PULLMAN & PULLMAN
[2013] FCCA 2447
•3 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PULLMAN & PULLMAN | [2013] FCCA 2447 |
| Catchwords: FAMILY LAW – Parenting – limited issues – sole parental responsibility. |
| Legislation: Family Law Act 1975 (Cth) |
| Applicant: | MR PULLMAN |
| Respondent: | MS PULLMAN |
| File Number: | CSC 391 of 2012 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 2, 3 September 2013 |
| Date of Last Submission: | 3 September 2013 |
| Delivered at: | Cairns |
| Delivered on: | 3 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Sinclair |
| Solicitors for the Respondent: | Sandra Sinclair Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Victiore |
| Solicitors for the Independent Children's Lawyer: | Lehmann Featherstone |
ORDERS
The Mother have sole parental responsibility for the major long term decisions for the child [X] born …2004 including but not limited to:
(a)her education;
(b)her religious and cultural upbringing;
(c)her health;
(d)changes to her living arrangements which do not make it significantly more difficult for the child to spend time with each parent.
The mother is to advise the father in writing at least 21 days prior to making any long term decision to provide the father the opportunity to consider the decision and provide any response in writing. The final decision will be that of the mother.
Notwithstanding the provisions of order 1 herein, the parent with whom the child is living with at the time is to be responsible for her day to day care, welfare and development.
TIME WITH PARENTS
The child shall live with the Mother.
The child spend time with the father:-
(a)On Sunday the 15 September 2013 from 9-5pm;
(b)Each alternate Friday commencing 20 September 2013 from the conclusion of school to the commencement of school the following Monday. If the Monday is a public holiday, changeover shall occur at 5.00pm on Monday;
(c)At such other times as may be agreed to between the parties in writing with the father’s weekend time to be suspended during school holidays.
SCHOOL HOLIDAYS
Up to and including Christmas holidays in 2014 the child shall spend the following times with the mother:
(a)From 2.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years.
(b)From 2.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years.
The child shall spend the following times with the father:
(a)From 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years;
(b)From 2.00pm Christmas Day until 2.00pm Boxing Day in even numbered years;
(c)For the Christmas 2013 school holidays, the father is to spend 2 separate periods of holiday time with the child being of 7 days each;
(d)For the Christmas 2014 school holidays, the father is to spend 2 separate periods of holiday time with the child the first period to be for 14 days and the second for seven days;
(e)For the Christmas 2015 school holidays and thereafter the father is to spend a 3 week block period of time with the child in accordance with the regime of time set out in order 8 herein.
That the school holidays are deemed to commence at midday on the first day after school ceases and conclude midday the Saturday prior to school resuming.
The child spend time with the father for the first half of each Queensland Gazetted school holiday period (incorporating Christmas Eve, Christmas Day and New Year's Day) in even numbered years and the second half in odd numbered years and with the mother for the second half of each Queensland Gazetted school holiday period in even numbered years and the first half in odd numbered years.
The father’s weekend time in even numbered years is to recommence the first weekend after school resumes.
The father’s weekend time in odd numbered years is to recommence the second weekend after school resumes.
Changeover in accordance with these orders shall occur at school, however if changeover cannot occur at school, it shall occur at McDonalds restaurant at Suburb A or as agreed to in writing.
SPECIAL TIMES
Notwithstanding the previous orders the following shall apply:
(a)Unless the child is already spending time with the mother the child shall spend the following times with the mother:
(i)Mother’s Day from 9.00am to 5.00pm;
(ii)The mother’s birthday from 9.00am to 5.00pm.
(b)Unless the child is already spending time with the father, the child shall spend the following times with the father:
(i)Father’s Day from 9.00am to 5.00pm;
(ii)The father’s birthday from 9.00am to 5.00 pm.
(c)If the child is due to be with the mother on the child’s birthday the child shall spend time with the father:
(i)From 1.00pm until 5.00pm if a non school day;
(ii)From conclusion of school to 8.00pm if a school day.
(d)If the child is due to be with the father on the child’s birthday the child shall spend time with the mother:
(i)From 1.00pm until 5.00pm if a non school day;
(ii)From the conclusion of school until 8.00pm if a school day.
In the event [X] requests phone communication with either parent then the parent in whose care she is in shall facilitate the phone call.
When either parent intends taking the child on a holiday away from Cairns (not overseas) they are to notify the other parent in writing 30 days prior to the departure the address where the child will be staying and a contact telephone number for the child.
OVERSEAS TRAVEL
That the mother and father be permitted to travel with the child overseas on the following terms and conditions:-
(a)The parent proposing to travel shall provide the other parent with as much notice as possible and at least 60 days’ notice in writing of any intended overseas travel and a proposed itinerary;
(b)As much time as possible of the proposed holiday shall to be taken during Queensland gazetted school holiday periods;
(c)The travelling parent shall provide the other parent with copies of both the child’s and the travelling parent’s return air tickets prior to leaving Australia;
(d)The travelling parent shall provide the other parent with the address at where the child will be staying and a contact telephone number.
(e)The travelling parent shall provide the other parent with contact details of the closest hospital/medical clinic and police station to where the child will be staying;
(f)The mother is permitted to hold the child’s passport.
(g)The mother is to provide the father with a photocopy of the child’s passport to enable the father to make airline ticket bookings.
(h)If the child’s holidays is in school time ensure all homework provided by the school is completed by the child.
At any time the child’s passport is due for renewal both parents will execute a passport application and will do all things necessary to direct and authorise the Department of Foreign Affairs and Trade to issue a passport to the child within thirty (30) days of receipt of the renewal notice with both parents to equally share the costs of this renewal.
In the event that either party fails to sign any document necessary to give effect to these Orders (including all documents to do with the securities) the Registrar of the Federal Circuit Court of Australia at Cairns/Townsville is authorised to sign such document. An affidavit deposing to such failure will be sufficient evidence.
EDUCATION
The child shall continue her education at School 1 until the completion of her primary years, and then attend School 2 high school if that school is available.
Each parent is authorised to contact the school the child attend from time to time and obtain such information at the parent’s expense as may be requested by that parent. This Order is express authority for the school/s to release copies of school reports, school newsletters etc, to each parent.
The parents are each entitled to and authorised to attend at the child’s school within the guidelines of such facilities and in particular to attend for parent teacher interviews, parades, sports days and so forth.
A copy of these orders shall be provided to the child’s school/guidance officer within 7 days of the orders issuing from the court by the Independent Children’s Lawyer. The Independent Children’s Lawyer is permitted to redact any mention of the mother and father attending upon any medical practitioner, psychologist or psychiatrist.
MEDICAL
That unless otherwise agreed in the event that the child is sick and except in the case of a medical emergency the parties are to use their best endeavours to take the child only to 24 Hour Medical Centre.
That unless otherwise agreed in the event that an illness requires treatment outside the operating hours of 24 Hour Medical Centre then the child shall be taken to Cairns Base Hospital.
The parent in whose care the child is in shall ensure that the other parent is notified as soon as possible, other than for the usual childhood ailments, prior to taking the child to the nominated centre or hospital.
In the event of a medical emergency the parent whose care the child is in shall notify the other parent of the emergency immediately and advise the details of same. This Order does not require notification of attendance at a medical practitioner by the child for usual childhood ailments.
Each parent is authorised to contact any health professionals or facility at which the child may attend and obtain such information at the parent’s expense as may be requested by that parent. This is express authority for the treating medical professionals to release copies of any reports, test results etc to each parent.
A copy of these orders shall be provided to 24 Hour Medical Centre within 7 days of the orders issuing from the court by the Independent Children’s Lawyer.
THERAPEUTIC INTERVENTION
Both parents shall ensure the child’s continued attendance upon Ms D, Child Psychologist and shall share equally the costs of same. The mother to pay for all odd sessions (1,3,5 etc) and the father to pay for all even sessions (2,4,6 etc)
That the child continue to attend upon Ms D (the child’s psychologist) until she recommends that the treatment cease.
That the father continue to engage with Mr E psychologist as recommended by him, and Mr E may consult with the Child’s psychologist. The father is to encourage his partner to attend such sessions. The costs of same to be paid by the father.
That the mother is to engage with Ms F, psychologist and continue treatment until such time Ms F recommends treatment cease. Ms F may consult with the Child’s psychologist. In the event the mother is recommended to see a psychiatrist, such psychiatrist is to be Dr G and the mother shall continue such sessions at the recommendation of Dr G. Dr G may consult with the Child’s psychologist. The costs of same to be paid by the mother.
The Independent Children’s Lawyer to provide to Dr G, Ms F and Mr E a copy of the first Family Report of Ms H dated 5 February 2013; second Family Report of Ms H dated 28 July 2013 and copy of an email to the Independent Children’s Lawyer from Ms H dated 31 July 2013.
In the event the mother makes notification to the relevant State authorities regarding the child’s care whilst with her father, the mother is to forthwith notify Ms F and Dr G, if she is seeing him, of such notification including the date and nature of the allegation she has raised.
The mother is to forthwith notify the father she has made a complaint to the relevant authorities whilst the child is in his care.
The Independent Children’s Lawyer has liberty to provide a copy of the Orders to the relevant State authorities.
These orders shall be explained to the child by Ms H.
The child shall be advised by Ms D at the conclusion of her treatment with her that both parents will ensure the child re-engages with Ms D in the future in the event the child so request to do. The parents to pay for any such sessions on the same basis as set out in Order 26 herein.
RESTRAINTS
The mother and father are restrained from moving the child’s permanent residence from the Cairns area.
The mother is restrained from taking photos of bruising to the child.
Neither parent shall denigrate the other parent or extended family members in the presence or hearing of the child and shall use their best endeavours to ensure no other person denigrates the other parent in the presence or hearing of the child.
That neither parent discuss any issues in relation to the court proceedings or the child’s living arrangement in the presence or hearing of the child and ensure to the best of their ability that no other persons will discuss any issues in relation to the court proceedings in the presence or hearing of the child.
Neither parent shall interrogate the child about the other parent on any occasion.
COMMUNICATION BETWEEN PARENTS
The parents shall communicate by text and email in a respectful manner.
Each parent shall notify the other parent in writing of any changes of contact telephone numbers, email addresses or residential address within 7 days of such change.
Neither parent shall use the child to pass on information to the other parent.
OTHER ORDERS
The father agrees, that should the child become distressed at any occasion when the child is in his care, he will return the child to the care of the mother. This will in no way affect the father’s time with the child continuing in accordance with these Orders.
The mother and father are permitted to change dates and times set out in these orders by agreement in writing.
The Independent Children’s Lawyer is discharged.
All outstanding application are removed from the pending cases list.
NOTATION:
Pursuant to ss.65DA(2) and 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 are set out in Annexure A and these particulars these orders.
IT IS NOTED that publication of this judgment under the pseudonym Pullman & Pullman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CSC 391 of 2012
| MR PULLMAN |
Applicant
And
| MS PULLMAN |
Respondent
REASONS FOR JUDGMENT
The matter of Pullman is a parenting application which at the commencement of the hearing was potentially very fraught.
[X], born …2004, lives with her mother and always has and she is clearly primarily attached to her mum. However, she has an equally important and beneficial relationship with the father.
Her relationship with each of her parents have suffered from some serious deficits in the past. For her mother that may be due to her mother’s functioning, mental health functioning, emotional functioning for which I make no criticism. That is just a factor and how it is.
For her father, in part, his lack of sensitivity and understanding that his daughter’s needs were different to the mother’s needs. He was concerned that it was the mother imposing upon the child her will of behaviours that caused him concern such as fear at night and needing a light on, wanting a cosier bed, more hugs, cuddles, sleeping with dogs, etcetera. As these parents cannot communicate with each other and are unable to sit down and talk about their daughter, each of them perhaps fears the worst for their daughter whilst in the other’s care. Those fears are clearly transferred to their daughter and we have a child who has taken on the troubles of each of her parents and is stuck in the middle.
This was real for [X] as clearly set out in court exhibit 2 which is the second report prepared by Ms H. Ms H prepared two reports. Court exhibit 1, dated 5 February 2013 and, court exhibit 2, dated 26 July 2013. In this report she was most concerned as to [X]’s functioning and opined that the child required instant and immediate psychological assessment.
The mother and father obtained psychiatric and psychological assistance. It was said that the mother may be exacerbating the child’s fears by the mother’s own alarmed reactions to [X]’s continued complaints. That the father needed to listen to his daughter and be more aware of her needs as a separate sentient being and that the child may be in a state of crisis.
Now, to each of these parents to their credit and no doubt, in part, due to the excellence of Ms H’s reports and perhaps with the assistance of the Independent Children’s Lawyer have taken on board what has been recommended.
For the father who has never had to go to through the gauntlet of psychiatrists, psychologists, counsellors as the mother has had this is an experience he has taken on board. He has seen a Mr J who is a very experienced psychologist in this area and the father stands up in court today and tells me he is really learning a lot already in the few sessions he has had.
From reading Ms H’s reports, speaking to Mr J he now has put in place strategies to assist his daughter: making her bedroom more comfortable, leaving the night light on, and listening to her wishes about dogs, giving her more hugs and cuddles, talking positively about her mother, trying to allay her fears. The father says, and I accept, that the longer his daughter stays in his care the more her anxiety reduces.
This child was having great difficulty transitioning from her mum to her dad. She was having to do it one, two, three, four, five times a fortnight in very difficult circumstances. Her mum was stressed about the child’s reaction when she came home from the father and when she was going to the father. The father was stressed about the child’s reaction in his care and this little girl was really coping it.
The mother has taken on board what Ms H has said and although Ms H wanted the mother to go back and see Dr G, a psychiatrist, the mother had seen in the past when she was suffering from particular issues in her emotional psychological functioning, I accept the mother’s position that she wishes now to see a psychologist. The mother is agreeable to the Independent Children’s Lawyer providing to her psychologist all the documents, reports, notes, clinical notes that Dr G has prepared and the ICL Ms Solomon is aware of what the mother’s past history is. The mother also agrees that if her psychologist believes she needs a referral to a psychiatrist it will be to Dr G.
The mother and father are each seeing psychologists specialised in this area and that’s very much to their credit because the mother was implacably opposed to it previously and today she has come to court not only agreeing to seeing a psychologist but also to Dr G’s notes being provided to that psychologist.
The parents have come to agreement on almost everything. There are a few remaining issues for me to determine, narrow but important. Perhaps the most substantial issue is [X] beginning to spend time with her dad three nights a fortnight in a row from after school Friday to Monday.
Otherwise it would appear that the parents have agreed on who is to hold passports, Christmas Day, when half school holidays start at Christmas one week, two week break up of time. I have to congratulate the parents for taking on board the opinions of the experts, listening to what they have been told and really focusing on their daughter because that is the only focus I have. That is my task as a judge. I cannot focus on the parents as much as they might want me to I can only focus on their daughter, that is my job.
I have read the two family reports. The father’s document called amended application in case which is a response to the mother’s material seeking to move to the Region 1 of New South Wales which she withdrew yesterday. Those two affidavits are probably the ones I have read the most of. I have read Dr G’s reports and Ms K’s reports. These two updated affidavits focus for me what the issues have been.
The father has shown in his most recent document that he now understands his daughter is a separate person to the mother and that the mother’s functioning may impact upon his daughter and it must because they are close, but that his daughter herself has her own needs and he is addressing them and this is not some control by the mother or some impost the mother is putting on him. This is actually who his daughter is.
I think Ms H described her as an artistic, sensitive girly girl, words to that effect, and that is who this little girl is and that is the child that the father now as I read his material accepts is his daughter and he will do his utmost to ensure her anxieties are decreased. Not only does her mother not like seeing the child upset and anxious and coming home and being distressed neither does the father.
Going to the matters that I think are in dispute which really is the three nights in a row. Ms H said if [X] herself was anxious about being with her dad and that dad is putting in place the strategies I accept he is, her time should extend with her father immediately.
If there was some other event happening causing these anxieties or her anxiety was dependent upon the mother’s functioning we might need to wait until the mother was hopefully is assisted by a psychologist.
I have formed the view that this child’s anxiety is her own anxiety because Ms H said that [X] herself was quite impressive in the February report. She gave her own reasons independent of the mother of what was causing her concern in her father’s home. Her father is addressing those issues and maybe has to address them more but he is on his way. These are clearly then, as I see it, [X]’s anxieties. As such I accept what Ms H says that the time with her dad should start to extend now and not be delayed.
There is also the point raised by the father the Wednesday night time is to cease and that [X] will by these orders spend a lengthy periods of time in her dad’s care not short periods. I accept what her father says the longer she is with him the calmer she becomes.
The orders will be changed to collection from school and delivery to school not an independent place which for [X] had some real troubled history. As the Independent Children’s Lawyer submitted we are starting a new regime of time. It is important [X] knows her concerns have been listened to that she is not going back to the old changeover place, it is not the old regime of time, Dad is putting in place strategies, mum and dad have agreed on these matters and that the extended time with her father should start sooner rather than later.
I have formed this view for the following:
The parents have agreed that the mother will have sole parental responsibility. The reason for that is these parents simply cannot communicate about these issues. Whichever parent she primarily lives with must have that responsibility, but there are conditions in the orders that the father is to be notified of these decisions.
That presumption having been rebutted I need not consider an order for equal time or significant and substantial time and, quite frankly, both are contraindicated on the evidence of working because the parents cannot communicate. It is not practical, not realistic, not in the child’s best interest for such time orders.
I accept [X] will benefit from a strong relationship with her father. He has much to offer her as Ms H says in both her February report and the July report. [X]’s father shows her a different way of life and exposes her to a different way of living to that which her mother does and this is all to the benefit of creating a resilient child, a child who can deal with change and what life throws up at us.
Her father is taking on board what is being said and he is as equally important to [X] and her proper emotional and psychological functioning as is her mother. I note that the father understands how important it is that he supports [X]’s relationship with her mother. That this is essential in order for him to have the best possible relationship he can with his daughter in light of the mother’s functioning.
I formed the view that the position put forward by the Independent Children’s Lawyer and adopted by the father of three nights each fortnight commencing as soon as possible is an order in this child’s best interests. It promotes for her the benefit of a meaningful relationship she receives from her father and her mother. It protects her by way of the orders going from school to school from any further harm by her parents being together and behaving badly or she being anxious about being transferred between them. It takes account of her wishes which were that her dad did some things and she was able to transition to her dad’s care. It provides for her father to be involved in her education. Both these parents can support her education, have the capacity to do that. It does not effectively change her usual care regime of time but makes it a better time for her because it is one lengthy period of time which is preferable at this age rather than the shorter periods of time which for younger children is appropriate.
Therefore, those orders I will be making are:
That the child [X] born …2004 spend time with her father commencing 20 September 2013 each alternate Friday from the conclusion of school to the commencement of school the following Monday morning and to continue each alternate week thereafter.
The father’s time with the child to extend to 5 pm Monday if Monday is a public holiday.
Now, the orders that are made by agreement are also made.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 26 October 2018
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