Wentworth and Wentworth
[2009] FMCAfam 214
•12 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WENTWORTH & WENTWORTH | [2009] FMCAfam 214 |
| FAMILY LAW – Parenting – father’s application to spend more time with the children – attempts at resolution – order which is in the best interests of the children. |
| Family Law Act 1975, ss.60B, 60CC, 60DA, 60DAA |
| Goode & Goode (2006) FamCA 1346 Lavender & Turner (2007) FamCA 182 |
| Applicant: | MR WENTWORTH |
| Respondent: | MS WENTWORTH |
| File Number: | BRC 14131 of 2007 |
| Judgment of: | Baumann FM |
| Hearing date: | 2 December 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 12 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Barry & Nilsson Lawyers |
| Counsel for the Respondent: | Ms Hogan |
| Solicitors for the Respondent: | Jones McCarthy Lawyers |
ORDERS
That the mother and father have equal shared parental responsibility for the children [X] born [in] 1996 and [Y] born [in] 2000.
That the mother and father consult each other in relation to the making of the decisions concerning the major long-term issues about the care, welfare and development of the children as such issues arise, including but not limited to:
(a)The children’s schooling, including decisions about the type of schooling and the schools at which the children shall attend;
(b)The children’s health and decisions that need to be made about operations, medical treatment, dental treatment, speech therapy, physiotherapy, any specialist treatment, any alternative medical treatment and medicating the children on a long term basis, as well as by the children’s attendance for whatsoever reason upon a child psychologist, counsellor, family therapist or psychiatrist;
(c)Decisions about religion and religious instructions and observance by the children;
That the father and mother be individually responsible for making any day to day decisions concerning the children during the time that the children live with each of them in relation to issues that are not major long term issues.
That the children live with the mother and spend time and communicate with the father at all such reasonable times as may be agreed between the mother and the father and failing agreement as follows:
(a)From the completion of school each alternate Friday until the commencement of school Wednesday in the following week, commencing Friday 1 May 2009;
(b)For one half of all other gazetted school holiday periods (including pupil free days) with the father for the first half in even numbered years and the second half in odd numbered years, except for the December/January school holidays.
(c)For the 2nd, 5th and 6th week of the December/January school holiday period (including pupil free days) in even numbered years and the 1st, 3rd and 4th week in odd numbered years.
(d)That the children are to spend Christmas day with the mother in odd numbered years and the father in even numbered years:
(i)Where the father’s designated Christmas day does not fall within the father’s time in accordance with Order 4(c) herein, then the father’s time is to be alternated with the Mother for that year only;
(ii)Where the mother’s designated Christmas day does not fall when the children are in her care, then the mother’s time is to be alternated with the Father for that year only;
(iii)Where Christmas day falls on a changeover day, changeover is to occur on Boxing day at 5pm;
(e)That the children are to spend Easter with the parent who has the children in their care for the first half of the school holidays.
That for the purpose of Order 4(b) herein, school holiday time shall commence and be calculated as follows:-
(a)the school holidays shall be deemed to commence from the completion of school on the day the school term finishes and conclude at the commencement of school on the day school recommences:
(i)for the parent who has the first half of the holidays from the completion of school on the day the school term finishes and conclude at 5.00pm on the date calculated to be half of the holidays; and
(ii)for the parent who has the second half of the holidays from 5.00pm on the day calculated to represent one half of the holidays and shall conclude at the commencement of school on the day school recommences (inclusive of pupil free days).
The arrangements in Order 4(a) shall be suspended during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences to include any pupil fee days) and shall recommence the first day back at school with the parent who had the children for the first half of the school holidays.
Telephone communication
That the mother and father be able to contact the children by telephone during those periods when the children are not living with them at 6:30pm each evening, and the children be able to contact the other parent or their spouse at all reasonable times or where practicable.
That each parent not unreasonably interfere with or interrupt the children’s telephone contact with the other parent or their spouse.
Changeovers
That pursuant to Order 4(a) herein, changeovers shall occur, where possible, at the children’s school/care provider.
That pursuant to Orders 4(b) and 4(e) herein, and for the purposes of changeover at 5.00pm on the day calculated to be half of the gazetted school holiday period, the father and/or mother is to arrange collection of the children from the other parent’s residence at the commencement of their time.
Mother’s Day and Father’s Day
In the event that Mother’s Day falls on a weekend when the children are spending time with the father, the children shall spend time and communicate with the mother on that weekend from the completion of school on the Friday until the commencement of school on the following Monday. In substitution the children will then spend time and communicate with the father on the following weekend from the completion of school on the Friday until the commencement of school on the following Monday after which the care arrangement continues as if the change outlined herein had not occurred.
In the event that Father’s Day falls on a weekend when the children are spending time with the mother, the children shall spend time and communicate with the father on that weekend from the completion of school on the Friday until the commencement of school on the following Monday. In substitution the children will then spend time and communicate with the mother on the following weekend from the completion of school on the Friday until the commencement of school on the following Monday after which the care arrangement continues as if the change outlined herein had not occurred.
Other specific issues
That each party irrevocably authorises any person or institution, including but not limited to any doctor, teacher or hospital to release any and all information reasonably requested by the other in relation to the care and/or treatment of the children. To give effect to this order each party will ensure that the other party is informed of the names and addresses of those person/s.
That each party shall keep the other informed as to their residential telephone number, private email address and mobile telephone number and advise the other of any change to those details within 48 hours of the change.
Each parent shall inform the other parent as soon as practicable, about any significant injury, medical or health issues concerning the children at such times the children are in their care.
That neither parent remove the children permanently from the greater Brisbane metropolitan area without the written consent of the other parent or an Order of the Court.
That neither parent shall denigrate the other parent or members of the other parent’s family to or in the presence of the children or at all.
That each parent shall not discuss these proceedings with the children or show to the children any documents connected with these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Wentworth & Wentworth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 14131 of 2007
| MR WENTWORTH |
Applicant
And
| MS WENTWORTH |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] (now aged 11) and [Y] (now aged 8) are the two deeply loved and cherished children of a relationship between their parents which ended with separation in September 2006.
Since separation the two girls have lived predominantly with the mother, with the father spending regular time with his daughters – since September 2007 in a regime of each alternate weekend from 5:00 p.m. Friday to before school on Wednesday. Arrangements put in place for special days and holidays have generally been agreed.
At least since February 2008 (when the father launched proceedings in the Family Court of Australia) the father has been seeking more time with the children – proposing week about with changeovers to occur each Friday after school.
The mother has also consistently opposed the additional time sought by the father, saying that the current arrangement meets the children’s best interests and should not change.
This brief introduction essentially captures the nature of the dispute and the competing proposals. I do not ignore that some differences also exist in how changeovers should occur and also some of the specific issues sought. The parties reached agreement before the trial began, on the appropriate regime for Christmas school holidays and Mother’s and Father’s Day.
Attempts at Resolution
Although, at first blush, this dispute might be characterised as (mathematically) little more than a conflict over two nights a fortnight – or about 40 nights a year – the underlying tensions and entrenched positions of the parents made a resolution by negotiation seemingly unattainable. They used community based organisations to help shape prior voluntary arrangements which were generally complied with.
I have no doubt that their competent legal representatives and trial Counsel have used all their skills to attempt to resolve this dispute. They were able to do so in respect of financial and property matters.
But nothing is more precious to these parties than their children – although in their dogged quest to achieve what they each believe to be the best proposal, they have both demonstrated at times a lack of insight into how their actions have affected their children.
In a final attempt to secure a tool which might have facilitated a final agreement – the parties engaged a single expert in the form of experienced social worker Sean Moriarty, to assess the situation and provide a family report. As I now explain, Mr Moriarty, although making a number of helpful observations and acting as a conduit for the wishes of the children to be conveyed to the Court, was unable or unwilling to adopt a preferred position. He was not required for cross examination.
The Family Report
Mr Moriarty conducted interviews in April 2008, with the trial taking place some eight months later. As I soon observed, I do not regard the views expressed by Mr Moriarty or the children to be diminished by the time gap.
It is not necessary to incorporate in these reasons large verbatim portions of the report, other than for the Court to record that:-
a)At interviews the mother presented “anxiously and nervously” and was “in tears during some areas of her account”.
b)The mother had many complaints about the father and says the children express strong views to her against the father – most graphically including [Y] allegedly saying that “she hates him and wishes he was dead”. She says the girls tell her how “miserable” they have been at the father’s home.
c)The mother told Mr Moriarty that the father gets “angry if he doesn’t get what he wants” and that she is frightened of him – particularly after an incident in October 2007.
d)The father told the report writer that his primary concern was “the discrepancy between what he was hearing from
Ms Wentworth (through her solicitors) about the children and his actual interaction with them”.e)He explained to Mr Moriarty the reasons why he monitors the use of mobile phones the girls bring with them to his place (see paragraph 24) and how he reacted to, he says, being told a lie.
f)In circumstances where the communication was poor (and has slightly improved since the parties have been using a communication book), Mr Moriarty opines, and I agree that:-
“It is evident that the different perceptions of both Mr Wentworth and Mrs Wentworth of the reasons for their failure in communication are each very one-sided.”
g)The report writer interviews of the parents’ partners – Ms G (with the father); and Mr S (with the mother) – raised no real concerns about their involvement. They support, quite naturally their partner and although both filed Affidavits, neither were required for cross examination.
h)
The separation was seemingly unplanned and, at least by
Ms Wentworth, unforeseen. It was not preceded by other than minor complaints. Having commenced a monogamous relationship when both were approximately 20 years old followed quickly by two children, it seems the parents drifted apart rather than suffering a violent and acrimonious separation. On all the evidence, including the responses to Mr Moriarty (see paragraph 42), it is apparent the mother has taken longer to adjust to the breakdown of the marriage than has the father.
i)Paragraphs 46 and 47 of the report record the mother’s over-reaction and quite inappropriate and emotional outburst directed to Ms G. An incident, which was also the subject of evidence that occurred in the father’s home in October 2007 in front of the children did no credit to any of the adults present. It was again an example of the parents’ inability to cordially communicate and to allow conflict to occur over really nothing at all of importance.
j)All family report writers have the advantage of seeing the children – and not only to assess their feelings and words but also to place expressed views into the context of the child’s individually displayed nuances. Often, because of the inclination for children to tell parents in a conflict what they perceive the parent wants to hear, the report writer’s opinion can be very persuasive. In respect of the children, the important elements of discussions with the children were:-
i)[X] – presented as a pleasant yet “slightly –contained in her emotions” girl. She likes others to be happy. She perceived her father as “stricter”. She is aware the parents do “not get on”. [X] expressed she was aware “it was dad who walked out”. She told Mr Moriarty that when they return home to their mother, their mother obviously missed them and “sometimes she would cry or she would cry on the phone when they spoke to her”. She said her father doesn’t seem to get sad. At paragraph 63 [X] said she did not wish to do the week-about schedule “because they would miss their mother and be tired if they were going to before school care so early.”
ii)[Y] – being younger than [X], expressed herself “more simplistically”, however she was playful and affectionate with both parents. At paragraph 67, Mr Moriarty records that [Y] misses her mother when she is with her father, but also indicated she is aware that the mother cries “after we have gone” as the mother “tells us”. Not surprisingly, this makes [Y] feel sad.
In conclusion, Mr Moriarty at paragraphs 72 to 84 of his report expresses some opinions with which, after hearing the evidence and seeing the parents in the witness box, I would generally adopt.
I particularly agree that the mother has exaggerated the “complaints” of the children. The father’s household rules for doing “chores” are quite acceptable and his disciplining of the children who lied about the mobile phones was also appropriate. I also formed the view that the mother has “internalized a large degree of bitterness”. Her insistence; even at trial, that the father made her have an abortion was expressed with real anger. Some of the mother’s emails also reflect her slowness in “moving on”.
These are different parents – who parent differently – and even though I am satisfied the mother has been less able to disguise her hurt and emotional reactions from the children – her parenting is generally sound and attentive. There is a disparity however in parenting styles and I accept the opinion of Mr Moriarty expressed at paragraph 81 that:-
“The disparity is more difficult for [Y] to traverse than her sister due to the developmental and personality differences and emotional interplay with her mother. This will remain the case for her for some years (probably at least three) until she builds some emotional resilience of her own and reaches her next developmental milestone.”
Mr Moriarty encapsulates the ultimate dilemma facing the Court in this matter, when he opines at paragraphs 83 and 84 as follows:-
“83.Currently Mr Wentworth has five nights per fortnight with the children. The difference between this and seven nights is an arbitrary one; it would be difficult to argue that the children would be significantly worse off if their time with their father was to be increased, however it is also difficult to argue that they would be better off.
84.Increasing their time with the father is not necessarily a panacea to the problems noted. It is possible that extra time with their father may counteract the emotional problems experienced by the children to some extent; it is also possible that it may lead to greater anxiety. Much depends on the development of insight of the parents, whether they can instigate some perfunctory communication, and whether Ms Wentworth can encourage more responsibility and independence in [Y]. The risks are evenly balanced in relation to creating a happier environment for the children.”
I now turn to a consideration of the primary and additional considerations, and in so doing, rely upon but do not necessarily repeat findings already made previously in these reasons.
Primary Considerations
Neither party denies the benefit to [X] and [Y] of having a meaningful relationship with both parents and I am satisfied such a relationship exists. The orders I propose to make will continue to offer the opportunity to the children of preserving those meaningful relationships.
Thankfully the evidence in this case does not raise any significant issues of the children being exposed to abuse, neglect or family violence save for the consequences which flow from the parental conflict in general and, in my view, the mother’s current strongly negative views of the father (and to a lesser degree his partner Ms G) which manifest in capturing the children in witnessing her distress and hearing her negative remarks. I have formed the view that the mother would benefit from personal counselling to assist her in dealing with the breakdown and the reality that the father will, and should, continue to play a significant role in the life of their children. The father’s lack of flexibility at times also presents as a risk if the parents communication and level of mutual trust and respect for each other as a parent does not improve. As will be seen however, at this time, I do not regard increasing time as a solution – rather each parent must look to themselves for an improvement in their behaviour and insight, and in the mother’s case in particular, some therapeutic intervention is likely to assist her.
Additional Considerations
Views
The Court should never ignore the views expressed by any child, but must of course be alert to the context in which feelings are expressed; the age and maturity of the child and any evidence which suggests the children have been coached or influenced. For these two delightful children, the last two and a half years have been a rollercoaster. Just as it seems to have been for the mother, I expect their parents’ separation came as a shock to them. It seems, for reasons which I have already identified; [X] in particular may attribute some blame to the father for “walking out”. That value laden expression usually is accompanied by a sence of loyalty and comfort for the other parent. I have a sense that the mother saw herself as the “innocent party” in this breakdown and her sense of loss has been shared with the children – manifested by her inability to control her emotions when the children are not in her care or return from their father’s care. Coupled with the trauma of this breakdown, the children have been required to adjust to each of their partners repartnering and then the fairly consistent conflict between their parents – often over very trivial issues.
Within this context the wishes expressed by the children, and recorded by Mr Moriarty seek in essence maintenance of the current regime which has been in place since September 2007. Their views do not support the father’s proposals and [X]’s basis (in part) for not favouring a week about arrangement relates to the early wake up required by her father’s work requirements. In her world, that is quite an understandable view.
Relationships
Both children have a strong relationship with their parents. The mother presents as more “needy” and for the reasons already expressed, I have formed the view that at this time the children would most likely be concerned that the change sought by the father will upset the mother. Their relationship with the father is not so emotionally entwined. The orders I make at this time will allow the children to continue to receive the nurturing they are entitled to receive from each of their parents and will also ensure plenty of opportunity to develop their relationships with their parents chosen new partners. The children appear to be comfortable with those relationships.
Willingness to Facilitate and Encourage a Relationship with the Other Parent
There have been isolated events in the post separation period which might suggest and raise concerns about the capacity and willingness of each parent to support and foster the relationship with the other parent. For example, the father’s explanation for retaining the children in his care for Mother’s Day showed a lack of insight and was simply inappropriate. Some of the email traffic from the mother is concerning, and her actions in October 2007 at the father’s home and involvement of the children in some of the financial/property issues, she ought to have known were wrong – as they were.
However against these events, lies a history of generally complying with parenting agreements reached and more occasions where the parents true capacity and understanding of their children’s needs shine through. On balance I am satisfied that both parents will generally facilitate and encourage the other parents’ relationship.
Likely Effect of Change
If the current arrangement is maintained, then the children will be in the predominant care of the parent who has been their primary carer, the mother. The children will, of course, continue to be exposed to the mother’s emotions which, at times in my view, create an emotional dilemma for the girls. Whatever time they spend with their father, they should be able to naturally communicate the things going on in their life with their mother, including the happy events in their father’s home – of which I am satisfied there are many. Instead, the mother’s presentation to the children at times seems to “draw out” any little and inconsequential complaint which at times is then latched upon by the mother; exaggerated; and reduces the level of security they might feel with their father. Perhaps the clearest example of this reaction by the children is [Y]’s comment about wishing her father was dead.
Simply she does not mean it and she has an excellent relationship with her father. I think these words starkly demonstrate how easy it is for a child to say something which she thinks the other parent wants to hear. I do not think the mother wishes the father was dead – but for a child of [Y]’s age to express such a thought reveals, in my view, how keen she is to please the mother.
Having said that, the movement to a week about regime is not supported by the children and Mr Moriarty opines, and I agree, that [Y] in particular is not ready for it at this time. Obviously the father would be a slightly happier parent if he saw more of his children (the converse being that the mother is likely to be less happy – and on current indications would show that unhappiness to the children) if a week about arrangement was created.
On either proposal, the children will have to adjust to the different parenting styles; rules; discipline; meals and activities in each household. I do not regard either household (dominated by each parent) as being superior – merely offering slightly different things. That of itself is not a negative for these girls – who will develop a level of resilience and adaptability over time.
However, I have formed the view, that for these children a change in the manner proposed by the father at this stage of their development is likely to create more issues for the children to deal with than less – and they should be spared from that burden unless the benefits of change outweigh the detriments in a finely balanced decision. They do not in my assessment.
Capacity and Attitude of Parents
It is a sad reflection on the adversarial system that when, as in this case, the Court has two capable and caring parents who these children are likely to have, and an issue in dispute is narrow – that the parties focus on the small, even trivial, issues in an attempt to persuade the Court that their proposal best meets the children’s needs. That is what occurred in this case to some degree – only tempered by the wise and sensible advocacy of Mr Jordan for the father and Ms Hogan for the mother. I have already identified some concerns about the mother’s emotional responses. I believe however that the mother can overcome these issues and if she does so, not only the level of communication, but the comfortableness of the children traversing both homes is likely to improve.
The father’s availability because of his work commitments, does present a less than optimal option for the children before school. Of course, it s positive for the children to see their father having a strong work ethic, but requiring the children to rise before 6:00 a.m. in the morning (there is some suggestion as early as 5:00 a.m.) is likely to impact on their routine and the increasing pressures at school and from extra curricular activities. As the children get older, their after school activities and increased homework (coupled with a need for balanced recreational time) generally means they stay up later. These continual early starts will in time, I predict, create some tensions.
I do not wish to be interpreted as saying the father is not making the best arrangements he can in the circumstances, for it seems he is. However the differences in routines in the two households are to a large degree shaped by the father’s work commitments.
Family Violence
Again unfortunately, there are few incidents which were raised in the material which attracted a concern of the children being exposed to family violence. There are no domestic violence orders in place.
I frankly can see no reason for the mother to fear the father, as she claims. Changeovers should not be a problem and, with children of this age, can be achieved with minimal interaction between the parents or persons involved in the handover. The changeovers should occur, at school or, outside school hours, at the homes of the parents. To do so otherwise is to give a message to these children that the parents dislike each other so much they have to go to a “neutral location” to affect changeovers. In this case, on the whole of the evidence, that is not appropriate.
Making an Order Less Likely to Lead to Further Proceedings
I can well understand that the father will be disappointed with my decision. He genuinely wants to play a significant – if not equal – role in the life of his children and believes that can only be achieved by having equal time. Furthermore I gained the impression that the contest I presided over had become less about the children’s best interest and more about winning the battle. As a result, even though the Court does not see a “winner” or “loser” from this trial, the father may well see it in those terms. Accordingly I cannot ignore the possibility that the father, as he has since separation, will continue to seek an equal time regime.
It is my view that in time this couple may well be able to manage effectively an equal time regime – and that as [Y] gets older and is better able to developmentally adjust to having slightly less time with the mother, the option of equal time could be revisited. Mr Moriarty gives some hint that perhaps that is in at least now a couple of years time. I do believe however that the order I propose to make is in the best interests of the children at this time.
Any Other Fact or Circumstance
In these reasons for judgment I have been critical of the mother more than the father. It however arises from my view that the mother is not consistently, at this time, providing the best she is able to do because of the emotional issues she carries. I hope that she sees my remarks as an honest attempt to lay a foundation for her to deal with those issues and not, unintentionally, expose and burden the children with her adult concerns. I do not say the father may not have similar grievances – he has however demonstrated a better capacity to separate his feelings from what is in the best interest of the children at times.
Notwithstanding my remarks about the mother (which I hope she may use as a catalyst to seek some therapeutic support), she is a devoted and caring mother. My decision described by Mr Moriarty as essentially “arbitrary”, is not founded on penalising the mother or rewarding the father. That, as I now discuss, is not the test the law requires me to apply.
Discussion
The children’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the additional considerations are set out in s.60CC. The primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) will be analysed below to ensure that the order I propose will serve the best interests of the children.
In Goode & Goode (2006) FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interest of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents” (see Lavender & Turner (2007) FamCA 182).
It follows that unless the presumption of equal shared parental responsibility is rebutted, the Court must consider whether equal time with each parent is in the children’s best interests and reasonably practicable. If the Court does not make an order for equal time, the Court must consider whether the children spending substantial and significant time (as defined by s.65DAA(3)), is in the best interests of the children and is reasonably practicable.
Conclusion
As I hopefully have demonstrated above, I do not believe it is in the best interests of the children to move to an equal time regime at this time. I seriously considered the father’s proposal, but have not accepted it. I am unable to confidently predict if, or when, that option becomes more viable.
In summary, drawn from my reasons and discussions above, I have taken the view that an order proposed by the mother which provides substantial and significant time, is in the children’s best interests, and do not favour an equal time regime because:-
a)The continual and ever present parental conflict to which both parents have contributed;
b)The poor and ineffective communication;
c)The age and development needs of [Y];
d)The children’s wishes (although not of determinative weight); and
e)The slightly incompatible parenting styles and routines.
My understanding was that these reasons deal with the remaining issues in dispute as identified by the final submissions of Counsel; however I am happy to hear further submissions from the parties if there are matters, now that the major issue has been determined, that I am required to decide. I will ask the solicitors for the Applicant father to prepare an order in accordance with these reasons and the other areas of consent and prescribe a suitable timeframe for an early pronouncement of the orders.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: L Parke
Date: 12 March 2009
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