Shelbourne and Vickery

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHELBOURNE & VICKERY

[2016] FCCA 3396

Catchwords:
FAMILY LAW – Final parenting hearing – parental responsibility – spend time arrangements – parties need assistance of post orders parenting program to improve communication and reduce the conflict.

Legislation:

Family Law Act 1975, ss.65DAA, 60CC(2)(a), 60CC(3)

Applicant:

MR SHELBOURNE

Respondent:

MS VICKERY

File Number:

DGC 3770 of 2015

Judgment of:

Judge Harland

Hearing date:

8 December 2016

Date of Last Submission:

8 December 2016

Delivered at:

Dandenong

Delivered on:

9 December 2016

REPRESENTATION

Counsel for the Applicant:

Mr McGann

Solicitors for the Applicant:

Berwick Legal

The Respondent:

In person

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child X born (omitted) 2011 (“the child”).
The child live with the mother.
The child spend time with the father as follows:-
(a)From 5.00pm on 16 December 2016 until 18 December 2016 at 5.00pm;
(b)From 5.00pm on 22 December 2016 until 24 December 2016 at 5.00pm;
(c)From 5.00pm on Christmas Day 2016 until Boxing Day 2016 at 5.00pm and each alternate year thereafter;
(d)From 5.00pm on 30 December 2016 until 2 January 2017 at 5.00pm;
(e)From 5.00pm 12 January 2017 until 15 January 2017 at 5.00pm;
(f)From 5.00pm 18 January 2017 until 22 January 2017 at 5.00pm;
(g)From 5.00pm 26 January 2017 until 28 January 2017 at 5.00pm;
(h)During the school terms, commencing on Friday 3 February 2017, from after school until 5.00pm on Sunday 5 February 2017 and each alternate weekend thereafter. In the event the Monday is a public holiday that the time be extended to 5.00pm on the Monday;
(i)During school terms, commencing on Wednesday 8 February 2017 after school, or at 5.00pm if the child is not at school, until before school on Thursday 9 February 2017 and each alternate week thereafter;
(j)During first term school holidays:-
(i)3 nights from 5.00pm on 7 April 2017 until 5.00pm on 10 April 2017; and
(ii)4 nights from 5.00pm on 13 April 2017 until 5.00pm on 17 April 2017.
(k)During second term school holidays:-
(i)3 nights from 5.00pm on 6 July 2017 until 5.00pm on 9 July 2017; and
(ii)4 nights from 5.00pm on 11 July 2017 until 5.00pm on 15 July 2017.
(l)During third term school holidays:-
(i)3 nights from 5.00pm on 27 September 2017 until 5.00pm on 30 September 2017.
(ii)4 nights from 5.00pm on 4 October 2017 until 5.00pm on 8 October 2017.
(m)In the event the child is not already in the father’s care on the Sunday immediately prior to Christmas Day that the child spend from 9.00am until 5.00pm that day in his care;
(n)From 5.00pm on 24 December 2017 until 11.00am on Christmas Day and each alternate year thereafter;
(o)The first week of the Christmas school holidays in 2017/2018 and each alternate year thereafter. On a week about basis, provided that the father has leave from work for his weeks;
(p)The second week of the Christmas school holidays in 2018/2019 and each alternate year thereafter. On a week about basis, provided that the father has leave from work for his weeks;
(q)From 2018 onwards during the school term in a two-week cycle on alternate weekends in week one from after school Friday until before school Monday, extending to before school Tuesday in the event that the Monday is a public holiday. In week two from the conclusion of school on Wednesday until the commencement of school on Thursday;
(r)During first term holiday from 5.00pm on 15 April 2018 until 5.00pm on 22 April 2017. Following years for a 1 week block at times to be agreed and failing agreement the second week;
(s)During second term holiday from 5.00pm on 1 July 2018 until 5.00pm on 8 July 2017. Following years for a 1 week block at times to be agreed and failing agreement the first week; and
(t)During third term holiday from 5.00pm on 30 September 2018 until 5.00pm on 7 October 2018. Following years for a 1 week block at times to be agreed and failing agreement the second week.
In the event that the child is not already in the father’s care on Father’s Day, the father spend time with the child from 9.00am until 5.00pm.
In the event that the child is not already in the mother’s care on Mother’s Day, the mother spend time with the child from 9.00am until 5.00pm.
In the event that the child is not already in the father’s care on the father’s birthday, the father spend time with the child from 4.00pm until 7.30pm.
In the event that the child is not already in the mother’s care on the mother’s birthday, the mother spend time with the child from 4.00pm until 7.30pm.
On the child’s birthday, in the event the child is not already in the father’s care, that the father spend time with the child if a weekend from 1.00pm until 5.00pm and if a school day from after school until 7.00pm on that day.
On the child’s birthday, in the event the child is not already in the mother’s care, that the mother spend time with the child if a weekend from 1.00pm until 5.00pm and if a school day from after school until 7.00pm on that day.
On 5 February and 17 November each year, in the event the child is not already in the mother’s care, that the mother spend time with the child from 4.00pm until 7.30pm on those days.
The parties are to use a communication book for the purpose of communicating relevant and important health and diet information of the child’s care provided, important dates of school functions or special events and incidents or accidents resulting in injuries. The book to be exchanged at changeover of the child.
The parties are to ensure that the child is not exposed to age inappropriate movies or activities whilst in their respective care.
In the event that the father is unable to collect the child from school during his scheduled times with the child due to a work commitments, he is to advise the mother as soon as possible so that the mother can collect the child from school and the father will collect the child from the mother at 5.00pm that day.
Each parent:
(a)Attend the Parenting Orders Program at (omitted) Family Life (“the Program”) for assessment and family counselling;
(b)Contact the coordinator to enroll in the Program within seven days of today’s date;
(c)Follow the recommendations of the Program administrator;
(d)Complete all aspects of the Program required by the Program administrator;
(e)On the day that the applicant first attends the Program for assessment, the applicant provide to the Program administrator a copy of any family report and s.11F memorandum relating to the parents and their children, or any of them and these Orders; and
(f)Within 14 days of receipt, each parent file and serve an affidavit exhibiting that parent’s Certificate of Engagement with the Program.

NOTING

The purpose of orders 15 is to assist the parents to address their long-standing conflicted relationship, to better communicate, to develop respect for their different parenting styles and to gradually develop insights into how their conflicted relationship, and the exposure of their children to it, is having long term effects on their children’s emotional well-being and development.

IT IS NOTED that publication of this judgment under the pseudonym Shelbourne & Vickery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3770 of 2015

MR SHELBOURNE

Applicant

And

MS VICKERY

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This case concerns X born (omitted) 2011 (“X”) who is five years of age. He is dearly loved by both parents who are both fundamentally decent people and both want what is best for X. The case was heard before me yesterday because they cannot agree on what arrangements there should be. Both parents acknowledged during the hearing yesterday that the other parent is basically a good parent. The mother has some concerns about the father's parenting but said for the most part he is a good parent. What is clear is that the mother is the more experienced parent of the two. She has two older children, Y who is 13 years old and Z who is 12 years old. The mother has the experience of having to raise these children on her own as Y and Z’s father has not had any involvement in their lives for some years.
The mother outlines some concerns that she has about the father in her trial affidavit. The father outlines concerns that he has in his trial affidavit. It is fair to summarise the mother’s concerns as the following:-
·Inappropriate physical discipline by the father that seems to be limited to one incident exposing X to an adult movie; and
·Whether or not X can cope with an increase in time arrangements.
The father’s concerns are as following:-
·Whether or not the mother will facilitate him having a meaningful relationship with X;
·The mother raises allegations against him; and
·The mother seeks to reduce and vary his time.
I do not propose to go through all of the concerns that the parties raise in their affidavits, though I have taken those into account. I do not think it is particularly helpful or necessary to go through all of them, given that there is no dispute that X should remain living with his mother, and that he should spend regular time with his father.
The issue really is about parental responsibility. The mother seeks sole parental responsibility and the father seeks shared parental responsibility. Another issue is how much time the father should have and what that would look like. There certainly is agreement that he should be having regular time during school terms and school holidays, noting that X will be starting school next year.
Both parents agree that their communication with each other is poor, and they both give examples of that, and it is clear that both are responsible for that poor communication. They have each completed a parenting after separation course, but each conceded that they could use more assistance. Both parents are willing to participate in the post orders parenting program which was recommended by the family consultant, Ms D, for the parties to attend (omitted) Family Life. That course will hopefully provide both parents with the tools to be able to communicate with each other more constructively, as clearly they are going to need to work together for X's best interests for years to come.
The benefit of the post orders parenting program at (omitted) Family Life is also that it will be able to refer the families for other services that they may identify that they could benefit from; including counselling services and services for X should he need them. It is very much a holistic approach, which I am confident will benefit both the parties because I am satisfied that both parties are genuinely open to participating in that program and hope to benefit from it for X's best interests. I am satisfied that both parents are genuine in their concerns about X, and have approached the case in this light. They come from very different perspectives and have very different personalities that lead to different parenting styles as well.
As I indicated during the hearing, I think one of the issues for these parents has been that they, apart from a couple of months, did not live together, and have not had that experience of living together and raising X together. In my experience in the cases that I see before the Court, means that there is a lack of experience of each other as the parents of X, and that can lead to a lack of trust. And particularly at times where there has been miscommunication. At times there has been quite mean communication. This does not take away from both parents being fundamentally decent people. People sometimes behave badly, and particularly after a separation, and I do not need to go into that any further. Those issues have been discussed during the course of the hearing.
The mother seeks sole parental responsibility because she cannot see how they are going to be able to communicate effectively together and work through that. And it is also the case that the mother has not had the experience of having to share that parental responsibility with another parent, given her own experiences of really having to do it on her own. It is apparent to me that it is difficult for her to really get her head around how it would work. I think she is genuine in that.
It is also clear that the mother enrolling X in school without seeking the father's input is an example where it has clearly caused the father concern and anxiety that he is going to be excluded from decision making for X, but also one where the mother, I think she was genuine in this, did not think it was going to be an issue. She is used to making these decisions on her own. I am satisfied that it just did not occur to her that that is something that she really should have raised and discussed with the father and sought his input first. From her perspective, her older children went to that school, and I think she thought pretty naturally that X would go there.
The mother showed some understanding of where the father was coming from once it was really highlighted to her, but I think was genuine in not really understanding prior to that concern. That should hopefully give the father some confidence that it is not going to happen again. I think the mother understands that there are issues like that that need the father’s input.
The father seeks equal shared parental responsibility, and I discussed this during the course of the hearing, and I am certainly satisfied that the parents should share equal shared parental responsibility. It is important for X's benefit when two parents are actively involved in a child's care. The child actually benefits from the input that both parents give from their different perspectives about those long term issues. Those issues are not about the day-to-day things, but important things, and an example will be if, for some reason, the parents think X needs to change school, or when X is going to high school. Other issues can include religion, which is not an issue that anyone is raising in this case, change of name, which again is not an issue that is being raised. It can also include a move away that would make it impractical for the current spend time arrangements to remain in place.
It is also apparent that there is not any particular long term issue that is looming. Of course, there might be something that comes up unexpectedly. I am going to order that the parents participate in the post orders program at (omitted) Life because that means that they will be getting the tools that they will need to be able to communicate effectively about those things.
The family report writer observed X to transition very easily between his parents at the family report interviews. X clearly has a loving and close relationship with both his parents and was happily engaged with both parents. Neither parent spoke to each other, or looked at each other when X was there with them. That is something that X would pick-up on and know that his parents do not really like each other. They are not friends. Often you hear small children refer to their mum and dad as not friends. They wish mum and dad were friends. Often they wish mum and dad lived together, even though X has never experienced that. It is an important thing to work on, which hopefully that course will also assist in, because X would really benefit from those little signals that are unspoken that mum and dad are able to say, "Hi. How are you?" It does not have to be a long conversation, but just those little things which I also anticipate will get easier in time. The conflict is at its highest when parties are in Court for a final hearing.
It is incredibly stressful for parties to go to through this process, because it concerns the most important thing in the world to both of them, their child. It may be hard to imagine now that communication will get better but for the majority of people it does. It takes a bit of time. Having observed both parents in the courtroom, I think they can both see the benefit of that. I think they are willing to work towards that.
One incident that caused the mother great concern was when the parents were still together in their relationship and the father physically disciplined X. The father's evidence is that he smacked X on the bottom. The mother's evidence is that, although she did not see it, she saw a mark on X that indicated he had been hit across his kidneys. It is understandable why that incident would be concerning. The father said that he has not used physical discipline since. The impression that I got from that was that it was probably a bit of a shock to both parents. X was distressed by this. The father gave evidence, and I accept it, that he uses other tools such as time out with X. It is not necessary for me to resolve which version is correct.
I accept that it was an incident that caused concern, and I accept that it was an incident that probably was a bit of a wakeup call to the father as well about it not being an appropriate method of discipline. The mother acknowledges that every parent makes mistakes and that is true. While the mother understands this intellectually, I think she finds it hard to move on and not worry that the father is going to make more mistakes. Of course he probably will. The mother probably will too, because it does not matter how experienced a person is as a parent, parents make mistakes. I have no concerns about either parent's capacity to parent X and provide for his intellectual, physical and emotional wellbeing.
Both parents take the responsibilities of parenthood seriously. Parenthood is about responsibility and duties, whereas the child is the one who has all the rights. The concern the Court has and must have is what is in X's best interests. That is the paramount consideration of the Court, and not about what is best for the parents. I am satisfied that X will benefit greatly from having a meaningful relationship with both his parents, he does have a meaningful relationship with both parents, and a very close and loving relationship with both parents.
Both parents want what is best for him. They might disagree at times about what that is. They may disagree in the future. That is also part of parenthood and part of co-parenting. They will have to be able to work through those issues. If they cannot agree, they should use services such as family relationship centres and mediation to work through those things. And that is not to suggest anything negative about either parent's capacity to do that. It is not uncommon for parents to sometimes to use those services.
One of the recommendations of the family report writer, and one of the others that the father seeks, is that the parties do engage in mediation when X is seven to look at whether the spend time arrangements should change. I think that is a good idea rather than trying to look beyond X's age then to see what arrangements should change. A lot can happen for a child, and we are dealing with X who is still young.
X is going to go school next year which is a big transitional year for any child. Some children adapt very well to school, other children take a bit of time. No one knows how X is going to be at school until he starts. I am also confident that both parents are aware of that and will be looking out for X. It will be important for X for the parents to have confidence to be able to communicate with each other about what they see and experience of X, without the other parent taking it as there being something wrong in the other parent's household. At the moment, they are not at that stage where they are able to do that, but that is the aim and the Parenting Orders Program can assist them. I think the goodwill is there and the desire to be able to do what is best for X.

One of the mother’s other concerns is that X was exposed to an adult movie. There is no doubt that he was exposed to at least part of that movie and that that had an impact. My impression is that until the family report writer was talking about this in evidence yesterday, that the father did not appreciate quite how much of an impact that had on mother and her distress because of what X was saying to her after being exposed to it. That was an unfortunate incident that should not happen again. I was watching the father yesterday as that evidence was given, and I think he has taken that on board and it was a lesson to him. The answer, as the family consultant gave, is simply to not have movies like that on when X is at the father's home and asleep because little kids wake up. You never know when they are going to wake up. They also can hear things. I am satisfied that it was completely accidental and inadvertent. I am satisfied too that the mother's concerns were genuine and that that is why she reported it to the Department of Health and Human Services. They investigated and did not substantiate it. I do not find that she did that out of any sense of being malicious, or trying to be difficult about the father. I think she was genuinely concerned about that issue.
The father has concerns that the mother is not able to facilitate his relationship with X. The issue of the choice of X’s school was an example to him of the mother failing to do this. It is certainly apparent to me when the mother has appeared in Court both yesterday and previously, that the mother is very anxious, and probably more anxious than she appreciates about X's coping mechanisms, and about the sharing of X. The family consultant was quite insightful about this, and it was one reason for recommending that the parents participate in that program where the mother will also be able to get some individual counselling support.
I am also satisfied that X would be aware of the mother’s anxiety and her lack of confidence when he is in his father's care. This is not because she means to signal this anxiety, or does that overtly at all. I also appreciate that the mother is not as anxious when she is at home as she is in Court, which is incredibly stressful. But children pick-up how their parents are feeling. They are very attuned to their parents because they are so reliant on the adults in their life. I think X would be aware that his parents do not really get on with each other and are not friends, and that is something that will cause him a little bit of stress because he clearly has a close and loving relationship with both his parents.
The family report was a very helpful document in this matter, as was Ms D's evidence. At paragraph 21 she gives a good example of the types of communication problems and mistrust between the parents. The mother spoke about X having come down with gastro while in the father's care. And that the father did not tell her about that, and did not tell her that X had vomited while in his care. The father acknowledged to the family report writer that he did not tell the mother about X’s gastro and said that he withholds communication like that from the mother because he is concerned that she would distort that information and make allegations against him. This is a classic example of the two very different perspectives that the parents come from, it is understandable for both of them. From the father's perspective, I can understand why he would be concerned about the mother's reaction. From the mother's perspective, I think that would have only heightened her concerns, because if the father is not telling her about X getting ill, what else is not he not telling her about? It is very clear to me that that is an example of the very different perspectives of the parents, both of which are valid.
I will be ordering that the father provide a copy of the family report to the coordinator of the parenting Post Orders Program. The reason for doing that, and both parties were agreeable to that when asked yesterday, is because it gives some examples of the kinds of things that the parents need to work on to improve their co-parenting relationship.
The family report writer had the impression that the mother is overprotective, and that she fears losing X to the father. I agree with that assessment. Also that the mother lacks confidence in the father's parenting capacity, and as a result of that, has some difficulty in fostering the relationship between X and the father, but I accept that she wants to foster that relationship. I think she struggles with how to do that.
The report writer put this in context in terms of the mother's experience of her parents having a very acrimonious divorce when she was a young child and also having the experience of a relationship with the father of her two older children, who was abusive, abused drugs, and also had mental health issues. Although he had some time with the children at a supervised contact centre when they were young, has entirely dropped out of their lives. It is understandable that the mother has those concerns, given what she experienced. It is also understandable why the father worries about being open with the mother because he is concerned that the mother will react in a sort of negative way and that that may lead to there being problems about him spending time with X.
One thing that is to the credit of both parents is the observations that the family report writer made of both of them with X, and the fact that X is relaxed and comfortable with both parents. Both parents are able to engage with him on his level, something that he clearly benefits and enjoys. This is because both parents are doing a good job with him. Clearly, X is a lovely little boy who is dearly loved by both parents and loved by other extended family members as well. He has the benefit of having older siblings on one side that I am sure he also has the benefit of, and that is to the parents' credit.
The family report writer observed that she thought that the father impressed as being capable and attentive, and he spoke about having a good role model in his stepfather, and that he aspires to being as good a parent as he can be. I certainly accept that.
The mother's cross-examination of the family consultant was telling in that the mother put her worries and fears to the family consultant. Most of her questions started with "should I be worried", and she identified those factors, and that indicates the kinds of fears and concerns that the mother has. What was clear from the way that she asked those questions is that she does want assistance and wants some reassurance about those issues. I suspect that perhaps the father has not quite realised that they are genuine concerns that she has, I think he will be more sensitive to in the future, just as she needs to be sensitive to the fact that he really is not going to put X in harm's way. He wants the best for X too, and wants to be the best parent he can be.
The family report writer spoke about X’s stage of development, which also an issue of concern to the mother. She is concerned about whether he can cope with an increased period of time away from her. The family consultant was clear that she maintains the recommendations in her report and was of the view that X can cope with more nights away from his mother. One of the reasons for that is because he has a very secure attachment to his mother and recognises his mother as his primary attachment figure. The father also recognises this as X has been in her primary care.
X is now at this a stage where he begins to understand the concept of being away from his mother and coming back to his mother. He is able to cope with this and also at this stage needs to have regular time with his father. This means some time each week rather than being a block of not seeing his father for up to 10 or 12 days a fortnight, and certainly my impression of the mother was that she really took on board what was being said about those issues. I am satisfied that the mother thought through her proposes and was thinking from the perspective of X starting school that she thought that just having the one transition once a fortnight for a three-night period was going to be best for X and easier for the parents.
I do not share that view. X needs to have that other time during the week, but I certainly accept that the mother put some thought into what her proposals were, just as the father has, and the father’s proposal is largely in line with the family report. It is also quite normal for a child of X’s age to try and please both his parents and say things that he thinks he wants his parents to hear. Sometimes it is hard for parents to interpret and hard to not think the worst and to think that there must be something happening in the other household. This is because they do not have the trust in each other and the ability to just pick up the phone and communicate about these things, it makes it difficult.
One of the problems with relying solely on written communication, which is the stage where the parents are at, and I am not suggesting that they are at a stage where they can start talking to each other, is that there is no tone of voice. This can lead to misinterpretations.
As I have indicated previously, I am satisfied that it is in X’s best interests for the parents to have equal shared parental responsibility. That triggers the provisions of section 65DAA where I must consider whether or not it would be in X’s best interests to have an equal time arrangement. Neither parent seeks that, quite appropriately, and I am satisfied that that would not be in X’s best interests at his age and stage of development.
I am then required to consider whether or not it would be in X’s best interests for the father to spend substantial and significant time with X. This is defined as including time during the week, as well as time on weekends. The reasoning behind this is that a parenting relationship with a child deepens and strengthens for the type of time that a parent spends, not just about the quantity. Sometimes it is referred to as authoritative parenting, and by that I do not mean authoritarian, but in the sense of being involved in and experiencing the day to day responsibilities of the child. This can include having to make sure a child gets to school on time and is ready for school, that the child is doing homework, is doing all the things that sometimes children do not want to do, going to bed and having those routines. That is where a relationship deepens, rather than simply being a fun time parent, being the parent on the weekends. It is important not just for the parent, but really important to the child to be able to have that experience with both parents when both parents are capable of providing for a child’s physical, emotional, intellectual and psychological needs, as I am satisfied that both parents are.
I have already mentioned the fact that both parents have a meaningful and close and loving relationship with X and I am satisfied that section 60CC(2)(a) applies in this case. Whilst the mother makes some complaints of family violence during the relationship, I am not satisfied that there are issues of violence or abuse that would mean that the consideration of X having the benefit and entitlement of a meaningful relationship with both parents does not apply.
I then need to turn to section 60CC(3), and, looking at the relevant factors under that section, X is too young to express a view, but it is clear that he greatly enjoys spending time with each of his parents and has a loving and close relationship with them. I am satisfied that both parents have taken the opportunities to be involved in the decision making for X and for his welfare.
Neither parent raises any issue of concern with respect to maintenance issues for X.
In terms of the effect of any changes to the parenting arrangements with X, I am satisfied that the orders that I am going to make are arrangements that X can cope with, and that will be of benefit to him. There may be some transition, but I am satisfied that they are in his best interests.
There are no practical difficulties or expense with respect to the parents spending time with X. They live in neighbouring suburbs.
There are no family violence orders in place.
In terms of considering whether or not the orders are least likely to lead to further proceedings, I have some confidence that the parents will in the future attend mediation when X turns seven, and most likely to be able to make arrangements for themselves without Court intervention, and I think that would be the case regardless of the orders that I would make.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 December 2016

[2016] FCCA 3396

9 December 2016

Key Legal Topics

Areas of Law

Family Law