental reasons... to be cautious about the recommendation of substantially shared care for children under four. Indeed we hope we have shown in this section why caution becomes more urgent in the case of the infant and the young child of high conflict divorce.
While I accept the father’s counsel’s submission that this is not a case involving the high level of acrimony and distrust the court sees in some cases, I am not satisfied the court can afford to disregard the warnings given in the McIntosh/Chisholm paper, particularly given the concerns expressed by the mother and the young age of the children.
Legal principles
The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway.
Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the 2 primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
The children are living with the mother and spending regular time with the father. Neither party suggests this should not continue. While the father wants the children to have more time with him, he does not suggest the children need more time for the purpose of having a “meaningful” relationship with him. There is no dispute, and I accept, that the children enjoy spending time with the father because they do enjoy a “meaningful” relationship with him.
I give some weight to this factor.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
No issues relating to abuse, neglect or family violence arise in this case.
The father acknowledges he suffers from a mental illness, known as
bi-polar II. However, there is no evidence to suggest the father is likely to cause the children any physical or psychological harm as a result of this condition. The father’s treating psychiatrist at the [omitted] Hospital in Orange, Dr B, states in his recent report[4] that with appropriate treatment, the father’s mood disorder is well controlled.
THE ADDITIONAL CONSIDERATIONS
[4] Annexure B to affidavit of Dr B sworn 10 July 2008
The child’s expressed views and the weight those views should be given.
There is no objective evidence as to the children’s views, but given their young ages this is not a factor to which I have regard.
The nature of the relationships between the child and each parent and the child and other persons.
There is no objective evidence as to the children’s attachments to each parent. However, I accept that the children enjoy a good relationship with each party, as deposed to by each party.
The mother says, and I accept, that the children enjoy a close relationship with their maternal grandparents with whom they spend almost every second weekend.
I give no substantial weight to this factor.
The willingness and ability of each parent, and in this case, each party, to facilitate and encourage a close and continuing relationship between the child and the other parent.
From the time of separation in August 2007, the father says he saw the children a couple of times a week at the former matrimonial home, alleging the mother was obstructing his contact with the children.
The father claims that since February 2008, the mother has refused to facilitate the children spending time with him except on alternate weekends from Friday until Sunday afternoons and at occasional events, when he has wanted an equal shared arrangement.
The mother says the father saw the children only sporadically in the first few months after separation, by his own choice, and despite her offers to him during the 2007/8 Christmas school holidays, the father chose not to see the children for 5 weeks. The mother complains the father has not accepted her offers for the father to spend extra time with the children, including taking [B] to soccer training. The mother claims the father been unreliable in relation to arrangements on many occasions, often disappointing the children. The father disputes the mother’s version of events, though acknowledges that at times he has been unavailable, including a weekend in April this year, when he had plans to clean out his partner’s old house. The father says the mother offers him time when she knows he is working or otherwise unavailable.
While I am unable to resolve these factual differences at an interim hearing, from a reading of email correspondence about Mother’s Day, I am not satisfied either party has always demonstrated a child-focussed approach to the parenting arrangements. When the mother asked the father to allow the children time with her on Mother’s Day, the father asked for an extra night to compensate him for the loss of time this would involve. The mother declined to address this request, implying the father’s suggestion was entirely unreasonable. Each party took the opportunity to score a point against the other party, rather than focussing on the children’s needs.
On the evidence available at this stage, I find it likely that each party will be willing and able to facilitate the children’s time with the other and is likely to be assisted by the making of court orders. I have already made an order for the parties to attend Centacare in [X] to improve their co-parenting skills.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
There is no significant disagreement that each party has the capacity to provide for the needs of the children in a physical and intellectual sense. Each, however, suggests the other is not appropriately meeting the children’s emotional needs.
The father says the mother has limited the children’s time with him, disregarding the children’s emotional need to spend time with him.
The father says he has been an active hands on father, though provides almost no evidence as to what he does with the children when they are with him.
The mother says the father has been insensitive to the children’s needs by making negative comments to them about her, and by disappointing them when arrangements have been made for them to see him.
The mother says the father has not been giving the children one on one time, as recommended by [B]’s counsellor, even though the father knows [B] has been showing signs of anxiety. The mother criticises the father for allowing the children to spend the majority of their time with him playing computer games.
While I can make no findings as to these allegations of each party, I do have concerns about the level of each party’s understanding of the importance to the children of a positive co-parenting environment.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
Since separation, as already noted, the mother says the father has disappointed the children by failing to spend time with them when opportunities have arisen or arrangements have been made. The mother says the father has failed to attend all but one of the counselling appointments arranged for [B] with psychologist Ms T, despite being invited to do so. The mother says the father has involved the children in the parties’ dispute causing the children to be distressed and tearful on return from their time with him, repeating the negative remarks the father has made about her.
The father says he has been paying child support of $488 a week in accordance with the Child Support Agency’s assessment. The mother says the father has been unreliable in payment of child support, accruing substantial arrears by mid-June 2008 and continuing to be in arrears.
While I am unable to make findings as to the extent of the father’s failure to take opportunities to spend time with the children, and as to the mother’s allegation that the father has been involving the children in the parties’ dispute, I am persuaded that the father has been unreliable in relation to child support payments. The father himself concedes he accrued arrears and does not challenge the mother’s evidence that he withdrew $9,000 from the loan account secured on the former matrimonial home on 6 June 2008 to meet at least some of his arrears[5]. I also accept, on the basis of a Child Support Agency document provided to the court immediately after hearing that the father was still in arrears of child support of $2,902.07 on 14 July 2008. I find the father’s attitude, in this regard, unsatisfactory.
[5] Exhibit 2
In relation to the father’s involvement with the children in the 18 months prior to separation, I find from the medical evidence tendered in evidence that the father was unwell on and off for at least 18 months before the parties separated, which I am persuaded would have limited the father’s ability to maintain an active involvement in the children’s lives, particularly in the last months of 2006 and the early months of 2007.
I am satisfied the mother has carried the majority responsibility in relation to all aspects of the children’s lives in the 18 month period prior to separation and since separation. This is a factor to which I give considerable weight.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
I have regard to each party’s evidence that [B] has shown signs of anxiety since the parties separated and is therefore likely to be vulnerable to change. I take into account that both children are used to spending the majority of their time with the mother, and are likely to miss her if separated from her too often or for too long.
PARENTAL RESPONSIBILITY
Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 61DA(3) provides that in interim proceedings, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that Order. In the present case, the parties have agreed to an order for equal shared parental responsibility. I agree such an order is in the best interests of the two children.
Under section 65DAA, I am therefore required to consider whether making orders that the children should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the children and whether such an arrangement is reasonably practicable. Substantial and significant time is defined to include weekend and holiday days as well as weekdays. Determining reasonable practicality involves, inter alia, consideration of the impact such an arrangement would have on the children.
I agree with Mr Waddell when he says that the court must find the balance between the need to ensure the children’s relationship with the father is maintained while limiting changes in the children’s arrangements, particularly if the children are required to move between households in a reasonably negative environment, as is the case here. I accept Mr Waddell’s view that children gain emotional security from spending the majority of their time with their primary attachment figure and that there are likely to be adverse consequences if that primary attachment is unsettled. Mr Waddell says that even “low level war” will lead to stress for the children and that, if there is doubt, in the children’s best interests, it is better to be cautious. I also have regard to the observations of the experienced clinical psychologist Alison Tucker[6] when she says the court must, to the extent possible, limit stress on vulnerable children. Ms Tucker says the court must first take account of each child’s age, temperament, developmental capabilities and their attachment relationships, then second, consider each parent’s emotional and physical availability, both before the separation and since. Adults, she says, must adapt themselves around children, rather than children around adults. Ms Tucker says “a particularly vulnerable group is young children (before school age”).
[6] Tucker, A (2008) “Shared Parenting: Public Perception vs Legislative Reality: Our Role in Making it Work for Children” The 13th National Family Law Conference Adelaide
In the present case, [B] and [C] are 5 and 3 years of age. [B] is in his first year of school. The children have been primarily cared for by the mother since they were born. The father’s availability to the children, both emotionally and physically, was compromised by his illness from the end of 2005, particularly from the end of 2006. The children were only 3 and under 2 years when the father was hospitalised at the end of 2006. The children have spent limited time with the father since then. [B] has demonstrated signs of anxiety. The parties are not yet communicating or working together in a cooperative and child-focussed manner. Each party is critical of the other. Neither has chosen to identify anything positive about the other. In all these circumstances, I am satisfied the children’s best interests are served by the court taking a cautious approach to the interim parenting arrangements.
While the father did not press his application for equal time, he sought at least four nights each fortnight. The father’s counsel submitted the children should not be separated from either parent for lengthy periods. He submitted that the children need input from the father in their day to day lives and they therefore need at least a 3 night weekend in each alternate week with the father and an overnight in the “other” week.
I agree with Mr Kenny, the mother’s counsel, that given the difficult time experienced by the children and the parties when the father became ill, a cautious approach is warranted.
Mr Waddell agreed with the father’s counsel that the children may enjoy spending Tuesday afternoons with the father until early evening. However, Mr Waddell did not think it was necessarily best for the children to remain with the father overnight. Mr Waddell warned of the need to reduce time when there is psychological hostility between the parties. I accept Mr Waddell’s opinion.
I am satisfied the children would benefit from some additional time with the father if the father can make himself available to personally spend the time with the children, but not otherwise. The father has adduced no evidence from his partner, and there is no evidence before me as to the nature of the children’s relationship with her. I have therefore ordered that if the father is not available to care for the children, the children’s weekend time with the father be reduced to two consecutive nights on each alternate weekend. I am satisfied the children would benefit from spending one afternoon each week with the father in addition to the alternate weekend, but that the children should return home by 6.30 p.m. I am satisfied the children would benefit from the father attending events in which they are involved at school or in relation to their extra curricular activities.
I am satisfied the orders I have made at the commencement of these Reasons are in the best interests of [B] and [C] at this time.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 4 August 2008
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