Terry and Henderson
[2011] FMCAfam 960
•16 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TERRY & HENDERSON | [2011] FMCAfam 960 |
| FAMILY LAW – Parenting dispute – child of pre-school years – family report recommending increased time with father – consideration of whether appropriate to make final orders given child’s age. |
| Family Law Act 1975, s.60CC |
| Applicant: | MR TERRY |
| Respondent: | MS HENDERSON |
| File Number: | MLC 6461 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 18 August 2011 |
| Date of Last Submission: | 18 August 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr McConchie |
| Solicitors for the Respondent: | Butler McLeod Pty |
ORDERS
The Airport Watch List order contained in order 2 of the orders made in this Court on 25 November 2010 be discharged and the Australian Federal Police be requested to remove the names of the child [X] born [in] 2007 (“the child”) from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.
The child live with the mother.
The mother and father assume equal shared parental responsibility for the child’s health and welfare, and the mother assume primary responsibility for the child’s day-to-day care.
The father spend unsupervised time with the child as follows:
(a)Each Wednesday (or day to be agreed upon) from 4.00 pm to 7.00 pm;
(b)Saturday from 11.00 am until 5.30 pm on week one and on Sunday from 11.00 am to 5.30 pm on week two, for an initial period of four months.
(c)If this period goes without incident and the father agrees to seek medical assistance for his reported sleeping and depression difficulties, these days be extended from 10.00 am to 5.00 pm.
(d)Changeover occur at the maternal grandparents’ home, a venue that is known and familiar to the child.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Terry & Henderson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6461 of 2010
| MR TERRY |
Applicant
And
| MS HENDERSON |
Respondent
REASONS FOR JUDGMENT
Introductory
This case is about how much time [X], born [in] 2007, spends with his father. It is agreed that the parties have equal shared parental responsibility for the child, and that he live with the mother.
The father’s proposal has varied from time to time but as articulated before the Court, he seeks that [X] live with and spend time with him from 5.00 pm Friday to 5.00 pm Saturday in one week and from 5.00 pm Saturday to 5.00 pm Sunday in the following week.
The mother’s countervailing proposal is that the father spend unsupervised time with [X] each Wednesday from 4.00 pm until
7.00 pm and from Saturday 10.00 am until 1.00 pm in one week and from Sunday 10.00 am till 1.00 pm in the second week for four months, thereafter from 10.00 am till 5.00 pm on each of those days.
In the ultimate, an issue as to changeover appears to have disappeared, and it will continue to take place from the mother’s parents’ home in [omitted]. The father is to collect and return the child.
For the reasons that follow, I am going to make the orders sought by the mother, which, it should be noted, are consistent with the recommendations of the family report writer.
The procedure in the Court
Although it might not in some senses be thought wholly necessary,
I think it is appropriate to note the way in which the matter proceeded. The applicant’s solicitor filed a notice of withdrawal as lawyer on
25 July 2011. The applicant attended unrepresented but with the assistance of an Arabic interpreter. Counsel for the respondent mother very properly drew the Court’s attention to this circumstance, and I invited the father to indicate whether he wished to adjourn to get different legal representation. He declined that invitation.
I inquired of the father as to whether he wished to ask any questions of the family report writer, and it emerged that it was not clear whether he had ever had it read to him or whether he recalled it if that had occurred. Accordingly, I stood the matter down to enable the family report to be reinterpreted to the applicant. Following this, I offered him again the possibility of an adjournment but he indicated a desire to proceed.
The agreed facts
The father was born in Lebanon [in] 1984, and migrated to Australia on 9 September 2004. He met the mother in 2004. She was born [in] 1988, and the parties became engaged [in] 2005 and were married [in] 2006.
There were disputes between the parties as to what happened during the marriage, but it is clear that they separated in about late 2008
(the only formal indication of separation is 14 October 2008, set out in the initiating application). The mother says separation took place a week after a return to Australia, which the husband says took place on
25 September 2008.
It is common cause that the father did not see his son from about April 2009 until the institution of Court orders for the resumption of such time on 24 August 2010. [X] has spent time with his father since then, although there is a dispute as to how much.
The Court made orders on 1 June 2011 to extend the father’s time with the child but on 9 June he left for Lebanon and did not return until
9 August 2011.
The mother re-partnered in about June 2009 and has since remarried, and indeed has had another child with her new husband.
The father’s evidence is that he has become betrothed during his recent visit to Lebanon and that he proposes to marry in due course when his fiancée’s spouse visa is made available.
Matters in dispute
It is the father’s case that after the marriage the mother became violent and difficult. It is the mother’s case that following the marriage she was put upon by the father’s family, treated very badly, and that she was pushed and on various occasions hit and slapped, and that the father cheated on her from an early stage in the relationship.
Furthermore, the mother says that notwithstanding the orders for the child to spend time with him, the father often failed to attend or was late, charges which the father refutes.
In cross-examination of the father, he was pressed as to why it was he returned to Lebanon so shortly after having orders extending his time with his son. The father said that this was because his mother was sick and that he needed to be with her at that time. He denied any suggestion that the betrothal was in the wind, so to speak, before he left. He said he met the lady concerned when she came to visit his mother.
There is a further issue in the case as to the extent of the father’s depression. Exhibit MT1 to the father’s second affidavit shows that on
14 February 2011 he was suffering from depression. He said he is now still receiving assistance in the form of counselling, but denied being on any medication.
The mother also puts in issue the father’s capacity to care for the child. She says that when the child returns from time with the father (albeit that it is not a very lengthy period of time) the child is sometimes ravenously hungry, and has not been toileted. The father denies this (although he admits that he himself is not a cook) and says that his sister, with whom he lives, cooks for him and for the child when he is with them.
The father’s sister has not been called as a witness. It should be noted that although, given the father’s self-representation, there is no room for the operation of the doctrine in Jones & Dunkel, nonetheless the Court has not had the benefit of any evidence she might have been able to give.
The father asserted to the Court that he had completed the parenting course he was ordered to attend by the orders made on 25 November 2010. It emerged in cross-examination, however, that he has completed only one session of a three session course.
Findings about the matters in dispute
The father’s demeanour throughout the proceeding seemed, understandably enough, somewhat anxious, entirely consistent with the fact that he is still depressed. This is not a purported endeavour by the Court to make a medical observation (for which clearly it is not qualified) but rather a simple observation that he seemed somewhat worn down by things and had a sad demeanour.
Notwithstanding this, the fact is that the father gave a number of responses which were evasive and unconvincing.
His answers to the questions about the state of his mother’s health were unconvincing, albeit that I fully accept that she is in poor health. The father described his mother as having “various afflictions” and I have no doubt that this is so, but he did not articulate a single one of them such as to suggest that his immediate return to Lebanon was required in early June. It is far more probable than otherwise that he went back there with a view to the impending betrothal.
The father, as I have said, told the Court initially that he had completed his parenting course when it rapidly became apparent under cross-examination that this was not the case.
The father’s evidence about the incident in which his car had collided with a car in which the applicant and, as he conceded, his son were occupants was likewise vague and unconvincing.
The mother was at times extremely voluble in her evidence. She was clearly eager to say what she had to say and, unlike the father, she did not suffer the significant disadvantage of not being fluent in English.
Nonetheless, and allowing for a certain measure of hyperbole, the mother’s evidence was given with conviction, and I believe it.
I accept that the father treated the mother badly in the sense that he subordinated her to his relatives while they were living with him.
I accept that when she failed to accord with his wishes he pushed her around and on occasions he did slap her.
Whether this was to the extent described by the mother is open to doubt, but I have no doubt, given the sincerity of her evidence and her demeanour, that she was telling the truth.
I also accept that the mother is telling the truth when she says she does not want to stop the father seeing the child but that she has genuine reservations about his capacity to cope with the child for extended periods of time.
The evidence about the child’s recent return, being ravenously hungry and having to dash to the toilet, was entirely believable but I do not necessarily think it goes so far as the mother takes it. It is not unknown for children of such a young age to require suddenly to go to the toilet, and equally it is not unknown for little children to become very hungry, even if they have been relatively recently fed.
I note that at the time the mother saw the family report writer she said (paragraph 37):
“She indicated no major difficulties or concerns with his basic parenting skills.”
That view appears to have been qualified by more recent events, but the fact is that is what she said late last year.
The family report
The report of Dr R is dated 4 November 2010. She made a number of telling observations. The first was that the father simply failed to attend on the occasion of his first appointment with her. At paragraph 26, she recorded:
“Mr Terry acknowledged his failure to keep his initial appointment with the writer on the 13 October 2010, and this had occurred as he had forgotten to remind his sister to wake him.”
It should be noted that Mr Terry denied this account of the events and merely said that he had been somewhat late on the day. It was not entirely clear whether he was asserting he had not said this to Dr R but in any event, Dr R’s account speaks for itself and is contemporaneous and clearly correct.
I note further that in paragraph 28, Dr R recorded the father had difficulty describing a routine that would assist a child of [X]’s young years.
Dr R also recorded at paragraph 29:
“He acknowledged [X] was presently too young to participate in Ramadan, and felt attending mediation with the mother when [X] was older would be more appropriate in gaining an agreement they were both in agreement with.”
The tenor of Dr R’s report strongly suggests that the father, by virtue of his inexperience in child-rearing, does not have very developed skills in this regard.
Dr R recommended unsupervised time with [X] each Wednesday from 4.00 pm till 7.00 pm, and from Saturday 10.00 am until 1.00 pm in week 1, and Sunday from 10.00 am till 1.00 pm in week 2, for four months, then increased to from 10.00 am till 5.00 pm, provided that the father sought medical assistance for his various depression-related difficulties.
Conclusions
It should be noted that despite the earlier concerns, both parties have agreed that the extant watch-list order should be removed and that [X] should be permitted to travel to Lebanon with either parent should they so wish. That order will be made.
Despite some debate during the currency of the hearing, it seems clear to me that changeover should continue to take place at the mother’s parents’ house rather than the mother’s house. This gives the mother peace of mind, and the additional travelling, looking at the map, does not seem to me to be excessive for the father. I note that it is his position that he is not working and it is difficult to see why he should ever be significantly late given that he has no work commitments to attend to.
While I accept that the father may have been late on various occasions, it is not possible for me to accept that he has been as late as the mother asserts, or as insouciant as to seeing his son as she asserts. After all, he has pursued his claim through to trial, and maintained it throughout.
Nonetheless, the father’s abrupt departure in June 2011, for reasons that I have failed to entirely accept, suggests that his concern about his son waxes and wanes. I accept that he loves his child, but it does seem that through immaturity or for other reasons, there are times when [X] is not, as he should be, at the absolute forefront of his father’s mind.
In circumstances where the father’s parenting skills are as I find very undeveloped, and where he has done but little to seek to improve them (he has still not completed the parenting course despite having had many months to do so), I think that the mother’s concerns, which are consistent with the recommendations of the family report writer, are to be sustained.
Nonetheless, it should also be noted that criticism of a non-custodial parent’s parenting skills in circumstances where they have not been living with the child for a very significant part of the child’s life, and certainly not at all more recently, needs to be seen in context. It is axiomatic that parenting is something all parents have to learn by trial and error when their first child arrives.
Given that the mother says, and I accept, that she is keen for the father to spend time with the child and to have a good relationship with him, and given that that is the father’s position also, thought must be given to the gradual increase in time spent.
[X] is not going to go to school until 2013. That is over a year away.
I am keenly conscious of the desirability of not fomenting further litigation, but in view of [X]’s age and the fact that both parties want the father to have a good and sustained relationship with him, I think that the preferable course is to adjourn these proceedings until late 2012, at which time the parties can revisit what further arrangements might be made.
The father should clearly understand that the future is in many ways very much in his own hands. If he behaves respectfully to the mother and minimises any conflict with her, and if he does indeed spend time with the child as he says he wishes to, and if he addresses the parenting issues that are quite properly raised by the mother, then it is more probable than otherwise that an extended regime of time will be imposed by agreement.
If, however, he continues to fail to attend in a timely way when he is due to spend time with the child, if he is disrespectful or abusive of the mother, and if he fails to address the parenting concerns she has identified, then doubtless further dispute will continue.
It would be wholly premature to speculate as to what the outcome of any further litigation might be, but I am not prepared to rule at this stage in effect that [X] never spend overnight time with his father. It makes obvious sense in my view to review this matter in the manner I have indicated.
I have not set out in any way in these Reasons for Decision the statutory pathway that the Court is obliged to consider in parenting cases. I have, of course, had regard to the objects of the legislation and the terms of s.60CC of the Family Law Act 1975 (“the Act”). Nonetheless, given the areas of dispute between the parties and their minimal (in the scheme of things) nature, it is not in my opinion appropriate to wallow seriatim through each and every item in s.60CC(2) and (3).
The only final point I should make is that given that Dr R’s report suggested the shorter periods of time only for a four-month introductory period, and given the that orders made in June already expanded the father’s time in any event, in my opinion it is entirely appropriate to re-establish the orders made in June 2011, albeit that their operation has been interrupted by the father’s visit to Lebanon. There will be orders accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 16 September 2011
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