Vine and Vine (No. 2)

[2018] FamCA 144

FAMILY COURT OF AUSTRALIA

VINE & VINE (NO. 2) [2018] FamCA 144

FAMILY LAW – CHILDREN – With whom a child spends time – Special occasion – Best interests of the child – Where the mother seeks that the child spend extra time in her care over the weekend of a special occasion, being her wedding – Where it is agreed that the child will benefit from attending the wedding – Where the father is opposed to overnight time.

Family Law Act 1975 (Cth) ss 60B(1), 60CA, 60CC(2), 60CC(3), 62G(2)

APPLICANT: Ms Vine

RESPONDENT: Mr Vine

FILE NUMBER: ADC 638 of 2013

DATE DELIVERED: 9 March 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That orders made 29 January 2018 be suspended between … 2018 inclusive.

2. That during the period of suspension X born … 2006 spends time with the mother as follows:-

   (a)From 12 noon to 8 pm on … 2018 PROVIDED that the mother shall facilitate X telephoning the father at 7.30pm to indicate whether he would wish to spend overnight with the mother (NOTING that if he wishes to leave, the mother will make arrangements for X to be returned to the father’s care and that if he wishes to stay, X will stay at the home of the maternal grandmother);

   (b)That if X elects to return to the father’s home on … 2018 THEN from 10 am to 9 pm on … 2018 PROVIDED that the mother shall facilitate X telephoning the father at 8.30pm to indicate whether he would wish to spend overnight with the mother (NOTING that if he wishes to leave, the mother will make arrangements for X to be returned to the father’s care and that if he wishes to stay, X will stay at the home of the maternal grandmother);

   (c)That if X elects to return to the father’s home on … 2018 THEN from 10 am to 8 pm on … 2018 PROVIDED that the mother shall facilitate X telephoning the father at 7.30pm to enable X to indicate whether he would wish to spend overnight with the mother (NOTING that if he wishes to leave, the mother will make arrangements for X to be returned to the father’s care and that if he wishes to stay, X will stay at the home of the maternal grandmother); and

   (d)       From 10 am to 6 pm on … 2018.

3. That should X become distressed or upset and the mother is not able to console him or resolve the issue she will forthwith contact the father and the mother will make arrangements for X to be returned to the father’s care.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vine & Vine (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 638  of 2013

Ms Vine

Applicant

And

Mr Vine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The proceedings are between Ms Vine (“the mother”) and Mr Vine (“the father”) regarding the future parenting arrangements for X born in 2006 (“X”), Y born in 2008 (“Y”) and Z born in 2009 (“Z”) (collectively “the children”).

2. The parties married in 2002 and separated on 16 February 2012. The parties were divorced in 2013.

3. The parties were not able to reach agreement as to the ongoing parenting arrangements for the children.

4. Each of the parties has re-partnered. The father continues to reside with Ms T and the mother with Mr S.

5. Unable to resolve their differences, the mother filed an Initiating Application on 18 March 2013. The final orders were made by consent on 16 August 2016. They provided that the parties have equal shared parental responsibility for the children, but that the father have sole parental responsibility with respect to X’s education and the mother have sole parental responsibility with respect to the education of Y and Z.

6. It was agreed that X would live with the father and spend time with the mother from the conclusion of school on Wednesday until the commencement of school on the following Monday. Y and Z would live with the mother and spend time with the father from the conclusion of school on Wednesday until the commencement of school on Monday.

7. The orders provided for differing but substantial block time for the children to spend with each of the parties during all short and Christmas school holiday periods.

8. The consent orders were comprehensive of arrangements during special occasions, handover, communication, health, travel and specific issues.

9. The final orders were of limited assistance in resolving the parenting dispute between the parties.

10. By Initiating Application filed 27 July 2017 the mother sought final orders that X spend time with her pursuant to orders 10 and 14 of the consent orders.

11. Whilst the application seeks final orders by way of enforcement, the gravamen is to be observed by reference to the interim orders. The mother seeks in the interim that orders 10 and 14 be suspended and until further order X spend time with her on a gradually increasing basis.

12. There is a recognition by the mother that her relationship with X is fractured and the provisions relating to X as contained in the final orders are no longer realistic.

13. The father filed a Response on 17 August 2017 seeking the discharge of orders 2 to 8 and 10 to 18 of the consent orders and that he have sole parental responsibility for X, equal shared parental responsibility for Y and Z and that X spend limited time with the mother, but Y and Z to spend time with the parties on a week about basis.

14. A focus of the father’s orders is to restrain Mr S from being present when X is in the mother’s care.

15. The mother seeks interim orders in terms of paragraphs 3.2 and 5 of her application.

16. The father resists an overnight period but proposes that X spend time with the mother each alternate Wednesday from the conclusion of school until 5.30pm provided that Mr S is not present.

17. The mother is to marry Mr S in early 2018.  She seeks the following order:-

    (5)That the father do facilitate the child [X, Y and Z] attending the mother’s wedding from 12.00-noon on … 201[8] until 6.00pm …2018 NOTING THAT pursuant to the Orders of 16 August 2016 the children [Y and Z] will be in the mother’s care for between … 2018 to …2018.

18. The focus therefore is on X’s time with his mother for the period before the wedding, the ceremony, reception and subsequent involvement with friends and family.

19. The father is prepared for X to attend the wedding ceremony and reception on provided that X is supervised by the maternal grandmother at all times.

20. The current arrangements for X are determined by orders made 29 January 2018:-

    1.That until further order X shall spend time with the mother as follows:-

    (a)Each Tuesday from the conclusion of school (or 3 pm if a non-school day) to 7.30pm;

    (b)Such other period as the parties agree taking into account the wishes of the child PROVIDED that the time the child spends with the mother pursuant to these orders be taken in the absence of [Mr S] (the mother’s partner) SUBJECT to agreement of the parties.

21. On 2 March 2018 judgment was reserved in relation to the arrangements for X to attend the mother’s wedding and accompanying celebration with the balance of the interim proceedings adjourned to 23 May 2018 following the preparation of a family report to be prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).

22. The dispute between the parties highlights their diametrically opposed perception of the level and extent to which X is comfortable in the mother’s care.

23. Whilst the parties present their separate proposals in respect of X with force, ultimately the Court is likely to be significantly assisted by an updated family report given that X is currently 12 years of age. Assistance will also be provided in respect of the ongoing arrangements for Y and Z.

LAST FAMILY REPORT

1. On instructions from the Independent Children’s Lawyer (“ICL”), Ms R, psychologist, prepared a report dated 11 August 2016 in preparation for the trial.

2. The report was directed to the parenting arrangements for X.

3. X expressed a clear preference to reside primarily with his father. His view is summarised in the following remarks from the report:-

   He always felt happier living with [the father], had told everyone his views so many times but no one listened. His greatest worry was that he might have to live full time with his mother.

4. X did not think that it would ever work out for him living primarily with his mother, but he could manage four to five days preferably to coincide with a weekend.

5. In relation to Mr S, X reported as follows:-

   …his relationship with [Mr S] was more problematic than in the past and referred to a couple of incidents of conflict, where [Mr S] had kicked in the bathroom door and pulled him off his motorbike by his helmet strap. He argued more with his mother in [Mr S’s] absence as he felt a ‘bit scared of him’.

6. In 2016 X was clearly struggling at school. His school principal reported that his behaviour was challenging, that he would not listen nor engage in work. It was of concern that X was becoming aware of the “widening gap in his learning when compared with his peers and in response had reported that he was bored and angry.”

7. A change of school appeared to have provided some relief in that he had developed a friendship group, but his aptitude and application to his educational requirements was significantly diminished.

8. Ms R summarised X’s predicament as follows:-

   While I do not hold the view [X] is of an age or maturity level to make the ultimate decision regarding his preferred living arrangements, there is the potential for further escalation of emotional/behavioural difficulties if his preferred arrangements are not given consideration. At the most recent interview [X] was not insistent he wanted to live full time with his father, rather proposed living primarily with his father and his mother for 4-5 days per fortnight. If this option was considered it would require [the father] demonstrate support for [X] spending time with [the mother] according to court Ordered arrangements. [X’s] time spent with his brothers needs to be prioritised within both households.

9. Ms R observed that X’s current presentation may well be adversely influenced by the inter-parental conflict between the parties.

WEDDING ARRANGEMENTS

1. The mother would like X to spend time with her for the entirety of the wedding weekend. She considers it important that X be a part of the pre-wedding arrangements, the wedding and reception and then to be able to spend time with friends and family many of whom have lost effective contact with X over the course of the litigation.

2. The mother provides a history of X enjoying his time in her care and of not demonstrating any fear or concern in relation to Mr S. She refers to two occasions when Mr S was present with the father’s knowledge. In particular, she refers to X “happily chatting to [Mr S]”.

3. The father’s Affidavit of 27 February 2018 presents a very different assessment of whether X would cope with extended time in his mother’s care.

4. He reports on alleged comments by X that his mother became angry with him to the extent where he became so frightened that he asked to get out of the car and walk home.  The father reports that the mother continues to talk to X about the proceedings and that X feels in part responsible for the ongoing conflict between his parents.

5. The father considers that the mother’s conduct in pursuing an application for X to spend extended time in her care has had an adverse impact on his education.

6. Specifically, the father remains “strongly opposed” to X spending overnight time predominantly because he perceives X as not wishing to do so, but also considers that extended time would potentially expose the children to increased risk of aggressive conduct by X and/or Mr S.

PARENTING CONSIDERATIONS

1. The issue between the parties is narrow. Nonetheless, I still have regard to the provisions of s 60CA of the Act that requires I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).

2. I bring to account the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3) and am required to give greater weight to the need to protect the child than other factors.

3. It is appropriate for the Court to adopt a cautious approach when considering interim arrangements pending evidence being heard or the Court being further assisted by a family report.

4. The parties agree that X should agree the mother’s wedding. They are not able to agree the terms and conditions of his attendance.

5. The father is sceptical about the benefit to X of attending the wedding, although I attribute much of the father’s concern to his overarching dislike and mistrust of Mr S.

6. The 2016 family report brings to account the same issues that are currently under consideration. X is concerned in respect of Mr S, but not to the extent that he considers Mr S should be absent from the mother’s home when he spends time there.

7. X clearly wishes to remain residing in the primary care of his father, but was prepared to readily agree to spending significant time with his mother.

8. The mother recognises that a cautious approach must be adopted and as such seeks ongoing orders that would include one overnight a week.

9. X is now 18 months older and if he is prepared to express a view as to his ongoing parenting arrangements it may attract significant weight.

10. To a substantial degree the parties instinctively understand that it is unlikely X can be forced to spend more time with the mother than he would wish. His behaviour can at times be defiant and difficult for the parties, but in particular the mother to manage.

11. The assertion by X to Ms R that if he was made to live primarily with his mother he would consider leaving her premises and returning to the father is unlikely to be an idle remark.

12. There is merit in the orders that the mother seeks. X will benefit from being at his mother’s wedding. It is unlikely to be a detriment to X that he spends time with his siblings, or indeed with extended family particularly cousins that he has not seen for some time.

13. Whether X will be overwhelmed by the wedding preparation, reception and subsequent celebration is an unknown but it can be ameliorated by X ringing his father at the conclusion of each of the days nominated by the mother and telling him whether he wishes to return to the father’s care.

14. The father has indicated a preparedness to assist X in being transported to and from the wedding arrangements.

15. I propose to order that X attend the mother’s wedding on each of the days as nominated by her, but whether he stays overnight will be a matter for X to determine by telling both his mother and his father by telephone of his attitude.

16. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 March 2018.

Associate: 

Date:  9 March 2018