Read and Doolan

[2013] FamCA 899

FAMILY COURT OF AUSTRALIA

READ & DOOLAN [2013] FamCA 899

FAMILY LAW – CHILDREN – Final Orders – where the majority of issues were resolved by consent between the parties – where three discrete issues remain to be determined by the Court – best interests – no orders made changing the child’s surname – orders made specifying the handover location – orders made for notice and makeup time where the child is unable to spend time with the father if she is unwell.

Family Law Act 1975 (Cth)

Chapman & Palmer (1978) FLC 90-510
Beach and Stemmler (1979) FLC 90-692

APPLICANT: Mr Read

RESPONDENT: Ms Doolan

INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

FILE NUMBER: MLC 8887 of 2011

DATE DELIVERED: 20 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 18 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Applicant in Person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Respondent in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiener

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones and Lee

Orders

1. That order 2 of the Response of the mother filed 20 September 2013 is dismissed.

2. Commencing Sunday 5 January 2014 and each alternate Sunday  (until the child shall turn 4 years of age), and thereafter to facilitate all time spent between the father and the child, the handover shall occur at such place or in such manner as the parties may agree but failing agreement at the MacDonald’s Restaurant on B Street, C Town.

1. In the event the child is unwell, the mother shall provide the father with a minimum of 2 hours’ notice by SMS text message and within 7 days of such advice shall provide the father with a copy of a medical certificate which provides detail of the nature of the medical condition preventing the child spending time with the father.

2. In the event that the child misses time with the father due to the child’s illness for two consecutive periods, the mother will provide make-up time to the father on the Saturday of the following weekend (providing it is a weekend in which the father would not normally spend time with the child), from 10am to 4pm.

3. That the appointment of the Independent Children’s Lawyer be discharged.

4. All matters be removed from the active list of cases.

5. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Read & Doolan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8887 of 2011

Mr Read

Applicant

And

Ms Doolan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The proceedings are commenced with the Initiating Application of the father filed in the Federal Magistrates Court on 30 September 2011 seeking orders that he spend time with D born in 2010 (“the child”).  The child resided with and continued to reside with the mother.  The father subsequently amended the orders sought which were ultimately reflected in the Further Amended Initiating Application filed in the Family Court on 7 October 2013.  The current orders sought by the father were the subject of more extensive detail than in the original application filed, but in a general sense the thrust of the application is the same and that is that the said child shall spend time with him on a gradually increasing basis taking into account the age of the child and certain significant developmental issues recognised by each of the parties.

2. By Response of the mother filed 7 November 2011 she sought that the child live with her, that she would have the sole parental responsibility and that any time that the child would spend with the father would be the subject of supervision at a Children’s Contact Centre.

3. Initially, the parties were therefore polarised in terms of their respective position as to the time that the child should spend with the father.

4. Following trial directions the mother filed a response on 20 September 2013 which represented a substantial change in her position.  She no longer sought that any time that the child would spend with the father should be the subject of strict supervision and notwithstanding a difference in timing; the orders sought by the mother would result in the father spending regular and significant time with the child.  The orders sought by each of the parties as represented by their amended application and response whilst not the same nonetheless were supportive of a position that the child should spend regular time with her father on an increasing basis.

5. The parties were self-represented.  The Independent Children’s Lawyer (“ICL”) was represented by counsel.   A case outline document was filed on behalf of the ICL and whilst qualified, under the heading of “Preliminary view of the Independent Children’s Lawyer”, the orders considered by the ICL to be appropriate (without at that stage hearing any evidence or submissions) were not substantially different in terms of the time that the child should spend with the father to that sought by each of the parties.

6. At the commencement of the trial counsel for the ICL requested some time for the parties to consider whether any agreement could be reached which might see all or at the very least a substantive part of the proceedings reduced to a consent order.

7. It was apparent that there existed a reasonable foundation for optimism that some of the outstanding issues at least could be resolved as between the parties and the ICL.

8. The parties returned to Court later in the morning and I was advised that a settlement had been reached in relation to most, but not all, outstanding issues.

9. At 2.15pm on the first day of trial I was presented with a signed minute of order which resolved many of the outstanding issues.

10. As anticipated the proposed consent order was really a consideration of issues raised by each of the parties and the ICL.  Perhaps not surprisingly, the proposed orders provided for a graduated increase in the time that the child would spend with the father and also made detailed provision for a raft of ancillary orders that would assist in the co-operative parenting of the child by the parties.

11. As foreshadowed, whilst the agreed position was significant in its scope, it did not resolve all outstanding matters.  The following issues remained for determination:-

    (1)Order 2 of the mother’s response file 20 September 2013 namely “the child shall hereafter be known as [D DOOLAN] born … 2010” and the mother shall be permitted to change the child’s name and seek the issue of a new birth certificate from the Registry of Birth Deaths and Marriages.

    (2)An order in terms of order 7 of the further amended application of the father namely that “changeovers occur at a midway point as agreed between the parties and failing agreement at the MacDonald’s at B Street, C Town, or in the alternative the father collect the child from E Town at the commencement of time and the mother and/or agent shall collect the child from the father’s home at the conclusion of time.

    (3)An order in terms of orders 8 and 9 of the father’s further amended initiating application namely that “in the event that the child is unwell the mother shall provide the father with a minimum of 2 hours’ notice by text message and shall provide the father with a copy of the child’s medical certificate forthwith; and in the event the child misses time with the father due to the child’s illness, the mother will provide makeup time the following weekend”.

12. Accordingly, there remained three issues for determination:-

    ·An application to change the child’s surname from Read to Doolan

    ·That handover take place other than the current location being the E Town Police Station

    ·Arrangements for the suspension of time spent with the father in circumstances where the child is unwell and whether there should be makeup time in such event.

13. The parties remained in dispute in relation to the name change and the venue for handover, but the mother was prepared to accept that if the child is unwell and not able to attend to spend time with the father then it was proper that there be notice given to the father in a timely fashion and that he be given the courtesy of a medical certificate detailing the health considerations that impact the child.  The parties were not in agreement that in the event that the child was not able to spend time with her father there would then be makeup time on the following weekend.

14. The trial proceeded then on a limited and narrow suite of issues and given that the affidavit material was not necessarily directed to the issues that remained in dispute, I gave leave to the mother and the father to give their evidence orally.  The parties cross examined each other and were the subject of cross examination by the ICL.

15. The preliminary submissions of counsel for the ICL can be summarised as follows:-

    (1)The ICL did not support a change in the child’s surname;

    (2)The ICL did support a more equitable arrangement for handover and on the assumption that C Town is approximately a midway point, and was prepared to support the father’s application;

    (3)The ICL was supportive of notice being given to the father if the child was unwell and therefore unable to attend pursuant to the orders and that in those circumstances a medical certificate should be provided.  The ICL was equivocal in terms as whether there should be makeup time.

DOCUMENTS RELIED UPON

1. The mother relied upon the following documents:-

   ·    Response filed 20 September 2013

   ·    Trial affidavit filed 19 September 2013

2. The father relied upon the following documents:-

   ·    Further amended initiating application filed 7 October 2013

   ·    Trial affidavit of father filed 27 August 2013

   ·    Affidavit in reply to trial affidavit of the mother filed 7 October 2013

3. The documents relied upon by the ICL comprise and affidavit of Mr F filed 12 June 2013 which contains a psycho-sexual report dated 18 February 2013 in relation to the father and a psychological evaluation of the mother dated 3 April 2013.  The ICL also relies upon a Family Report completed by Ms G dated 6 August 2012.

SHORT HISTORY

1. ...73 - date of birth of father

   ...84 - date of birth of mother

   2003-2006 – parties either commence a relationship and/or commence cohabitation

   October 2009 mother alleges rape by the father

   ….2013 – date of birth of D READ

   August – November 2010 – parties separate initially under the same roof but then physically separate

   30.9.2011 – proceedings are commenced by the father filing an initiating application

BACKGROUND

1. Each of the parties filed comprehensive affidavit material.  As noted, there is little that is the subject of agreement.  The father asserts that he and the mother were in a relationship from 2003 until 2010.  The mother considers that they commenced their relationship in late 2005 or early 2006.

2. Following separation the father alleges that he tried on numerous occasions to see and spend time with the child but was met with a trenchant refusal by the mother and it was only after orders were made in the Federal Magistrates Court (as it then was), that he commenced supervised time with the child on 30 October 2011.

3. The father acknowledges that the relationship was at times torrid and they would engage in frequent heated arguments.  Specifically, the father denies any allegation of physical assault towards the mother.  The mother however alleges that there was domestic violence perpetrated towards her and that arising out of the overarching jealousy of the father, he was obsessive, controlling and aggressive towards her.  The mother alleges that she was the subject of a rape by the father.  This assault is denied.

4. There appears to be an acknowledgement that the parties used offensive and abusive language to each other, but the mother alleges that the father was sexually aggressive and inappropriate. 

5. The father denies the mother’s allegations but states that it was the mother’s aggression and irrational and unpredictable behaviour which was at least in part a contributing factor to their increasingly dysfunctional relationship.

6. The father considers that following their separation the mother deliberately did not allow the father to spend time with the child, whereas the mother asserts that the father’s history of aggression, violence, drug use and his allegedly inappropriate sexual conduct presented a risk to the child.

7. The child has a significant developmental delay and this affects her day to day functioning.  There is some significant improvement but the mother’s assessment (based upon the child’s involvement with a range of child health professionals) is an assessment that she has an emotional behavioural and physical developmental level of a 20 – 24 months old child.  The mother follows a strict routine as developed and recommended by the child’s health professionals.

8. The father does not disagree that there are issues affecting the development of the child, but his position is that he is able to adequately and properly parent and look after the child even for relatively extended periods.

9. The relationship between the mother and the father is poor and much of the position adopted by the parties and their ability to reach overall agreement is more a matter of their personal animosity rather than any considered position based upon the needs of the child.

10. The mother has re-partnered and is planning to marry Mr H.  Mr H and the mother have a daughter namely J born in 2013.  J resides with Mr H, the mother and D.

11. Mr H however has seven children from a previous relationship ranging in age from four years to adult age.  The younger children spend time with Mr H on an each alternate weekend basis.  It is very much a part of the mother’s case that whilst she concedes, albeit reluctantly, that the child should spend time with the father, she wants to ensure that the time that the child spends in the mother’s care coincides with the time that Mr H spends with his other children.

12. As discussed, there exists allegation and counter allegation between the parties.  It is unlikely that the parties will resolve their differences in terms of their dislike for each other and whilst this is reflected in their almost total inability to communicate effectively with each other, it is at least encouraging that they both agree that SMS text messaging is a viable mode of communication and whilst it was not cited by the Court, the parties have adopted the practice of a communication book which travels with the child.

13. There appears to be a good relationship between the father and the child.  The father has had significant involvement with the E Town Children’s Contact Service and whilst he complains that the mother has been arbitrary with the provision of the child and the mother counters with a list of the dates upon which the father has cancelled his time, nonetheless there has been sufficient experience at the Centre that reports of the observed time have been prepared and form annexure “HRM” to the father’s trial affidavit.  I do not propose to consider those reports in detail, but for the purposes of the limited scope of matters to be resolved I am satisfied that the father behaves appropriately with the child, that there is a good and loving relationship between them and that the father has insight into the difficult and at times distressed behaviour demonstrated by the child arising from her developmental delay.

Reports Dr F

1. The father was the subject of psychological and psycho-sexual evaluation.  I do not propose to repeat in detail issues that are discussed in the report dated 18 February 2013.  Because of the substantial agreement reached by the parties, Dr F was not called.  The conclusion of Dr F is instructive:-

   33.In the sexual domain, despite the risk factors associated with childhood sexual abuse, there is no evidence of sexual offending.  The rsvp highlights the more general mental health, substance abuse and psychological issues identified in this report.

   The central risk factors with [Mr Read], in my opinion, relate to potential for substance abuse, problematic and conflictual relationships and vulnerability to violence.

   37. The results do not exclude [Mr Read] spending time with his child on a regular basis, however, I would suggest intervention that should go along with that time in order to reduce the risk factor outlined.  To deal with substance abuse issues, he should undertake at least twelve months of substance abuse counselling with an appropriate agency.  To reduce the sexual abuse issues and related family problems, he should be referred to a clinical psychologist with expertise in this area and have approximately 12-15 sessions over the next 12 months to address these issues.  Additionally, there should be intervention to assist him in the area of communication skills and parenting and a family type agency such as Child and Family Services in [E Town], would be appropriate for him.

   38. Based on the rsvp, he was assessed as constituting a low-moderate risk of sexual offending.  He presents as stable in other more general ways and is currently caring for his 17 year old son and is partially employed.         

2. In relation to the mother the following conclusions are relevant:-

   22. [Ms Doolan] herself is a woman who with personality difficulties, with vulnerability to depression and a tendency to enter problematic relationships and this may well include the relationship with her ex-partner, although it is difficult in this matter to obtain any objective evidence about the nature of her relationship.  Despite [Ms Doolan’s] account of the relationship and her own alleged psychological difficulties in the context of this relationship, I have not been in a position of determining objective information regarding the relationship.

   23. Moreover, [Ms Doolan’s] account raises concerns about the voracity of her statements.  There are her own submissions that having her child spend time with the father is difficult for her, because of her own negative feelings about the relationship.  As such, this lack of resolution raises questions about the allegations made, while not excluding the possibility that such events have occurred.

   24. Nevertheless, based on this evaluation, [Ms Doolan] presented as a person with personality difficulties, with vulnerability to depression, without evidence of a formal disorder.

3. Dr F also raises “the possibility that the allegations made are strategic, rather than based in fact.”

4. In terms of the mother’s ability to care for the child, he finds that there are no practical factors that raise any issue or concern as to her ongoing parenting.  To the extent that there are any significant factors, these arise out of relationship issues rather than her own ability to protect and care for the child.

5. Accordingly, the substantive orders the subject of agreement between the parties and as represented by the consent orders made appear consistent with the issues that affect the child and the parties, bring to account substantial recommendations by Dr F and are supported by the ICL.  In all the circumstances the orders made by consent are in the best interest of the child.

Outstanding Issues

1. The affidavit material of the parties other than by oblique reference are silent as to the matters that the Court needs to decide.

1. The parties were given leave to adduce further evidence in chief and each had the opportunity to cross examine the other but both were the subject of cross examination by counsel for the ICL.

2. To the extent that I am able safely to do so, I draw on evidence that would appear to be not controversial emanating from the affidavit material of the parties and the documents relied upon by the ICL, in particular Dr F and his reports as to the psychological and psycho-sexual evaluation of the mother and the father.

Change of Name

1. The mother seeks to change the child’s surname from D READ (the father’s surname) to D DOOLAN (the mother’s surname).

2. It is not a matter for the Court to make an order that changes the child’s name, but rather that would enable the mother to make application to the Registrar of Births Deaths and Marriages in the State of Victoria and whilst not sought, an order would be required that would cause the father to co-operate with the process and sign such documents as may be necessary to give effect to a name change if so ordered.

3. The father does not seek an injunction restraining the mother from having the child known as “Doolan” instead of “Read”.  As part of the oral evidence of the mother, she admitted that there were numerous circumstances where she has simply adopted her surname for the child rather than the name that appears on the birth certificate namely “Read”.

4. The mother was asked why she wished to have the child’s name changed to her own.  Her response was clear and unambiguous.  Her dislike for the father is such that she considers it to be an ongoing method of control that the child carries his surname and it is a reminder to her of his alleged behaviour during the course of their relationship.  I am not satisfied that the primary reason has anything to do with matters that would impact directly on the child.

5. The mother also gave evidence that she and Mr H are likely to be married within the next 12 months.  She intends to adopt his surname namely H.  In that eventuality, if the Court acceded to the orders sought by the mother the child would bear the surname Doolan in circumstances where there would be no other person in the household of either the mother or the father who bore that surname.

6. When this was put to the mother, her clear response was that it would be a better outcome for the child to have her surname even though she no longer would use that name than to continue to hold the father’s surname which would be a source of personal distress to the mother.

7. In the early leading case of Chapman & Palmer (1978) FLC 90-510 the Full Court said:-

   In deciding the issue in each case there is no onus of proof.  It is for the Court to balance in its’ discretion the factors for and against change.  The guiding principle is that the welfare of the child is the paramount consideration.  It must stand above the wishes of proprietary interests of the parents. 

8. Whilst the Court referred to the paramount consideration as being the guiding principle, the child’s best interests will be of significant importance even if not paramount.  In the decision of Beach and Stemmler (1979) FLC 90-692 the Court considered the following factors, whilst not exhaustive, to at least be a reasonable starting point:-

   ·The long and short term advantages if the child’s name changes or remains as it is

   ·The extent to which the parties will spend time with the child

   ·The degree of identification that the child now has with the father, mother and mother’s current family

   ·Any confusion that is likely to be caused by a change in name to the child.

   ·Whether the desire to change the child’s name is motivated by good and proper reason or if it is simply a matter of the mother’s mere desire.

9. It is a reasonable proposition that a child should be protected from any confusion as to identity.  The actions of the mother in using her surname “Doolan” in respect of the child is motivated by her dislike for the father but not arising from any properly considered basis.  Upon the asserted certainty of her marriage to Mr H, the mother will take his name.  That would leave the child in the mother’s household with a surname different to the other occupants.  The mother’s preference is that the child’s surname be “Doolan” rather than “Read”.  That is notwithstanding that in the mother’s household the child would not be able to identify with any person.

10. By leaving the child’s surname unchanged there is at least an appropriate connection with the father.

11. In the absence of any cogent reason to allow a change of the child’s surname I propose to do no more than dismiss the orders sought by the mother in relation to the name change.  The father has not sought an injunction restraining the mother from having the child known by her surname and the father is free to bring whatever application he considers necessary should the mother persist in the child being known by a surname different to that which appears on the birth certificate.

Handover

1. At present handover takes place at the E Town Police Station.  The mother resides in a suburb of E Town and the arrangements are significantly more convenient to her than the father.  He resides in K Town which is a distance of a little more than 100 kilometres from E Town with a travelling time of about 1 hour and 15 minutes each way.

2. Not surprisingly the father seeks to change the handover arrangements either to a place as may be agreed between the parties but failing agreement then at C Town which is about equal distance between E Town and K Town.  The father also proposes that in the alternative he should collect the child from the mother’s home at the commencement of his time and the mother should attend upon his home at the conclusion of time.

3. The mother is opposed to the father’s application.  The principle concern appears to be financially based.  In summary, the mother asserts that she does not have the money to be able to afford the petrol to enable handover to take place anywhere else other than in E Town.

4. I accept that the mother’s financial position is parlous.  The father however has offered to contribute towards the mother’s petrol money in the sum of about twenty dollars.  This offer was not accepted by the mother. The Police Station is not a preferred handover venue.

5. The mother refers to the need for time spent to occur in a Police Station.  A practice has developed of a recent date where the handover is conducted by an agent of the mother.  The mother therefore does not usually come into physical contact with the father and accordingly, there should be no issue of alleged threatening behaviour by the father being a concern to the mother.

6. The father quite properly contends that he bears the brunt of the travelling necessary to give effect to the agreement now reached between the parties.

7. The father further submits that at present he bears the entirety of the travel arrangements.  Not only is he required to leave his home more than an hour prior to the commencement of his time with the child to enable him to reach E Town, but that the time that he now spends with the child is effectively reduced in its’ quality by travelling for more than an hour following the handover and then, leading up to the return of the child to the mother’s care.

8. I consider that the travel arrangements are onerous to the father if he is obliged to undertake all travel.

9. When the time that the child spends with the father moves to overnight on an each alternate weekend basis, the issue is not quite as critical as it is in respect of the operation of the orders leading up to date where each alternate weekend the father spends time with the child on a Saturday and then Sunday.

10. Accordingly, I have attempted to frame the order that allows the current arrangement to stay in place by way of a settling in or lead in time, that it is reasonable for the father to undertake all of the travel for one of the days on the alternate weekend rotation, but the mother should participate in at least some of the travel and handover arrangements on one of the days each alternate weekend, but that once the child commences spending significant time with the father over the entirety of the weekend as and from July 2013 it is reasonable for the parties to share the burden.

Suspension of time if child is unwell

1. As noted, the mother does not object to the provision of 2 hours’ notice by SMS text message if the child is too unwell to spend time with the father and in those circumstances the mother agrees that it would be appropriate for her to obtain a medical certificate and/or report and provide same to the father.  She does cavil with a proposed order that any time missed shall be made up with the father on the next available weekend.

2. Taking into account the age of the child and noting that if there is a missed weekend then the father will not spend time with the child for a period of more than one month, I consider it important that there be at least some replacement time of which the father can avail himself.  Accordingly, whilst it would be difficult to replace an entire weekend by way of makeup time in the sense that if this occurs on a weekend that the child would normally spend with her mother this could impact upon the family dynamics in the mother’s home and in particular the relationship with the children of Mr H.

3. In all the circumstances, I consider that there should be makeup time but it should be of a limited nature and occur in circumstances where the father misses two consecutive period of time with his daughter due to her ill health.

CONCLUSION

1. For the reasons as provided for herein I make orders as set out at the commencement of these reasons.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 November 2013.

Associate:

Date:  20 November 2013