Tinkler and Newsome

[2016] FCCA 3179

FEDERAL CIRCUIT COURT OF AUSTRALIA

TINKLER & NEWSOME [2016] FCCA 3179

Catchwords:
FAMILY LAW – Interim parenting – high conflict – child burdened by adult issues – child psychologically vulnerable.

Applicant: MS TINKLER

Respondent: MR NEWSOME

File Number: DGC 3011 of 2009

Judgment of: Judge Harland

Hearing date: 21 November 2016

Date of Last Submission: 21 November 2016

Delivered at: Dandenong

Delivered on: 21 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Harris

Solicitors for the Applicant: Lennon Mazzeo

Counsel for the Respondent: Mr Phaedonos

Solicitors for the Respondent: Borchard & Moore

Counsel for the Independent Children's Lawyer: Mr Kent-Hughes

Solicitors for the Independent Children's Lawyer: Robert Halliday & Associates

ORDERS

1. The proceeding is adjourned for final hearing on a date to be allocated by Judge Baumann in the call over listed on 20 February 2017 at 9.30am in Dandenong.

2. The child X born (omitted) 2006 (“the child”) spend time with the father.

3. There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 21 November 2016 (“the minute”) and:

   (a)The minute be placed on the Court file;

   (b)The solicitors for the applicant engross the minute and deliver a clean, certified, electronic copy of the minute (“the copy”) to the Chambers of Judge Harland by way of email to [email protected] within seven days; and

   (c)Upon delivery of the copy to the Court, the within orders be extracted and the copy be attached hereto.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3011 of 2009

MS TINKLER

Applicant

And

MR NEWSOME

Respondent

REASONS FOR JUDGMENT

1. 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.

2. I have competing interim applications before me with respect to the parenting arrangements for X born (omitted) 2006, who is aged 10.  Some issues have been agreed to including that the parties will each undergo a psychiatric assessment by an agreed psychiatrist or as nominated by the independent children's lawyer (ICL), and will also engage with Ms B for family therapy.  I have been advised that this cannot happen until March 2017, but that other family therapists were not able to start until later than that.

3. The primary issue in dispute before me this morning is whether or not the father’s time should be reduced.  There is some agreement by the parties that it would make sense to consolidate the father’s time – which currently occurs on alternate weekends:  in week 1, from Friday to Monday, and in week 2, from Wednesdays to Fridays – so that there is one block period. 

4. It is the mother’s position that that block period should be four nights from Monday until Tuesday each alternate week.  The father’s position is that he is flexible about the start and end time of the period, provided that he has a five-night block as he does currently.  The ICL’s position is that the father’s time should be reduced to four nights a fortnight, but also agrees that the one block period would be appropriate.

5. I have real concerns about X’s welfare in this matter.  There are a lot of things that are unknown in this matter currently, despite that the parties and the Court have the benefit of a family report from an experienced family report writer.  One thing that is clear is that X is a child who is under an enormous amount of stress and that X is experiencing a lot of anxiety.  What is not clear is where that comes from.  There may be a variety of contributing factors. 

6. It is pretty clear from reading the parents’ material and also from what they have each said to the family report writer that they see the other parent as being responsible for X’s difficulties.  One of the things that was very concerning about the family report was the unusual nature of the presentation of X to the family report writer in terms of the number of comments that X made, where he also referred to not being able to quite remember what allegations he had made. 

7. The family report writer stated that she could not get to the bottom of who is responsible for that and how these have come about.  I do not see it as being as simple as the parents would have it in terms of laying responsibility at the other’s door.  I say this even having read the psychologist’s reports, including the report that was handed up this morning – which I will mark as exhibit A – from X’s treating psychologist. 

8. What concerns me is that whilst I accept that the psychologist who is reporting X being under stress and expressing being concerned about what his father will say and how his father will react and that his father gets angry at times, it is also clear that X reports enjoying time he has been spending with his father, particularly when they have gone to the snow and engaged in other activities.

9. It is also clear is that one if not both parents – and they, again, each blame the other for this – have been talking to X about the proceedings and about the fact that this matter is in Court.  It is incredibly concerning to me that this boy knows that this is coming to Court. 

10. X knows that the mother is seeking orders for a holiday and concerned about the dad blocking that.  That raises concern to me that mother is talking to this child about these issues.  It may well be both parents.  But why does he know about a holiday that there has not been any agreement about it and it has been raised? 

11. I have got real concerns about this boy’s welfare.  I suspect that the responsibility tends to lie in both parents, not just one.  But what is clear too is that he enjoys time with his dad when he does not feel under pressure.  There is a real possibility if it goes on the way it is that X is going to become more seriously mentally unwell.  I see both parents nodding away at some of the things I am saying and each is, no doubt, thinking, “she’s really talking about the other parent and not me.”

12. I address my concerns to both of you and say to both of you that you need to take some responsibility but also need to start protecting X from the conflict.  He should not know when this matter is in Court. He should not know about disagreements that the parents are having about holidays or otherwise.  This is not all one-sided.  It is clear to me from the family report, the things that he has said, this little boy is under an enormous amount of pressure. 

13. X may well be an anxious child in any event.  But there is a real risk of him suffering long-term mental health issues if there is not some sort of circuit-breaker for this boy.  It is also clear too that this is not a matter where he should not be having time with his dad.  He loves his dad.  He has a good time with his dad.  I suspect both parents have been talking to X about court and adult issues because of the kinds of things he says in these reports.  He needs the break from his parents’ conflict and the burden adults placed on him.

14. I am certainly hopeful that family therapy can assist in that regard.  Ms B is a very experienced family consultant and family therapist.  I would have concerns if I was simply to reduce the father’s time that it may send some sort of negative message to X about his father.  I cannot be satisfied on the evidence that the difficulties are all down to the father.

15. I have got some concerns that the mother tells the family report writer there is nothing redeeming about dad, not a thing.  She could not say one positive thing about the father as a parent.  I am sure that X knows that that is what his mother thinks about his father. 

16. I am sure the mother would prefer that the father just went off the scene.  She has remarried, she has got a new family unit.  She needs to be aware that saying these things to a family report writer may prompt the court to question what things she is also saying to X, who seems to be very, very aware of everything that is going on, including court proceedings?

17. As far as the father is concerned, he says it is the mother. X is in the mother’s primary care.  And I suspect that this child is painfully aware (literally painfully, he is not sleeping and anxious) because he knows that his parents cannot stand each other and do not really want him to spend time with the other parent. 

18. And one thing that X is going to realise if he does not already (he will as he gets a bit older) that he is made up of both his parents, he comes from both of them.  So if the parents keep sending X the message that they dislike the other parent, X may feel that they do not like a part of him. I do not suggest that they are doing it deliberately. If the parents think that X is not aware of how they feel about each other they are mistaken. If they continue then they will do him real long-term psychological damage.

19. In my view, there should be one block period of time with the father because, I think, one of the problems that X has is the transitioning between households because of the level of conflict and the level of distress that he is feeling for whatever reasons, and may well be a variety of reasons.  He also seems to be expressing some stress about school as well.

20. As I said previously, it is clear that X has a good time with his father.  The father is able to provide things of value to X as clearly the mother does.  Something has got to change before there is long-term damage to this boy as he goes into his teenage years and as he becomes an adult. 

21. The dispute now really comes down to a night a fortnight, which in the scheme of things might not seem like much.  The ICL’s position supports the mother’s position, which is to reduce the time to four nights a fortnight.  The shared arrangement is just not working for this boy.  This is not about saying that is because X is at risk in his father’s care; it is because there is so much conflict.

22. The other issue that comes out of the material is that he is already finding school kind of difficult, and X talks about feeling embarrassed and talks about problems with his friends. 

23. The other issue that is in dispute is with respect to the mother’s application to go on a holiday to (country omitted) with her family and X in January 2017.  Initially, the mother was also seeking holiday time in July to travel to (country omitted). She is not pressing that.  The father has also raised that he would like to be able to take X to (country omitted), which is where both parents are from. 

24. The father expresses concerns about whether or not the mother would return with X.  But, really it is the lack of trust and the lack of goodwill between the parties that causes him concern in the context of him not having any time earlier this year after some allegations were raised.

25. It is clear that X is aware – and this is apparent from exhibit A – that his mother wants to be able to take him on a family holiday and that the concern is that the father will stop it.  So one issue of concern is how X would react if he did not get that holiday. If I decided he should not go it is likely that he would blame the father because he is aware of this dispute.

26. It is also clear that X is talking about wanting to have a break with his family.  There is no doubt that, generally speaking, as the ICL points out it is a good thing for children to have the experience of an overseas family holiday.  I am concerned that X seems to know about this holiday and knows about the conflict about this holiday and he is worried that he might not be able to go.  That is concerning because that should not be a burden for him.

27. There was another issue in exhibit A that caused me some concern, which is an example of the pressure that he is under, from both parents at the end of the one week time he had had with his father in September, X spoke about his father wanting him to stay an extra night.  X expresses some concern about whether he wanted to do that or not.  He spoke to his mother.  And X reports to the psychologist that his mother said, “it’s up to you.” 

28. The issue there is, if what X is saying is right, is that he cannot be the decision maker.  He cannot make that choice, because he just feels in a really terrible position:  he upsets dad or he upsets mum no matter what he does.  This is a burden he should not have.

29. So I do not think this is a scenario where, currently, the parties can do anything other than exactly what is in the orders, because they have got to protect X from feeling like he is in any way responsible, that he gets to decide what arrangements happen or not, because he does not want to decide; he wants his parents to decide.  He does not want to feel the responsibility.  He deserves to be a child and to not be burdened by adult issues.

30. The issue there that I am raising of concern is not about whether or not he should spend an extra night with his dad but about him being in the middle of that very issue.  That is the concern that I have for this young boy. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  8 December 2016