SHILL & COVEL

[2015] FamCA 667

FAMILY COURT OF AUSTRALIA

SHILL & COVEL [2015] FamCA 667

FAMILY LAW – CHILDREN – INTERIM – BEST INTERESTS – SPEND TIME WITH – Father’s application to extend time with the child – Where the expert recommended that time with the father should be gradually increased – Where there is no evidence that the child requires protection from physical or psychological harm when with the father – Orders made providing for gradual extension of time with the father.

APPLICANT: Mr Shill

RESPONDENT: Ms Covel

FILE NUMBER: SYC 7141 of 2014

DATE DELIVERED: 14 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Harris Freidman Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the child B (“the child”) born … 2014 shall live with the mother.

2. That the child spend time with the father as follows:

   2.1 from 10 August 2015 to 10 September 2015 between 1.00 pm and 4.30 pm on Monday, Wednesday, Friday and Saturday of each week;

   2.2from 10 October 2015 until 10 November 2015 between 9.00 am to 4.30 pm each Wednesday and Saturday and from 1.00 pm to 4.30 pm on Monday and Friday;

   2.3thereafter from 9.00 am to 4.30 pm each Monday, Wednesday and Saturday;

3. That, unless otherwise agreed, to give effect to these orders the father shall collect the child from the mother’s residence at the commencement of time and return the child to the mother’s residence at the conclusion of time.

4. That the parties keep a communication diary, either in paper or email form, to inform each other of the type and amount of food and drink consumed by the child, the times when the child has slept and any matter relevant to the child’ development, skills, behaviour and wellbeing.

5. That in the event of an emergency the parent with the child is to contact the other parent immediately or as soon as possible to inform that parent of the situation and how the other parent can assist.

6. That pursuant to Sections 65DA(2) and 62B 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shill & Covel 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 SYDNEY

FILE NUMBER: SYC 7141  of 2014

Mr Shill

Applicant

And

Ms Covel

Respondent

REASONS FOR JUDGMENT

1. On 15 April 2015, the Court made orders in relation to the parenting of B born in 2014 (“B”). The orders essentially provided that the father would spend time with the child each Monday, Wednesday, Friday and Saturday from 4.00 pm to 6.00 pm for a period of eight weeks, to be supervised in the mother’s home. The orders further provided that the parties were to attend upon the child’ paediatrician to discuss issues relating to the child’ health, particularly in relation to an eating disorder; that the father enrol in and complete some parenting courses conducted by C Group and that the supervision of the time the father spends with the child was to cease on 15 July 2015 unless, in the meantime, a report was prepared by the single expert, Ms D, indicating that supervision should continue.

2. The matter was stood over before me for consideration of Ms D’s updating report and the father’s application to extend time with the child. The parties agreed to orders requiring the father to undergo hair follicle testing for steroids.

3. When the matter came before the Court on 10 August 2015, the father had undertaken the hair follicle testing as required by the orders and the report of the tester indicated that there was no evidence that the father had used steroids. The single expert, Ms D, had interviewed the parties on 23 June 2015 and prepared an updated report.

4. Ms D observed the child with his parents in the course of the preparation of the report. She observed:

   [The child] was observed in a short play session with his father. It was notable that [the child] was much happier to leave his father and explore the room and the toys this time, and he would then return to his father to give him / show him a toy. [The child] loved being picked up by his father to look at things like what was out the window, and how the lights and telephone worked, etc. He was curious about his environment and his father actively encouraged [the child’s] curiosity.

   In the informal observation period, [the child] was noted to move between his parents comfortably with no signs of anxiety or weariness. He did not become clingy or distressed at being separated from either of them, and he was happy to see them again when they reappeared. When it was time for [the child] to go home (with a third party) he briefly resisted getting in his pram, but was then coaxed in with a bottle. He waved cheerily to his parents and left without any issues.

5. By the time Ms D saw the child with his parents on 23 June 2015, the child had been spending time with his father at least three times a week from the end of December to that date.

6. Ms D in her report recommends that the father’s time with the child, which has been unsupervised since 15 July 2015, be further extended.

7. The father seeks orders in accordance with Ms D’s recommendations. He asks the Court to order that he spend time with the child until 10 September 2015 from 1.00 pm to 4.30 pm on Monday, Wednesday, Friday and Saturday of each week; from 10 October 2015 until 10 November 2015 from 9.00 am to 4.30 pm each Wednesday and Saturday and from 1.00 pm to 4.30 pm on Monday and Friday of each week. Thereafter the father asks the Court to order that he spends time with the child from 9.00 am to 4.30 pm each Monday, Wednesday and Saturday.

8. The mother seeks a more restricted arrangement which would provide for the child to see his father, for a period of three months from the date of the orders, every Monday, Wednesday, Friday and Sunday from 2.00 pm to 6.00 pm and for twelve months thereafter every Monday and Thursday from 9.30 am to 6.00 pm and every Sunday from 7.30 am to 10.30 am. The mother seeks an order that the father be required to bring the child back to the mother’s home for all feeds and sleeps.

9. The mother also seeks orders that the father be restrained from consuming any alcohol or illegal drugs during any period when the child is to spend time with him or for 24 hours prior to the commencement of that period.

10. The mother asks the Court to order that the father undertake supervised urinalysis, at her expense, for a period of three months twice each week.

RESTRAINTS IN RELATION TO ALCOHOL

1. The mother relies upon paragraph 177 of her affidavit sworn on 12 December 2014, where she recounts an incident on 7 September 2014. On that day the mother says that she took the child to the father’s house, it being Fathers’ Day, and arrived at about 1.45 pm. The mother observed that there were used wine glasses on the bench. The mother deposes that she set up a picnic for the father and the child, with two beers, some chips, a card and a present. The mother says that the father came out of the bathroom and knocked over the beer. The mother does not depose to the father being affected by alcohol. The father told the mother that he had had friends over for dinner and drinks, the night before.

2. The mother does not depose to any incident when the father was affected by alcohol in the presence of the child or when the father consumed alcohol in the presence of the child.

3. The mother herself consumes alcohol when the child is in her care as is evidenced by the Instagram photographs which are annexed to the father’s affidavit, one of which depicts the mother holding the child on her hip with a glass of wine in her hand and is captioned “Two of my favourite things: one in each hand. Multitasking at its best.”

4. There is no evidence to suggest that the father has or is likely to abuse alcohol when the child is in his care. I do not propose to make the orders which are sought by the mother in that respect.

5. In relation to the use of illicit drugs, the father has undertaken the hair follicle testing which the mother sought and there is no evidence that he uses illicit substances and I do not propose to make those orders.

WHAT ARRANGEMENTS SHOULD BE MADE FOR THE CHILD?

1. Each of the parents agrees that the child’ time with his father should proceed unsupervised. The dispute between them is the extent of the time and where it should be exercised.

2. Each of the parents kept extensive notes documenting every occasion on which the father has spent time with the child in the mother’s home under supervision. Their accounts of the times bear little resemblance, one to the other, and it is impossible to know which of them is more accurate having regard to the extent of the acrimony between them.

3. These are interim proceedings and issues of fact cannot be resolved. I propose to place the most weight upon the observations of the single expert, independently of both of the parties, as to the manner in which the father interacts with the child.

4. Both the parents reported to Ms D that there was a recent visit when the mother supervised, due to the nanny not being available, and the parents argued about the way in which the father was interacting with the child. The mother asked the father to leave after only 30 minutes of the visit had passed.

5. Having regard to the acrimony between the parties it cannot be in the child’ interests if the father is required to continue to spend time with the child at the mother’s home, even if he is only required to do that for the purpose of the child having a meal or sleeping.

6. Ms D in her report stated:

   …in terms of relationship development, it would be far better for the child to spend as much of the early part of the day as possible with his father, be settled into his daytime sleep, and then be settled out of it. An extended period of time for each visit gives the child the chance to experience multiple types of interactions with his father – play, sleep, soothing, eating and some outdoor activities. The obvious excitement that the child feels from spending short and intense periods of time with his father would be somewhat ameliorated if this time was to become more routine and you would expect to see an overall settling in the child’ behaviour after he became used to the change.

7. Although the mother opposes the child spending extended periods of time with his father for the next three months she proposes that if she can find employment, the child will be cared for in family day care. The mother says that she is currently looking for work.

8. The mother told Ms D that she is looking for a part-time job of ideally no more than three days per week and that the child would be in family day care, presumably for those three days.

9. The parties have attended upon Dr E, the child’ paediatrician. Annexed to the father’s affidavit is a letter from Dr E dated 4 July 2015 which indicates that the child’ gut problems have settled and that he was in a position to cease medication and could be reviewed “as needed”.

10. Ms D in her report recommended that the child’ time with his father should be gradually increased. For the first month Ms D suggests that the days the child currently spends with his father should commence at approximately 1.00 pm or just after the child has woken from his daytime sleep. She suggests that the mother should pack a lunch for the child and the father should collect him from a neutral location close to his home and return him to the mother at the same place at 4.30 pm. The parties have not suggested a neutral location, but they can agree on a location. In the absence of agreement, changeovers will take place at the mother’s home.

11. In the following month Ms D recommends that two of the four days should commence at 9.00 am and end at 4.30 pm with the father being responsible for what the child eats on those days.

12. In the following month Ms D recommends a further full day should be added, dropping the fourth day. The arrangement would then be 9.00 am to 4.30 pm on days to be negotiated between the parties, or failing that as determined by the Court.

13. Ms D recommends that if the mother commences employment the child should continue spending three days a week with his father, preferably to accommodate her working days.

14. Ms D suggests that that arrangement could conceivably continue well into the future and it is certainly an arrangement that could continue until such time as this matter has been heard and determined.

15. This is not a matter where it has been established that the child is likely to require protection from physical or psychological harm in the care of his father. There is no suggestion, in the affidavit material provided by the mother, that there has been anything untoward in relation to the child’ welfare in the time he has been having unsupervised time with his father since 15 July 2015.

16. Therefore the primary consideration to be borne in mind when determining what arrangement should be made for the child is the benefit to him of having a meaningful relationship with both of his parents.

17. There is no dispute that the child has a close and loving relationship with his mother. The relationship observed by Ms D between the child and his father is developing. It is significant that Ms D noted that the child moved between his parents comfortably with no sign of anxiety or weariness suggesting that he regarded both of them as both familiar and trusted figures.

18. The mother continues to assert that the father’s residence is not suitable or safe for the child to visit in any circumstances, and especially not to have his midday sleep, his dinner or quiet time.

19. The father deposes that he resides in a three bedroom unit above the gymnasium that he owns in Suburb F. The father deposes that the child will have his own room that has been set up with a cot and toys. The father says that he has purchased all of the necessary equipment for the child including a cot, a highchair and a change table. The father has installed child-proof safety gates at the stairs for the child, which is the same safety gate which is installed at the mother’s home, and has put door locks on the cupboards and inserted plugs into the power points. The father has arranged for the gym to be closed between 11.00 am and 4.00 pm and installed insulation to reduce sound and vibration from the gym affecting the residence.

20. In so far as the mother asserts that the child is unsafe in the father’s gym, even under the father’s supervision, it would appear that the mother takes the child to her gym. Instagram photos annexed to the father’s affidavit show the mother in a gym with the child, exercising with the child in the gym and the child sitting on a machine in the gym.

21. The father has, in accordance with the recommendations of Ms D, completed the Circle of Security parenting program and is enrolled in and has partly completed the further two courses which were recommended by Ms D being “1, 2 3 Magic” and “Keeping Kids in Mind”. Ms D commented that the father presented as having benefitted from attending those courses.

22. It would appear that the mother is not concerned about the effect of the child’s being separated from her. She travelled to Country G between 21 and 23 December 2014 and again between 10 and 14 March 2015. There is no evidence before the Court to establish who cared for the child on those occasions. The mother appears to be content that the child will cope well with family day care since that is her proposal as related to Ms D.

23. While the affidavit material establishes comfortably that the mother is very anxious and suspicious about the father’s ability to care for the child, and that the relationship between the parents is strained and their dealings unpleasant, it does not establish that anything has happened as a result of the father’s time with the child that has put the child at any risk of harm.

24. I accept the evidence of Ms D that the child is happy and secure in the care of his father and that, in her expert opinion, it is now appropriate for the times to be extended.

25. Orders will be made substantially in accordance with her recommendations.

26. It is regrettable that the parties cannot agree about the manner in which they will communicate about their child. However, in those circumstances it is appropriate that they keep a communication diary, either in paper form or by email and that each of them notes for the other the type and amount of food and drink consumed by the child, the times when he has slept and any incidents which are relevant to his development or behaviour.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 August 2015.

Associate:

Date:  14/08/2015