WELSING & WELSING

[2019] FCCA 3546

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELSING & WELSING [2019] FCCA 3546

Catchwords:
FAMILY LAW – Parenting – where child does not spend significant time with father – where child has not expressed desire to spend more time with father – where acrimonious relationship between parents likely to be influencing factor – whether child’s view should carry significant weight – meaningful relationship with both parents – transitional orders.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR WELSING

Respondent: MS WELSING

File Number: DNC 244 of 2018

Judgment of: Judge Young

Hearing date: 21 November 2019

Date of Last Submission: 21 November 2019

Delivered at: Darwin

Delivered on: 21 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

Counsel for the Independent Children's Lawyer Ms Romeo

Solicitors for the Independent Children's Lawyer: Margaret Orwin Barrister & Solicitor

ORDERS

1. That Y spend time with the parties as follows:

   (a)From commencement of the Orders during school terms:

   (i)With the Father from after school Friday to before school Tuesday and each alternate week thereafter; and

   (ii)With the Mother from afterschool Tuesday to before school the following Friday and each alternate week thereafter.

   (b)From commencement of Term 3 2020 during school terms:

   (i)With the Father from after school Friday to before school Wednesday and each alternate week thereafter; and

   (ii)With the Mother from after school Wednesday to before school Friday and each alternate week thereafter.

2. That commencing in 2020, Y spend time with the parties as agreed for one half of the school holidays and in default as follows:

   (a)The first half of all school holidays with the Father in even numbered years and the second half of all school holidays in odd numbered years; and

   (b)The second half of all school holidays with the Mother in even numbered years and the first half of all school holidays in odd numbered years.

AND IT IS ORDERED BY CONSENT:

1. That all previous parenting Orders be discharged with the exclusion of Order 2(c) of the Orders 12 June 2019.

2. That the parties have equal shared parental responsibility for the children X (“X”) born … 2002 and Y (“Y”) born … 2008 (referred to herein collectively as “the children”).

3. That Y lives with the Mother.

4. That Orders 5 to 6 be suspended on the following days of significance, the children spend time with parties as follows:

   (a)With the Father in odd years from 5:00pm Christmas Eve to 3:00pm on Christmas Day and with the Mother in even years from 5:00pm Christmas Eve to 3:00pm Christmas Day;

   (b)With the Mother from 9:00am on Mother’s Day to before school the following Monday;

   (c)With the Father from 9:00am on Father’s Day to before school the following Monday;

   (d)For not less than four hours with each of the parties on Y’s birthday, …;

   (e)With the Mother on the Mother’s birthday in each year, being …; and

   (f)With the Father on the Father’s birthday in each year, being ….

5. That changeovers shall occur as agreed and otherwise at 5:00pm with the parent with whom the child is to recommence time spent shall collect Y from the other parent’s residence.

6. The parties shall communicate with the children to their respective mobile telephone numbers at all reasonable times.

7. That the parties will:

   (a)Communicate by text or email except in the event of an emergency when communication will be by telephone;

   (b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven days of any change; and

   (c)Advise each other of any medical or other emergency involving the children whilst in their respective care.

8. That both parties be restrained by injunction as to the following:

   (a)From denigrating the other party or the party’s partner or members of that party’s family in the presence of or within the hearing of the child and each party remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family;

   (b)From having either of the children attend at a specialist appointment without consultation with the other party;

   (c)That the children shall at all times during each school day attend at school and failing the children attending the party with whom the children are living shall notify the other party, by email or text, as to the absence and provide an explanation as to the absence;

   (d)That neither party shall take the children to see a specialist, unless that specialist appointment is recommended by a medical practitioner or medical specialist that the children are currently attending upon; and

   (e)Neither party discuss the Court proceedings in the presence of or hearing of the children or permit the children to see or view any Court documents.

9. That the parties shall at all times engage with and attend at the children’s specialist medical appointments and shall provide to the other a copy of any specialist recommendations for further treatment.

10. That the children be permitted to travel intrastate, interstate and/or overseas with either of the parties provided that the party with whom the children are traveling provides to the other party not less than 14 days written notice if interstate travel and not less than 21 written notice if overseas travel and provides itineraries, contact addresses and telephone numbers for the children when they are interstate or overseas so that the children can communicate with the other party at all reasonable times.

11. That not less than 14 days prior to any notified overseas travel, the non-travelling party provide to the travelling party the children’s passport and the travelling party return the children’s passport to the non-traveling party immediately upon the conclusion of the overseas travel, with the Mother to retain possession of the passport.

12. That a copy of these Orders authorises the children’s schools and medical practitioners to provide to each of the parties:

    (a)Copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the children; and

    (b)Copy of medical reports including any referrals, information regarding any medical condition suffered by either of the children, including treatment and any other information or material concerning the health and wellbeing of the children.

13. That each party pay the costs of the Independent Children’s Lawyer if requested to do so by the Northern Territory Legal Aid Commission in respect of these proceedings.

14. That the Independent Children’s Lawyer be discharged.

15. That all extant applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 244 of 2018

MR WELSING

Applicant

And

MS WELSING

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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. This is a parenting application about Y who is 11 years and eight months old. Y has a 17 year old brother named X. Orders about X are not sought by either party.

3. The parties separated in August 2017 in circumstances of considerable acrimony and distress, especially for the children. The mother alleges that the father conducted an extramarital relationship. She says the children became aware of that and it affected their relationship with the father. It is not the court’s business to concern itself with such matters except to the extent that they affect the interests of the children or, in this case, the child, Y.

4. I am satisfied having regard to the evidence, including three reports by Ms A, a psychologist, and the mother’s oral evidence before me, that the mother in particular harbours considerable resentment against the father arising from the circumstances of the breakdown of the relationship. It appears that Y has been affected too and there is evidence that he has to some degree aligned himself with his mother.

5. I am satisfied that Y is likely to be aware of his mother’s distress, certainly in the past. I am also satisfied that Y has a good relationship with his father but has been guarded in his expressions of affection for his father or his desire for a closer relationship with his father because of concern for his mother’s feelings.

6. I consider the evidence suggests that the mother has not been genuinely supportive of a relationship between Y and his father. For example, she told me that in about June 2019 Y was “quite keen to try” an increase in the time spent with his father, which was then three nights a fortnight, to four nights a fortnight. However, nothing happened to facilitate that. In evidence, the mother offered various explanations, including that no one had come to her with a definite proposal or that Y had not pushed it. In fact, the independent children’s lawyer made a definite proposal in September 2019 but it did not go ahead apparently because the father was not available on the first proposed extra night.  There was no explanation as to why it couldn’t have happened the next week. The mother also said that she did not think it appropriate to make a change so soon before a trial when other arrangements might be imposed.

7. I do not accept that the mother has acted reasonably in this. I am satisfied that she is, whatever she says to the contrary, resistant to Y spending additional time with the father although she did say at trial, when pressed, that she would agree to an immediate increase in time to four nights a fortnight. I might also say that her proposed orders for trial include a proposal that, subject to a proviso that I will mention in a moment, the time increase to five nights a fortnight in January 2021.

8. Ms A, the report writer, was also of the view that the mother’s attitude was inflexible and not child-focused. The correctness of that view was reinforced, in my view, by the mother’s oral evidence.

9. The proposals of the parties were, in simple terms, by the father that the time Y spend with him move to equal time with a transition over the next 12 months approximately. The proposal of the mother was that there be a “trial” of four nights a fortnight once Y turned 12 on … 2020. As I have noted, the mother, when pressed in her oral evidence, agreed that that time should start now and that the time increase to five nights a fortnight from January 2021.

10. The proviso I mentioned earlier was that the mother proposed that Y be free to return to her care if he expressed a wish to do so. In reality, her proposal was for an arrangement that would be, in effect, entirely subject to Y’ wishes.

11. The independent children’s lawyer proposed orders similar to the father in that, over a transitional period, the orders provide for equal time. Both parties and the ICL proposed that the holiday time be shared equally. On one level, the proposals are very similar. That is, a move ultimately to five nights a fortnight or seven nights a fortnight.

12. The report writer, who was privately retained by the parties to comment on the children’s wishes, produced reports dated 17 September 2018, 23 May 2019, and 1 September 2019. She observed of Y that on each occasion he was opposed to a change in arrangements. When Y was queried by her about his reasons he did not provide any substantial reasons and she commented on what she saw as the inadequacy of the explanation he gave for his views. In Ms A’s final report Y is recorded as saying that he would be “pissed off” if there was a change in the then arrangements.

13. She was of the view that considerable weight should be given to Y’s wishes and recommended a transition to five nights a fortnight over six months. She said that leaving the decision to Y, as the mother proposed, was placing a harmful burden on Y. She was referring to a proposal that the mother may have outlined when speaking to Ms A that Y be free to choose what he wanted to do when he was 12 years old. I am aware that that is probably a somewhat different proposal to the one outlined in the mother’s orders but nevertheless both proposals leave a considerable responsibility on Y’s shoulders.

14. The independent children’s lawyer said that less weight should be given to Y’s expressed wishes. She submitted that his expressed resistance to more time should be taken with a “pinch of salt”. She pointed to the chronology and pointed out that in the family report of 17 September 2018, when Y was not spending any overnights with his father, Y expressed a wish for no change. In the report of the 25 May 2019, when Y was spending two nights a fortnight with his father, he expressed a wish for no change. In the report of 1 September 2019, when he was spending three nights a fortnight with his father, Y again expressed a wish for no change.

15. The independent children’s lawyer said she had spoken to Y on three occasions. Most recently, he had told her that he was willing to consider a move to four nights a fortnight and then five nights a fortnight. She said that this chronology, and what Y had told her recently, indicated that Y was able to adapt to a change in the current arrangements.  The independent children’s lawyer said that Y needed to spend more time with his father in order to develop and maintain his relationship with his father. I accept that submission and it was supported by Ms A’s reports. 

16. The difficulty I have with the submission is that an order to equal time would be against the background of Y having expressed the view that he would be unhappy with such a change and Ms A’s view that it would not be beneficial. She refers in her report of 17 September 2018 that “shared care” is viable where parents get along and there was a commitment by everyone to making it work. I am not satisfied that those conditions, at least, are present in this case.

17. Ms A’s report of 1 September 2019 said there had been a significant improvement in relations between the parents but I am not satisfied that there is any commitment by the mother to making shared care work. I am also not satisfied that it is what Y wants at the moment although I accept, in line with the ICL submissions, that it is possible he may adapt.

18. I should say something of the allegations each party makes against the other. The father alleges the mother is not committed to getting Y to school in the morning and he points to Y’s poor attendance record at school. He is in Year 6 at primary school. He was apparently absent about 24 per cent of the time last year and a higher percentage of the time so far this year.

19. The mother points to medical evidence that says Y has been afflicted by a number of ailments: sinus problems, headaches, and so on. He is under the treatment of a paediatrician. The medical reports say that some absences from school are unavoidable, although the reports do not comment on each day of absence. In those circumstances, I do not feel able to make a finding that Y’s absences from school are due to the mother’s neglect or otherwise unreasonable behaviour on her part.

20. The father also alleges that Y spends a harmful amount of time playing computer games or on screen games. He said that he himself has difficulty regulating this with Y and I am not satisfied that the mother has been neglectful or unreasonable in relation to this issue either.

21. A court deciding a parenting case must follow the legislative pathway set out in Part VII of the Family Law Act and in particular, the matters set out in s. 60(CC). The primary consideration in determining what is in a child’s best interest are set out in subsections (2) and (3) of s. 60(CC). The primary considerations include the benefit to the child of having a meaningful relationship with both of the child’s parents.

22. In the context of this case, that means the father and I am satisfied that the child will benefit from an extension of time that he spends with his father in order to develop and maintain a meaningful relationship with him. The second primary consideration, being the need to protect the child from physical or psychological harm, from abuse, neglect or family violence, is fortunately not an issue in this case.

23. The additional considerations in subsection (3) of s. 60CC are as follows.

24. (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views. I have made some remarks about that point. I accept that there is some evidence, as pointed out by the ICL, that Y’s expressed resistance to a change only lasts as long as the next change. He has in fact adapted and is likely to adapt to further change in the time regime that applies to him. Nevertheless, the parties are in agreement that Y is an intelligent child and that he is reasonably articulate, though he was often unresponsive to the questions of Ms A. I give some weight to Y’s views, indeed significant weight, but having regard to the fact that he is 11 years and eight months old and having regard to the context of dispute in which his views are expressed, I do not give them great weight.

25. (b) the nature of the relationship of the child with each of the child’s parents; and any other person. It appears Y has a very good relationship with both parents and there was no evidence to the contrary.  There was some evidence about Y’s relationship with his older brother X, who is 17. The evidence about that relationship was inconclusive. There was some evidence that X is going through a troubled patch at the moment and it appears that, having regard to the fact that he is some six years older than Y, the relationship is perhaps not particularly close. If it is close, the children do not necessarily spend a great deal of time together. I find it very difficult to make any finding about that.

26. (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity  to participate in making decisions about long-term issues, spending time with the child, and communicating with the child. Both parents have sought, particularly the father, every opportunity they can, as far as I can see, to spend time with Y, communicate with him, and participate in decision-making.

27. (ca) the obligation to maintain the child. There was no evidence about that issue that was relevant.

28. (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child. There will be no separation from either parent or any other child but there will be, as a result of these orders, an increase in the time that Y spends with his father.

29. (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. There is in my view no practical difficulty or impediment to Y spending regular time with both parents.

30. (f) the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs. I have already made some remarks about the criticisms the father has made of the mother. I am not satisfied that those criticisms are made out and I consider that both parents are very capable parents and the capacity issues really relate to their capacity, or incapacity, to shield this child from their dispute.

1. (g)  the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant. I do not propose to make remarks about that.

2. (h), the child is not an Aboriginal or Torres Strait Islander child.

3. (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. I have made some remarks in particular about the genuineness or otherwise of the mother’s support for a relationship between Y and his father. While I have been critical of the mother in some respects, I do note that ultimately her proposal is for a transition to Y spending five nights a fortnight with his father. I accept that, at least on some level, she accepts that it is important for Y to have a close relationship with his father. Whether or not she has done everything she can to facilitate that is another matter.

4. (j)  any family violence. I was not provided with any submissions or evidence about that or (k) for that matter.

5. (l), I propose to make a final order today.

6. (m)  any other fact or circumstance that the Court thinks is relevant. I am not aware of any other fact or circumstance.

7. There being agreement that there ought to be an order for shared parental responsibility, it is necessary to consider section 65DAA of the Act, and to consider under subsection (1) whether it is in the best interests of the child that he spend equal time with each of the parents and whether that is reasonably practicable.

8. For the reasons that I have given, essentially adopting the views of Ms A, in this case where there has been a very high level of acrimony, and where a level of acrimony and resentment continues, along with the child’s alignment with his mother to some degree at least I am not satisfied that the conditions that Ms A described as necessary to make a shared care arrangement viable exist in this case.

9. For that reason, I do not propose to make an order for equal time. I am satisfied that there ought to be an order providing for Y to spend substantial and significant time with his father in conformity with subsection (2) of s. 65DAA and I propose to make an order that, over a transitional period of six months Y spend five nights a fortnight with his father.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 6 December 2019