Ritchie and Hector
[2009] FMCAfam 542
•5 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RITCHIE & HECTOR | [2009] FMCAfam 542 |
| FAMILY LAW – Parenting – significant and substantial time – young child – parents’ dysfunctional relationship post separation – need for the child to spend time with both parents – need to protect the child from the other parent’s negative personality traits. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60DAA(3) |
| Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MR RITCHIE |
| Respondent: | MS HECTOR |
| File Number: | SYC 912 of 2008 |
| Judgment of: | Dunkley FM |
| Hearing dates: | 1, 2 & 3 December 2008, 6 March 2009 |
| Date of Last Submission: | 28 March 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 5 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Ian G. Bullock Solicitor |
| Counsel for the Respondent: | Ms Knox |
| Solicitors for the Respondent: | Diana Perla & Associates |
| Counsel for the Independent Children’s Lawyers: | Ms Clifford |
| Solicitors for the Independent Children’s Lawyers: | Legal Aid NSW, Bankstown Office |
ORDERS
That all previous parenting orders be discharged.
That the mother and father have equal shared parental responsibility for [X] born in 2007.
That [X] live with the father as follows:
(a)From the date of these Orders for a period of 6 weeks in a two weekly pattern each alternate week from 5.00pm Thursday to 5.00pm Sunday commencing 11 June 2009 and in the alternate week from 5.00pm Tuesday to 5.00pm Thursday commencing 16 June 2009.
(b)From the end of the 6 week period in Order 3(a), in the same two weekly pattern each alternate week from 7.30am Thursday to 5.00pm Sunday and in the alternate week from 7.30am Tuesday to 5.00pm Thursday.
(c)Prior to [X] starting school for 4 periods of 1 week each in 2010 and 2011, the father to give the mother 28 days written notice of his intention to spend such time with [X].
(d)Upon [X] starting school, for one half of all school holiday periods at times as agreed between the parents, and if no agreement for the first half of the school holidays in years ending in an odd number and for the second half of the school holidays in years ending in an even number.
(e)From 9.00am to 5.00pm on Father’s Day.
(f)On [X]’s birthday from 4.00pm to 7.00pm, in the event that [X] is with the mother on that day.
(g)On [the father’s birthday] from 4.00pm to 7.00pm, in the event that [X] is with the mother on that day.
(h)At other times as agreed between the parents in writing.
That [X] live with the mother at all other times.
That Order 3(b) is suspended during the time [X] spends with the father in accordance with order 3(c); that Order 3(b) is suspended during all school holiday periods beginning in 2012.
That orders 3(b) and 3(d) are suspended during Jewish holidays as set out in order 9.
In the event that [X] is with his father on any of the following occasions, that [X]’s time with his father in accordance with these Orders is suspended:
(a)On Mother’s Day from 9.00am to 5.00pm.
(b)On [X]’s birthday from 4.00pm to 7.00pm.
(c)On [the mother’s birthday] from 4.00pm to 7.00pm.
(d)
From 5.00pm on the day before the mother’s wedding day to
Mr C until 9.00am the morning after the wedding, the mother to give the father 28 days written notice of the wedding date if this is a period of time that [X] would normally be with the father.
(e)For 2 periods of 2 weeks each in 2010 and 2011, the mother to give the father 28 days written notice of her intention to spend such time with [X].
(f)From 2012 for one half of each school holiday period, being the half not exercised by the father pursuant to Order 3(d).
Unless otherwise agreed between the parties in writing, the father (or his nominee) is to collect [X] from the mother’s residence, day care centre or school at the commencement of the times [X] is to be in his care in accordance with these Orders and the mother to collect [X] from the father’s residence, day care centre or school at the conclusion of the times [X] is to be in his father’s care in accordance with these Orders.
That [X] celebrate the following Jewish holidays as follows:
(a)During the festivals of Pesach (Passover) and Succot (including Shemini Atzeret and Shimchat Torah) for the first 2 days with the mother and for the last 2 days with the father in years ending in an odd number and with the father for the first 2 days and with the mother for the last 2 days in years ending in an even number.
(b)During the festival of Rosh Hashana for the whole of the time with the mother in years ending in an odd number and for the whole of the time with the father in years ending in an even number.
(c)During the festivals of Shavout and Yom Kippur for the whole of the time with the father in years ending in an odd number and for the whole of the time with the mother in years ending in an even number.
That the mother and father do all acts and things to ensure that at first instance [X], when requiring medical attention, is taken to [W] centre, except in cases of emergency.
That the mother and father are hereby restrained by injunction from:
(a)Subject to order 12, from enrolling [X] in any pre school, school, day care centre or after school activity without first giving the other parent 28 days notice of their intention to do so.
(b)Denigrating each other in the presence or hearing of [X].
That [X] be enrolled in day care at [B] Day Care Centre (formerly known as [K]) for 2009 and 2010.
Upon [X] starting school, that the mother and father be able to travel overseas with [X] on one occasion each in any 12 month calendar period for no greater than 21 days upon the travelling parent giving the non travelling parent 28 days notice of their intention to do so, such notice to include a copy of the paid airline ticket and itinerary for the trip.
That the mother and father do all acts and things so as to communicate with each other by way of SMS text message or email communication in relation to keeping the other parent informed about important issues relating to [X]’s health, education and well-being.
That within 7 days of any change to either parents’ home address or landline telephone number or mobile telephone number, that each parent do all acts and things to notify the other parent of any such change.
That the mother and father, during all periods of school holiday time during which time they travel with [X] do the following:
(a)Provide to the other parent not less than 14 days prior to travel, a written itinerary of where [X] will be travelling to and staying, as well as contact details of the places [X] will be staying.
(b)Facilitate [X]’s communication with the other parent by ensuring that [X] telephones the non travelling parent at a minimum on each Wednesday between 6.00pm and 6.30pm.
IT IS NOTED that publication of this judgment under the pseudonym Ritchie & Hector is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
SYC 912 of 2008
| MR RITCHIE |
Applicant
And
| MS HECTOR |
Respondent
REASONS FOR JUDGMENT
These are proceedings pursuant to Part VII of Family Law Act 1975 relating to the child [X] born in 2007.
[X]’s parents have an extremely dysfunctional post-separation relationship.
Each of the mother and father have personality traits that exacerbate their conflicted post-separation relationship. Each draws out the worst in each other. The mother is domineering. Her style of communication is argumentative and haranguing. The father is aloof, self-focused and uncommunicative. Their oral evidence before the Court re-affirmed the existence of these traits and confirmed the view of family consultant, Dr Christopher Lennings, that [X] was so effected by the negative personality traits of each of his parents in the different households that he needed to spend significant time with each of his parents so that those periods could act as an antidote to the negative experience he would have in the other parents household.
There is no doubt that unless the parents seek out and receive professional assistance and modify their behaviour that [X]’s long term future will be compromised.
Chronology
1968 – Ms Hector (“the mother”) born.
1971 – Mr Ritchie (“the father”) born.
1974 – Mr C, the mother’s partner, born.
2002 – the mother and father marry.
2007 – [X] (“the child”) born.
7 October 2007 – mother and father separate. The father leaves the matrimonial home and commences living with his parents. Shortly thereafter the father’s pattern of spending time with [X] becomes Tuesday and Thursday from 4.30 to 7pm, with a 24 hour overnight period in week 1 from Friday evening to Saturday evening, and in week 2 from Saturday evening to Sunday evening.
4 December 2009 – the parties divorce.
Documents
Initiating Application filed by the father on 15 February 2008.
Affidavit of Mr Ritchie sworn 21 November 2008.
Affidavit of Ms R sworn 21 November 2008.
Amended response filed by the mother 21 November 2008.
Affidavit of Ms Hector sworn 21 November 2008.
Affidavit of Mr C sworn 21 November 2008.
Affidavit of Mr P affirmed 24 February 2009.
Family Report by Dr Christopher Lennings dated 3 August 2008.
Orders sought by the parties
At the commencement of the proceedings the father was seeking the following Orders:
2)That the father and mother have equal shared parental responsibility for the child of the marriage [X] born in 2007.
3)That [X] live with the father from 1pm Wednesday to 5pm Sunday commencing 10 December 2008 an each alternate week thereafter, subject to orders 6-11.
4)That [X] live with the father from 1pm Wednesday to 12 noon Friday commencing 17 December 2008 and each alternate week thereafter subject to Order 6-11.
5)That each of the parties be restrained from relocating [X]’s residence and school outside a 10km radius of [R] police Station.
6)That both parties do all things necessary to permit the application and issuing of an Australian Passport for [X] born in 2007, and upon the issue of such passport that the passport be held by the Registrar of the Family Court at Sydney subject to release to either party for the limited period of overseas holidays, provided that 28 days written notice of an intention to apply to release [X]’s passport is given.
7)That from when he starts school the child shall live with each parent for half of each school holiday period alternating between the father for the first half in each school holiday period alternating between the father for the first half in each odd numbered year and for the second half in each even numbered year.
8)That the father collect the child from the mother’s residence if the child is not attending school at the start of the time the child lives with him, otherwise the father shall collect the child from his school and the mother shall collect the child from the father’s residence at the start of the time the child lives with her.
9)That [X] shall spend time with each parent on [his birthday] as follows:
a)If [X] is not attending school then from 4.00pm to 7.00pm with the parent he is not living with on that day.
b)If [X] is attending school then from after school to 7.00pm with the parent he is not living with on that day.
10)That if [X] is not living with the father on [the father’s birthday] then [X] shall spend time with the father as follows:
a)If [X] is not attending school then from 4.00pm to 7.00pm.
b)If [X] is attending school then from after school to 7.00pm.
11)That if [X] is not living with the mother on [the mother’s birthday] then [X] shall spend time with the mother as follows:
a)If [X] is not attending school then from 4.00pm to 7.00pm.
b)If [X] is attending school then from after school to 7.00pm.
12)That [X] spend time with each parent on Jewish festival days in accordance with the schedule hereto in 2008 (schedule was attached) PROVIDED THAT the parent caring for [X] shall be reversed in each consecutive year thereafter.
13)That each parent be restrained from:
a)Enrolling the child in any activity and/or facility
b)Having the child undergo any medical treatment and/or procedure
c)Changing the child’s diet and/or medication
without the consent in writing of the other parent except in case of an emergency when the other parent is uncontactable.
14)That each parent shall notify the other parent as soon as practicable if the child requires any emergency medical treatment and/or hospitalisation.
15)That each parent provide the other parent with copies of all documents received by him or her relating to the child’s health.
16)That each parent notify the other parent of all appointment made for the child with any health professional and the reasons for such appointments not less than 24 hours prior to such appointments.
17)That each parent shall, at the end of each period the child lives with him or her, give to the other parent a written summary of the child’s routine as well as any eating, sleeping, behavioural or health problems during the time the child has lived with him or her.
At the commencement of the hearing the mother sought Orders in accordance with her Amended Response filed 21 November 2008. By the close of the hearing the mother was seeking Orders as per a minute of Order that became exhibit 15, which sought the following Orders:
1)That [X] live with the mother.
2)That until the age of 3, that [X] spend time with the father as follows:
In week 1:
i)From 7.30am Tuesday until 7.30am Wednesday;
ii)From 4.30pm Friday to 5.00pm on Sunday;
In week 2:
i)From 7.30am Tuesday until 7.30am Wednesday;
ii)From 4.30pm Sunday to 7.00pm Sunday.
3)From the age of 3 to 4, as follows:
In week 1:
i)From 7.30am Tuesday until 7.30am Wednesday;
ii)From 4.30pm Friday to 7.30am on Monday;
In week 2:
i)From 7.30am Tuesday until 7.30am Wednesday;
ii)From 4.30pm Sunday to 7.00pm Sunday.
4)That [X] spend Father’s Day 10am to 5pm with the father.
5)That [X] spend from 4pm to 7pm on his birthday and the father’s birthday with the father if [X] is not otherwise with the father.
6)That [X]’s time with the father be suspended on Mother’s Day from 10.00am to 5.00pm, on [X]’s birthday and the mother’s birthday from 4.00pm to 7.00pm.
7)That each party inform the other no less than 14 days after any change to their residence of the details including address and landline telephone number.
8)That during the festivals of Pesach and Succot (including Shemini Atzeret and Simchat torah), the child shall spend the first 2 days with the mother, and the last 2 days with the father in each alternate even year starting in 2010 and with the father from the first 2 days and with the mother for the last 2 days in each alternate odd year starting in 2009.
9)That during the festival of Rosh Hashana, the child shall spend the whole of the time with the mother in each alternate year starting in 2009 and with the father in each alternate year starting 2010, and during the festivals of Shavout and Yom Kippur, the child shall spend the whole of the time with the father in each alternate year starting 2009 and with the mother in each alternate year starting 2010.
10)That the mother and father do all acts and things to ensure that at first instance [X], when requiring medical attention, is taken to [W] centre, except in cases of emergency.
11)That the mother and father are hereby restrained by injunction from:
a)Enrolling [X] in any pre school, school, day care centre or after school activity without first giving the other parent 28 days notice of their intention to do so;
b)Denigrating each other in the presence or hearing of [X].
12)That [X] be enrolled in day care at [B] Day Care Centre (formerly known as [K]) for 2009 and 2010.
13)Upon [X] starting school, that the mother and father be able to travel overseas with [X] on one occasion each in any 12 month calendar period for no greater than 21 days upon the travelling parent giving the non travelling parent 28 days notice of their intention to do so, such notice to include a copy of the paid airline ticket and itinerary for the trip.
14)That the mother and father do all acts and things so as to communicate with each other by way of SMS text message or email communication in relation to keeping the other parent informed about important issues relating to [X]’s health, education and well-being.
15)That the mother and father, during all periods of school holiday time with [X] do the following:
a)Provide to the other parent not less than 14 days prior to travel, a written itinerary of where [X] will be travelling to and staying, as well as contact details of the places [X] will be staying.
b)Facilitate [X]’s communication with the other parent by ensuring that [X] telephones the non travelling parent at a minimum on each Wednesday between 6.00pm and 6.30pm.
The Independent Children’s lawyer sought orders in accordance with Exhibit 14. Those orders were as follows:
1)That all previous parenting orders be discharged.
2)That the mother and father have equal shared parental responsibility for [X] born in 2007.
3)That [X] live with the father as follows:
a)From the date of these Orders for a period of 6 weeks in a two weekly pattern each alternate week from 5.00pm Thursday to 5.00pm Sunday and in the alternate week from 5.00pm Tuesday to 5.00pm Thursday.
b)From the end of the 6 week period in Order 3.1, in a two weekly pattern each alternate week from 7.30pm Thursday to 5.00pm Sunday and in the alternate week from 7.30am Tuesday to 5.00pm Thursday.
c)Prior to [X] starting school, for 2 periods of 1 week each in the second half of 2009 and fro 2 periods of 2 weeks each in 2010 and thereafter, the father to give the mother 28 days written notice of his intention to spend such time with [X].
d)Upon [X] starting school, for one half of all school holiday periods at times as agreed between the parents, and if no agreement for the first half of the school holidays in years ending in an odd number and for the second half of the shorted school holidays in years ending in an even number.
e)From 9.00am to 5.00pm on Father’s Day.
f)On [X]’s birthday from 4.00pm to 7.00pm, in the event that [X] is with the mother on that day.
g)On [the father’s birthday] from 4.00pm to 7.00pm, in the event that [X] is with the mother on that day.
h)At other times as agreed between the parents in writing.
4)That [X] live with the mother at all other times.
5)That Order 3.2 is suspended during the time [X] spends with the father in accordance with order 3.3 and during all school holiday periods.
6)That orders 3.2 and 3.4 are suspended during Jewish holidays as stated in order 9.
7)In the event that [X] is with his father on any of these occasions, that [X]’s time with his father in accordance with these Orders is suspended:
a)On Mother’s Day from 9.00am to 5.00pm.
b)On [X]’s birthday from 4.00pm to 7.00pm.
c)On [the mother’s birthday] from 4.00pm to 7.00pm.
d)From 5.00pm on the day before the mother’s wedding day to Mr C until 9.00am the morning after the wedding, the mother to give the father 28 days written notice of the wedding date if this is a period of time that [X] would normally be with the father.
e)For 2 periods of 1 week each in the second half of 2009 and for 2 periods of 2 weeks each in 2010 and thereafter, the mother to give the father 28 days written notice of her intention to spend such time with [X].
8)Unless otherwise agreed between the parties in writing, the father (or his nominee) to collect [X] from the mother’s residence, day care centre or school at the commencement of the times [X] is to be in his care in accordance with these Orders and the mother to collect [X] from the father’s residence, day care centre or school at the conclusion of the times [X] is to be in his father’s care in accordance with these Orders.
9)That [X] celebrate the following Jewish holidays as follows:
a)During the festivals of Pesach (Passover) and Succot (including Shemini Atzeret and Shimchat Torah) for the first 2 days with the mother and for the last 2 days with the father in years ending in an odd number and with the father for the first 2 days and with the mother for the last 2 days in years ending in an even number.
b)During the festival of Rosh Hashana for the whole of the time with the mother in years ending in an odd number and for the whole of the time with the father in years ending in an even number.
c)During the festivals of Shavout and Yom Kippur for the whole of the time with the father in years ending in an odd number and for the whole of the time with the mother in years ending in an even number.
10)That the mother and father do all acts and things to ensure that at first instance [X], when requiring medical attention, is taken to [W] centre, except in cases of emergency.
11)That the mother and father are hereby restrained by injunction from:
a)
Enrolling [X] in any pre school, school, day care centre or after school activity without first giving the other parent
28 days notice of their intention to do so.
b)Denigrating each other in the presence or hearing of [X].
12)That [X] be enrolled in day care at [B] Day Care Centre (formerly known as [K]) for 2009 and 2010.
13)Upon [X] starting school, that the mother and father be able to travel overseas with [X] on one occasion each in any 12 month calendar period for no greater than 21 days upon the travelling parent giving the non travelling parent 28 days notice of their intention to do so, such notice to include a copy of the paid airline ticket and itinerary for the trip.
14)That the mother and father do all acts and things so as to communicate with each other by way of SMS text message or email communication in relation to keeping the other parent informed about important issues relating to [X]’s health, education and well-being.
15)That within 7 days of any change to either parents’ home address or contact telephone and mobile telephone number, that each parent do all acts and things to notify the other parent of any such change.
16)That the mother and father, during all periods of school holiday time with [X] do the following:
a)Provide to the other parent not less than 14 days prior to travel, a written itinerary of where [X] will be travelling to and staying, as well as contact details of the places [X] will be staying.
b)Facilitate [X]’s communication with the other parent by ensuring that [X] telephones the non travelling parent at a minimum on each Wednesday between 6.00pm and 6.30pm.
Issues to be determined
Whether there should be a shared care arrangement.
Whether [X] should spend most of his time with his mother and some of his time with his father.
Whether Orders should be made on an interim or a final basis.
Whether a restraining order be made as to the place of living of the parties.
The trial
During the hearing the parties, the father’s mother Ms R, and the mother’s partner Mr C were cross-examined, as was Dr Lennings.
The trial was conducted in 2 parts over four days, being the 1st, 2nd and 3rd December 2008 and 6th March 2009.
Orders were made at the end of the first three days of the hearing, increasing the father’s time with the child and providing for a seven day block holiday period, and allowing the mother to take the child overseas for a three week period.
On the 6th March the mother sought to file further affidavit material relating to observations that she made of [X] principally following the child’s block time with the father in January. Leave was not granted, however oral evidence was given by the mother and her partner as to what they observed to be [X]’s behaviour after returning from his block period with his father.
The evidence
The father in his oral evidence was selective as to his memory, often claiming to be unable to recall his side of conversations with the mother but remembering hers, being evasive about certain issues for example why he felt the need to consult General practitioners regarding [X]’s health, his internet dating site profile, his report of kidnap and his living arrangements. His delivery was often defensive. He avoided all eye contact with the mother.
The mother’s evidence was often quarrelsome and haranguing in tone, and without any sincere concession as to any benefit [X] would achieve in spending time with his father.
Despite her limitations and attitude, the mother tried her best to be truthful. The father did not.
Very little turns on credit in this case, but where it does, I accept the mother’s version as opposed to the father’s.
What is clear from the evidence of the parties is that when they are in dispute with each other, which is often, they lose focus on the needs of [X]. One example of this is that they were both sitting in the waiting room at the Children’s Hospital sending texts messages to each other when the doctors treating [X] required information. Such behaviour does neither credit and simply confirms the difficult childhood that [X] will experience.
The parties use a communication book with limited success. The father conceded in cross-examination “There is almost always conflict when Ms Hector and I communicate but I think it is improving”.
The father conceded that he had consulted a psychiatrist “who was of the belief that I had difficulty relating to others and that I was narcissistic”.
The father conceded that he had refused the mother a Jewish divorce, “a Ghett”, until he was satisfied that the issues regarding [X] were going to be settled.
It was conceded, quite properly, by Counsel for the father that the parties communication was appalling during and after their marriage.
The father conceded “that he didn’t take up every opportunity to spend time with [X] offered. I wanted a total solution”.
During the cross-examination of the mother she was asked about her work patterns on a Friday. She conceded that she did work on Friday, although she preferred not to. The mother said “when I work on Friday’s [X] is cared for by my mother”. She was asked “Is that better than being with his father?” She answered “No, it is the same”.
The above is indicative of her negative attitude to the father’s relationship with the child.
The mother conceded that she did not put the father’s details on the child’s Day care enrolment form.
The mother said that she last consulted her psychiatrist in 2005.
Mr C gave evidence, “Ms Hector and Mr Ritchie have a shocking level of communication”. He also said “they have email communication and their communication is still poor”.
Both parties gave evidence that in their Jewish faith, Friday night was a culturally and religiously important evening to each of them.
In January of 1998 Dr J, the father’s consultant psychiatrist, wrote to the father’s General Practitioner:
“Mr Ritchie no longer has a significant depressive illness but has great difficulty in understanding how others perceive him…he is very obsessional and this leads to him being over involved in and over concerned by various life events”….the major theme of our sessions is Mr Ritchie’s difficulty relating to others. He often feels helpless and lonely and has no ability to judge others reactions to him. He then appears to be working purely from his own agenda and gives the appearance of being uncaring which is untrue. He has a significant narcissistic personality disorder from which he wishes to escape and become more socially acceptable”.
Dr Christopher Lennings provided a report and was cross examined. During his cross examination he confirmed that he had read the Affidavits by the parties and their witnesses, and had read the articles regarding parental conflict that had been submitted on behalf of the parties. He then said, “having read that material I don’t think I need to change anything in my report”.
During his oral evidence Dr Lennings said,
“I think it’s almost inevitable that this child will come to develop significant levels of anxiety, the child will experience a degree of confusion because of the differing approaches by the parents, but that can usually be moderated if there is some level of reasonable communication between them. But because of the high levels of animosity, the child will experience anxiety and probably anger as the child grows and that this will have the potential to hurt the child in developing his own relationships with people, particularly his intimate relationships when he gets older”.
Dr Lennings was asked by the Independent Child lawyer:
“Q: Do you recommend an interim order or a final order, or you’ve not yet formed a view?”
“A: I think, in a situation such as this, where there’s so much conflict, an interim order merely sets the scene for more conflict. I think an interim order means that people can continue to fight, make arguments and so forth. So, to that extent, I think settling the matter has benefits. It means that people have to live with and make accommodation to what is the situation. Because of age, there will obviously have to be some review of this in three or four years time. Anyway, when school goes – comes about and those kinds of things, but I think that a final order will relieve the parents of the need to keep on finding ways to undermine whatever orders have actually been made”.
The Independent Child lawyer also asked:
“Q: Is there any advantage or disadvantage from your point of view of having a staggering in the increase in time that [X] spends with his father?”
“A: Yes, I think my view, given the level of difficulty and also the level of difficulty between the parents and their communication and the observation – it’s a pretty good relationship really between the child and both parents – is that you don’t need to take a long time to do this. Again, the longer you take, the more the opportunity you have for argument…I don’t think it’s going to be a huge shock to [X] to spend more time with his dad and I think that you could do that, even within a matter of weeks”.
Counsel for the father asked:
“Q: I gather from your report that your recommendation is we could minimise those changeovers because they’re a potential flash point for conflict”.
“A: Yes…I like to reduce the opportunity for parents to have a go at each other. I also like to reduce the opportunity for a parent to question, particularly as [X] gets a bit older, to question or interrogate the child about, “What happened when you were there?” which inevitably occurs in these kinds of matters. So, if you reduce the amount of coming and going, you reduce those kids of opportunities”.
“Q: Do I take it from your report, sir, that you formed a view that the mother is overly anxious when the child is with the father?”
“A: I did…Ms Hector who has a belief about certain kind of style of parenting as to what’s appropriate and you have Mr Ritchie who has a belief about what he does is appropriate and, within the broad range of parenting roles, both are probably appropriate okay, but they choose to see each other’s – they choose to pathologies each other’s behaviours”.
“Q: One inevitable solution to all of this is to have the child predominantly, almost 90 per cent of the time with one parent and having one small period of time with the other so that the child then is not subject to conflicting parenting styles…I’m sure you considered it, and why wouldn’t that be of more benefit to the child?”.
“A: I usually advocate that where there’s a clear understanding that one parent is highly functional and the other parent is not highly functional or it in fact dysfunctional. In this situation, that is not my understanding and I see no advantage to that”.
“Q: I got the impression from your report that you would say that each of them had something to offer, but individually they would not be able to cater for all the child’s needs alone?”
“A: I think what I’m really saying in my report is that each of the parents has their own particular problems but the child will have a better life and will have a broader understanding of life and hopefully a broader understanding of life if exposed to both parents and, to a certain extent, there’s an opportunity for each parent to provide respite for the other parent and to provide respite to the child from the other parent when the other parent’s dysfunctions become too noticeable”.
Later in his evidence Dr Lennings said, “Being perfectly frank, one of the reasons why I suggested the child should have time with both parent’s is that he gets a bit of a break from each parent’s pathologies”.
Dr Lennings further said, “Where I have concerns that there are two dysfunctional parents, what you’re really doing is trying to make some kind of accommodation for the difficulties that exist in both households”.
Dr Lennings was at the above point directing comment at the overly protective traits of the mother, and the narcissistic personality traits of the father.
Dr Lennings was asked questions about whether, if [X] was living with each of his parents about 50 per cent of the time, then he would be living in a situation which was completely conflicted for 50 per cent of the time. Dr Lennings said, “He’ll be living in an environment and my perception is that it is the changeover periods and the periods immediately before and immediately after changeover that are going to be the most conflicted for him. The proposal I’ve put forward reduces that”.
In answering questions about how long each period of time [X] should have in his parents household, Dr Lennings said, “We need to be careful about a situation that allows, where you have two dysfunction parents, allows the opportunity for a child with a very distorted view of one family member…when you have this unbalanced system and you’ve got two parents where there is no good will you can sometimes end up with quite distorted and dysfunctional views that the child develops of one parents and, if you’ve got more time, there’s more time for reality testing”.
In paragraph 86 of his report. Dr Lennings said, “The needs of [X] in this situation are to have consistent and frequent contact with both parents so he can maintain good attachments with both parents. One of the problems in the current situation is the number of times when he is dropped off and picked up by either party…As a result there are now six occasions in which conflict or difficulties can arise within the current situation”.
The father seeks a restraining order about where the parties live. Neither party intends to move from the Eastern Suburbs of Sydney. No submissions were made as to the need for the restraining order. In the absence of evidence and submissions, no order will be made.
The law
Section 60B sets out the objects that govern and underline Part VII of the Family Law Act. Section 60B (1) and (2) read:
1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parenting Order that is made has to be in [X]’s best interests as required by s.60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out the primary and additional considerations that determines what is in [X]’s best interests.
As each party is asking for an Order that there be equal shared parental responsibility, it must then be considered whether [X] is to spend equal time with each parent. If equal time is not in [X]’s best interest then it must be consider whether [X] should spend significant and substantial time with one parent, whilst living with the other parent.
In her submissions, Counsel for the Independent Child’s Lawyer sought a six week phased introduction, by the end of which [X] is to spend 5 nights but 7 whole days in the care of his fathers. That this period of time be divided over a two weekly cycle so that in each
2 weeks there is a Friday night through to a Saturday night with each parent, which is culturally and religiously important to them as a consequence of their Jewish faith. Counsel for the Independent Child’s Lawyer relies on the good attachment that [X] has with each of his parents as referred to in paragraph 76 and 86 of the Family Report where Dr Lennings says that [X] needs consistent and frequent contact with both parents so that he can maintain good attachments with both. She notes that in paragraph 91 of the Family Report that Dr Lennings advocate an arrangement where [X] would spend 6 nights with the father and 8 nights with the mother. Her submissions pick up the recommendations in paragraph 92 of the Family Report that [X] should not spend more than 3 or 4 days away from either parent. She also adopts the strongly held view of Dr Lennings that the Orders that are made should be final so as to discourage the parents from continued litigation. It was submitted that it will prohibit the parties from coming back quickly. It will cause them to have to attend family dispute resolution. They will need to overcome the principle set out in Rice v Asplund (1979) FLC 90-725 in the event of a dispute that might give rise to a fresh application. She proposes a quick phased increase of the time [X] spends with his father as recommended by Dr Lennings. All of those submissions are sensible and appropriate having regard to the dysfunctional background of each of the parents, and accord with what is in the best interests of [X].
Determination
The periods of time proposed by the mother for [X] to spend time with the father will not ensure that the child has the benefit of a meaningful relationship with his father. The proposal is born on her inability to focus on [X]’s needs as opposed to the dysfunction in her relationship with the father (see paragraph 41 of the Family Report). It does not acknowledge the evidence of Dr Lennings in paragraph 86 of his report that [X] needs consistent and frequent contact with both parents so that he can maintain his good relationship with both. The proposal of the Independent Child Lawyer fulfils both this object, and meets the needs of [X]. Equal time would be difficult for [X] as he hasn’t experienced it, the father’s future housing and living arrangements are uncertain, and [X] is not yet developmentally ready for shared care. The Orders will be close to shared care, but not equal.
Neither party asserts that the protective issues espoused in s.60B(1)(b) are needed in this case.
Ensuring that [X] spends significant and substantial time with each of his parents will ensure that there is an antidote to the deficiencies in each parent’s household that [X] would otherwise experience. The time proposed by the Independent Child Lawyer will also enable each of the parents to fulfil their duties and meet their responsibilities as parents.
Equal time in each parents household at this point in his development would not be in his best interests. It would be contrary to the recommendations of Dr Lennings, it would separate [X] from his mother more than was necessary having regard to his stage of development.
There does however need to be for [X] a significant and substantial period of time that he spends with his father. Significant and substantial time accords with the recommendation of Dr Lennings. The orders proposed by the Independent Child Lawyer meet the definition of significant and substantial time set out in s.65DAA(3) as it will include weekends and holidays, weekdays, culturally significant days and will enable the father to be involved in the child’s daily routine.
The orders proposed by the Independent Child Lawyer are in [X]’s best interest in that they will ensure that [X] has the benefit of a meaningful relationship with each of his parents.
There is no evidence that [X] needs protection from the issues referred to in s.60CC(2)(b).
[X] is not yet of an age where his views have any relevance or weight. He is just becoming verbal.
Dr Lennings reports that [X] has a good relationship with each of his parents. The mother concedes reluctantly and only occasionally that [X] has a good relationship with his father. Spending the periods of time with his father that are proposed by the Independent Child Lawyer will also enable the father’s mother to have a continuing role in [X]’s life, a role she has had in the past.
The mother’s proposal is not indicative of a parent who is wanting to facilitate a close and continuing relationship with the other parent. The father’s proposal and the Independent Child Lawyer’s proposal do indicate this willingness. All of the mother’s evidence, both oral and in writing, is indicative of a person who did not wish to facilitate a close and continuing relationship between [X] and his father. Her evidence simply confirmed the observation of Dr Lennings, that all she could focus on was the dysfunction of her relationship with the father.
The orders proposed by the Independent Child Lawyer will affect a change in [X]’s circumstance. They will further increase the time that he spends with his father. That process of increasing time was commenced when interim orders were made on 4 December 2008. The periods of time that [X] spends with his father pursuant to the orders proposed by Independent Child Lawyer would not be so long a period of separation from the mother as to be outside the periods that
Dr Lennings thinks he can cope with, apart from the periods of school holiday, and those periods will not be commenced until approximately [X]’s third birthday so as to minimise the difficulties that [X] experienced as a result of the one week holiday he had in January 2009. The delay in holiday block periods being implemented will enable [X] to have a further period of development so that he will be better able to cope with that extended holiday period, which will be longer than the 3 to 4 day separation from the mother recommended by Dr Lennings.
There is no evidence that s.60CC(3)(e) is relevant in these proceedings.
While each of [X]’s parents has deficiencies that may impact on them being able to meet [X]’s emotional and intellectual need, such deficiencies in each of the parents are not so extreme as to give concern to their overall capacity.
The parents adherence to the Jewish faith means that the period from Friday evening to Saturday evening, and various other religious holidays, are important to each of them, and will therefore be important to [X]. It is to their credit that they were able to agree that these periods need to be shared.
Each of the mother and the father is a first time parent and are learning what that means with respect to the responsibilities of parenthood. The mother has had more time to experience this than the father, but there is nothing in the evidence to indicate that either of the parents will not be able to rise to the responsibilities of parenthood, especially if they obtain assistance which they have both indicated that they will. Each of them has a far from perfect attitude towards the child, and an inability to focus on [X]’s needs when confronted with the other.
There is no evidence that there is any concern with respect to family violence.
It is clear from the evidence of Dr Lennings that he sees that final orders rather than interim orders will benefit [X]. It is clear that if interim orders were made these parents will continue to fight, squabble and bicker, and that there will be likely to be repeated Court applications. Such behaviour will not be conducive to [X]’s well being, and is to be discouraged, and for this reason alone final orders are indicated.
It is also clear that the orders which are made will be unlikely to be able to continue operating once [X] commences school. That will not be until 2012. The stability that final orders will provide to [X] in the period of time leading up to 2012 will be for his benefit. If the parties are unable to agree to variations by that point in time with the assistance of family dispute resolution, then a further application will need to be made, but that is not a reason not to now make final orders. Although it is clear that the father has not availed himself of all of the opportunities to spend time with [X] that the mother has suggested, his failure of itself is not of sufficient importance not to make the orders proposed by Independent Child’s Lawyer.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Dunkley FM
Associate: D. Neligan
Date: 2 June 2009
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