TURNBULL & TURNBULL

[2014] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

TURNBULL & TURNBULL [2014] FCCA 2606

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975, ss.11F, 62G, 60B, 60CC, 65DAA

Applicant: MR TURNBULL

Respondent: MS TURNBULL

File Number: PAC 4597 of 2014

Judgment of: Judge Dunkley

Hearing date: 30 October 2014

Date of Last Submission: 30 October 2014

Delivered at: Parramatta

Delivered on: 14 November 2014

REPRESENTATION

Solicitors for the Applicant: Ms Smart (amicus curiae)

Counsel for the Respondent: Mr Dura

Solicitors for the Respondent: Macpherson & Kelley Lawyers

ORDERS PENDING FURTHER ORDER

1. The parties shall have equal shared parental responsibility for X born (omitted) 2010.

2. X shall live with her mother.

3. X shall spend time with her father as follows:

   (a)From 6pm Sunday until 6pm Tuesday each alternate week commencing 23 November 2014;

   (b)From 6pm Friday to 6pm Sunday each alternate week commencing 14 November 2014; and

   (c)At such other times as the parties agree.

4. To facilitate Order 3 unless the parties otherwise agree:

   (a)For periods that start on a Sunday the father shall collect X from the mother’s home.

   (b)For periods that end on a Tuesday the mother or her nominee shall collect X from (omitted) Early Learning Centre. 

   (c)For periods that start on a Friday the father or his nominee shall collect X from (omitted) Early Learning Centre.

   (d)For periods that end on a Sunday the father shall return X to the mother at the mother’s home.

5. Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of X nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.

6. Each party shall keep the other advised of any medical or allied health care treatment received by X whilst in that parties care within 2 hours of such treatment being received including the name and address of the treating professional and details of the treatment.

THE COURT FURTHER ORDERS

1. The parties shall provide a copy of these Orders to (omitted) Early Learning Centre within three days of the date hereof.

2. The parties shall within 14 days of the date hereof contact the appropriate officer at the (omitted) Family Relationships Centre so as to begin the process of referral to, and completion of, a post separation parenting course designed to improve their communication and dealings with each other about X’s parenting.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4597 of 2014

MR TURNBULL

Applicant

And

MS TURNBULL

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Turnbull (hereinafter the father) and Ms Turnbull (hereinafter the mother) are the parents of X. X is aged four. X was born on (omitted) 2010.

2. The parties separated on 11 September 2014.

3. They thereafter “bombarded” each other with text messages, in an attempt to make arrangements regarding the parenting of X.

4. On 25 September 2014 the father filed an Initiating Application and an Affidavit and convinced a Registrar that he should be given a shorter return date for his application than usual. His Application was listed for a first Court date on 29 October 2014.

5. Prior to filing his Application the father had sought to engage the mother in Family Dispute Resolution and she had refused to participate.

6. The mother filed a Response and a number of Affidavits on 27 October 2014.

7. At the directions hearing on 29 October 2014 the parties were directed to attend a Child Dispute Conference pursuant to s.11F of the Family Law Act 1975. 

8. As a result of that conference the Family Consultant reported that some of the issues impeding resolution were as follows:

   ·    The parties were in dispute about the father’s relationship with X.

   ·    The mother was not prepared to enter into a discussion about when it would be suitable for X’s time with her father to be progressed or what the progression should be. She was adamant that overnight time would not occur in the near future and that X needed an unidentified amount of time to adjust to the current orders.

9. The Consultant also noted:-

   This conference has raised significant concerns about the impact of the parental conflict on X and the potential for it to undermine X’s relationship with her parents. It is recommended that these parents attend Family Therapy to assist with the parental conflict, adherence to orders and progression of X’s time with her father.

10. After returning from the Child Dispute Conference insufficient time then remained for an Interim Hearing and the case was listed for Interim Hearing on 30 October 2014. The father sought at the Interim Hearing more than twenty interim parenting orders including:

    The mother is restrained from conveying to the child either verbally or non-verbally or from permitting any other person to convey to the child, that the mother is disappointed or upset with the father or the mother is disappointed or upset because the child is going to spend time with the father or because the child has spent time with the father.

    And:

    Each parent is to facilitate the child taking the child’s belongings including clothes and toys freely between the parents respective residences.

11. The representative for the father was unable to elaborate how either of those orders could be implemented or enforced if made. Many of the other orders did not necessitate an interim determination and were perhaps indicative of a person who sought to unnecessarily control a former partner through the guise of parenting orders.  

12. At the commencement of the Interim Hearing Counsel for the mother produced a Short Minute of Order from which it was apparent the mother had significantly modified her proposals for X’s time with the father such that if those orders were made by 30 June 2015 there would be an overnight period with the father.

Issues

1. The issues to be determined at the Interim Hearing were:

   ·    What order for parental responsibility would be in X’s best interest?

   ·    With whom should X live?

   ·    What time should X spend with the parent with whom she was not living? 

   ·    What if any ancillary orders should be made?

Chronology

(omitted) 1975	Mother born
(omitted) 1979	Father born
(omitted) 2009	Parties marry
(omitted) 2010	X born
11 September 2014	Parties separate
25 September 2014	Father files Initiating Application and obtains short notice court date
27 October 2014	Mother files Response
30 October 2014	Interim Hearing

1. On 30 October 2014 a Family Report was ordered pursuant to s.62G of the Act and the case was listed for further directions consequent upon the release of the Family Report on 21 August 2015.

2. The Interim Hearing was conducted in the usual way that is “on the papers” and with submissions from each of the parties’ legal representative.

3. Submissions made by the father’s legal representative were long and ultimately ceased to be helpful and using the powers within Division 12A of Part VII of the Family Law Act 1975 the “right” of the father’s representative to make further submission was terminated, so as to prevent the interim hearing becoming part heard. As it was the case finalised so late and such was the volume of material to be read that the decision was reserved. Much of that material was ultimately irrelevant text messages between the parties and irrelevant correspondence between the parties and their legal representatives.

Determination

1. Interim Orders must be informed by the objects set out in s.60B of the Act.

2. Orders made must have as their paramount consideration the best interest of X.

3. In deciding what is in X’s best interest the factors set out in s.60CC(2)(2A) and (3) must be considered.

4. As well as being in X’s best interest Orders must also be reasonably practicable.

5. Both parents have demanding jobs, at which they work hard and for long hours.

6. The father works as a (occupation omitted) in the Central Business District of Sydney.

7. The mother is an (occupation omitted) for the Australian arm of a multinational company. Her work place is at (omitted).

8. Both earn in the low $100,000’s so finances are not an issue for them.

9. X attends (omitted) Early Learning Centre Monday to Friday of each week. That centre is open from 6.30am to 6.30pm.

10. The father lives at (omitted).

11. The mother lives at (omitted).

12. From time to time when the parties were living together the mother’s work took her interstate overnight on business and on some of these occasions the father had the care of X.

13. The father from time to time has received professional assistance to deal with issues of stress and anxiety.

14. While the parties were together the father had some periods of unemployment. During these times X remained enrolled at and attended her day care even though the father was otherwise available to care for X.

15. The father seeks an order for equal shared parental responsibility.

16. The mother is silent as to the order to be made but in submissions her Counsel conceded there was no evidence that would prevent the making of such an order. It seemed she was silent in an attempt to dissuade the Court from a consideration of an equal time arrangement that must legislatively be considered if such an order is made. This type of “legal game playing” does nothing to assist Courts in the difficult task of determining interim parenting arrangements.

17. Given X’s age she is likely to need medical intervention by way of routine inoculations prior to the commencement of kindergarten. X is expected to commence kindergarten at the beginning of 2016. So, decisions will need to be made next year as to X’s school enrolment.

18. Decisions of this type are important for X’s future welfare and both parents should be involved in this decision making even though their ability to co-operatively co-parent since separation has been minimal. It is an agreed fact that there was no family violence in these parties lives during their time together.

19. Both are, I would assume because of their employment, intelligent and able to communicate. Although they seem at the moment to by choice not be good communicators. Notwithstanding this for the above reasons an order for equal shared parental responsibility pending further order will be in X’s best interest.

20. Having made that order I must then consider, pursuant to s.65DAA whether an equal time parenting order would be in X’s best interest and if I determine not I must consider whether X spends substantial and significant time with each of the parents would be in the best interests of X and consider whether X spending substantial and significant time with each parent is reasonably practicable.

21. Until the parties separation they shared X’s care and made arrangements for her care which from time to time had X solely supervised and cared for by one parent.

22. A central component of the father’s case is that the mother is attempting to turn X against him. The father in paragraph 9 of his Affidavit sworn 25 September 2014 says:

    There is an urgent need for interim orders so I can spend regular quality time with X as I have been doing all of her life on an almost daily basis and to restrain Ms Turnbull from engaging in physical or psychological abuse of X and her turning X against me.

23. In paragraph 19 of his Affidavit sworn 28 October 2014 the father records:

    Throughout the weekend Ms Turnbull had texted me asking to speak with X and I had initially said no because I thought Ms Turnbull would attempt to distress X. I decided to give Ms Turnbull the benefit of the doubt and so on Sunday night after dinner while we were at the park I called Ms Turnbull for her to speak with X. I had the phone on loud speaker and ready to terminate the call if Ms Turnbull became abusive during the call towards X or I. The call went as follows or words to that affect:

    X: Hello

    Ms Turnbull: Hello X

    X: Guess what? I went to the zoo and the trampoline and the swings and Nanna’s place and I saw Aunty Ms R’s cat!

    Ms Turnbull: Is Daddy coaching you X?

    X: Yes, Daddy is coaching me. We went and had dinner and now I am on the gym.

    Ms Turnbull: What? Are you at the gym? Did Daddy take you to the gym?

    Me: No Ms Turnbull she means the jungle gym.

    Ms Turnbull: (yelling aggressively) I am not speaking to you, put my daughter back on now!

    Me: Ms Turnbull that was in front of X.

    I then terminated the call.

24. Surprisingly given his criticism of the mother saying inappropriate things to X he in paragraph 20 of his Affidavit sworn 25 September 2014 records the following conversation:

    X: Where are you Daddy?

    Me: Is Mummy there with you?

    X: Mummy is beside me. You made Mummy really sad.

    Me: I did not X.

    X: Why did you leave Mummy?

    Me: Are you being coached X?

    X: Mummy is smiling now.

    Me: Goodnight X, Daddy loves you.

25. Clearly from the above each of the parties is inappropriately involving X in the parental separation discourse. X is unlikely to understand the term “coaching” but each party blithely uses it. This is indicative of and supports the Family Consultants opinion that the parents need to seek professional advice about how to support X’s relationships and adjustment to the parenting arrangements.[1]

    [1] Child Dispute Conference Memorandum – Exhibit ‘D’

26. The father is highly critical of the mother as to her capacity to feed X properly, her propensity to use physical discipline with X, her bringing X’s puppy to changeover and her unwillingness to foster overnight time and relationship for him with X, and concerning the mother’s mental health.

27. The mother for her part does not accept that the father was a capable parent. She believes that the father’s mental health affects his capacity to parent X. She believes the circumstances of his living at a home owned by his mother provides substandard housing that is dangerous to X. She does not believe X has a good relationship with the father.

28. Clearly these parties will focus on any deficit in the other party as a means of bolstering their court application. There is a “tit for tat” quality to their complaints, indicative of immaturity and immature parenting.

29. Neither is entirely focused on X and her wellbeing at this point in time.

30. There is little evidence as to X’s views and even if there was given her age little weight would be attached to those views.

31. X has two working parents who have shared her care. Both parents perceive their relationship with X to be superior to the other parent’s relationship. An experts opinion would be needed to substantiate either perception.

32. Given the parties’ propensity to be immaturely critical of the other party I cannot rely on their perceptions as to the parent/child relationship. Very little other reliable evidence is available.

33. It is likely that X has an important relationship with each of her parents.

34. Both parties in the period post separation have made some unilateral decisions with respect to X, retaining X and refusing to return X to the other parent. Both have communicated with X at times inappropriately.

35. X has experience of long periods of separation from her parents attending day care whilst they work.

36. Neither party leads evidence that X has not adjusted to her attendance at day care.

37. Both parents will need to rely from time to time on others to collect X from day care if their work hours prohibit them from getting there prior to the closing of the day care.

38. The parties’ places of current residence are about a ten minute drive from each other.

39. I am at this time unable to make any findings as to each of the parties overall capacities as a parent. An expert’s opinion will be necessary. They both however, think the worst of each other. They both squabble and act with petty disregard for X’s emotional wellbeing and expose her to their petty and somewhat pathetic squabble.

40. I conclude that currently both are unable to focus on meeting X’s emotional needs at all times. Sometimes allowing X to be caught in the midst of their disputation with each other. Neither had by the time of the Interim Hearing followed up the Consultant’s suggestion to seek out a Family Therapist to help them.

41. Since the parties separation X’s life at home has changed significantly. She does not see or spend time with both her parents regularly. A constant has been her attendance at day care.

42. Significantly less time spent with her father as proposed by the mother will impact that father/daughter relationship.

43. X is not old enough to manage for herself telephone communication with her absent parent. She is dependent on the parent with whom she is then with to help her. The father has done a poor job in this regard by monitoring and intruding into X’s telephone communication with her mother thereby provoking an angry response.

44. At X’s young age exposure to parental conflict risks the causing of emotional or psychological damage to X.

45. Both parents current attitude to the responsibilities of parenthood, that is providing a nurturing, conflict free environment for X wherein she can experience both her parents care is poor, although the father bears slightly more responsibility for this than the mother.

46. The father displays a lack of emotional maturity at times that is worrying. For example in paragraph 34 of his Affidavit sworn 28 October 2014 wherein he says he attempted to modify behaviour of the mother that was upsetting him by threatening self-harm as a technique to modify her behaviour and “I wanted to give her a taste of her own medicine”.

47. It is this lack of emotional maturity that causes me on balance when considered as part of all the other factors to conclude an equal time order would not be in X’s best interest and that X should live with her mother. On balance I consider this a better outcome for X.

48. An order that X spend two nights per week with the father will reduce X’s exposure to his emotional immaturity, reduce X’s exposure to parental conflict because of the structure certain orders provide and provide to X enough time with her father to maintain a meaningful relationship with him. As some of these nights will be on weekends and some during the week it will enable X to have time with each parent when that parent is not working and will enable them both to be involved with X's Early Learning Centre. Where possible collections or returns to X's Early Learning Centre will facilitate this and reduce opportunity for expose to parental conflict.

49. Both parents will need to provide their own clothing and toys for X as a child her age cannot be expected to carry or manage the interchange of those items as sought by the father. Not only is such an order unenforceable it is also not reasonably practicable.

50. Until parental behaviour has improved telephone communication with X will not be possible so as to shield X from parental conflict and manipulation.  

51. Both parents will be ordered to attend at the Family Relationships Centre at (omitted) to begin the process of parental education about relating to each other in a child focused way in their post separation life. Completion of those types of post separation parenting courses, if the lessons are absorbed and implemented will benefit X. They should also take up the Family Consultants recommendation for Family Therapy, although there will be no orders about this as no appropriate therapist has been identified.

52. Less rather than more parental regulation by orders post separation is likely to result in less rather than more litigation.

53. The long opening hours of X’s day care and the proximity of each party’s home to it makes the order for starting and ending periods there where possible practicable. Otherwise, delivery to the mother’s home rather than a supermarket car park make the changeovers more comfortable for X provided the parents don’t argue. Being at a supermarket car park provides no greater certainty or protection in this regard.

1. I am satisfied therefore that the above orders are both in X’s best interest and reasonably practicable until such time as a Family Report becomes available and a final hearing can take place.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  14 November 2014