WHEELOCK & BENN

[2019] FamCA 147

FAMILY COURT OF AUSTRALIA

WHEELOCK & BENN [2019] FamCA 147

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the parties are in substantial agreement about the final orders proposed – Conducted on the papers with limited submissions directed to areas of disagreement between the parties – Order made.

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

APPLICANT: Ms Wheelock

RESPONDENT: Mr Benn

FILE NUMBER: ADC 1945 of 2007

DATE DELIVERED: 15 March 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 1 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Koerner Lloyd Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all previous orders be discharged.

2. That all outstanding contravention applications filed by the mother be dismissed.

3. That the parties have equal shared parental responsibility for X born … 2003, Y born … 2004 and Z born … 2006 (collectively “the children”).

4. That X live with the mother.

5. That Y and Z live with the father.

6. That Y and Z spend time with the mother as follows:-

   (a)During school term time from 6.00 pm Friday to 5.00 pm Sunday each alternate weekend commencing 22 March 2019;

   (b)For one half of each of the three short school holidays and the long Christmas school holidays with times to be agreed between the parties, but in the absence of agreement:-

   (i)During the short school holidays for the second half to be calculated from 10.00 am on the middle day of the school holidays (NOTING that the first day of the school holidays will be the first Saturday immediately following the end of the school term and the last day of the school holidays shall be the last Saturday immediately before the commencement of the new school term) to 5.00 pm on the last Saturday of the school holidays;

   (ii)On a week about basis from 12 noon on the first Saturday of the Christmas school holidays to 12 noon on the following Saturday and each alternate week thereafter.

7. That X spend time with the father as follows:-

   (a)During school term time from 6.00 pm Friday to 5.00 pm Sunday each alternate weekend commencing 29 March 2019;

   (b)For one half of each of the three short school holidays and the long Christmas school holidays with times to be agreed between the parties, but in the absence of agreement:-

   (i)During the short school holidays for the second half to be calculated from 10.00 am on the middle day of the school holidays (NOTING that the first day of the school holidays will be the first Saturday immediately following the end of the school term and the last day of the school holidays will be the last Saturday immediately before the commencement of the new school term) to 5.00 pm on the last Saturday of the school holidays;

   (ii)On a week about basis from 12 noon on the second Saturday of the Christmas school holidays to 12 noon on the following Saturday and each alternate week thereafter.

8. That the children will spend time with the mother on Mother’s Day from 5.00 pm on the preceding Saturday to 5.00 pm on Mother’s Day and with the father on Father’s Day from 5.00 pm on the preceding Saturday to 5.00 pm on Father’s Day.

9. That the children will spend time with the mother on her birthday and the father on his birthday for a minimum period of four (4) hours if the birthday falls on a weekend and otherwise at times to be agreed between the parties but in default for a minimum of three (3) hours.

10. That the children spend time with the mother from 4.00 pm on 24 December 2019 until 4.00 pm on 25 December 2019 and each alternate year thereafter and from 4.00 pm on 25 December 2020 until 4.00 pm on 26 December 2020 and each alternate year thereafter.

11. That the children spend time with the father from 4.00 pm on 25 December 2019 to 4.00 pm on 26 December 2019 and each alternate year thereafter and from 4.00 pm on 24 December 2020 to 4.00 pm 25 December 2020 and each alternate year thereafter.

12. That the children’s time with each of the parties is to occur such that the children are to be together on each weekend and during school holidays.

13. That the parties shall keep each other informed in relation to significant medical issues or events that affect the children.

14. The parties shall provide any necessary authority to enable each party to obtain copies of the children’s school reports, school photographs and other information from the children’s school that is usually obtainable and available to parents.

15. That unless otherwise agreed between the parties, all handovers are to occur outside the Police Station.

16. That both parties use their best endeavours to ensure that the children attend their school, social, co-curricular and extra-curricular and sporting commitments including but not limited to music, sports, dance, friend’s birthdays and community activities.

17. That the parties are to disclose to the other the mobile phone numbers for the children.

18. That the parties shall provide regular updates to each other of the children’s commitments, health and any other major issue and concern that arises in respect of the ongoing care, welfare and development of the children.

19. That at the joint expense of the parties, they shall attend upon X’s current psychologist at C Group to obtain and implement the process by which X is to be informed that the father is not her biological parent.

20. That in the event that either party intends to take one or all of the children outside the Commonwealth of Australia, or send one or all of the children outside the Commonwealth of Australia, then that party shall notify the other party of his or her intention to do so in writing not less than sixty (60) days prior to the departure date and the party shall provide the other party with a full written itinerary together with contact details for the child or children whilst out of Australia.

21. That upon presentation of all documents required for the issue of a Passport for a child or children by the party with whom the child or children lives, THEN the other party shall sign all necessary documents and do all such things as to obtain the Passport for and on behalf of the child or children and to return to the party with whom the child or children live within seven (7) days of the document being tendered for that purpose failing which a Registrar of this Court shall sign the necessary documents upon proof by affidavit that such documents have been tendered to the party for that purpose.

22. That in the event that a Passport is issued for the child or children THEN such Passport shall be retained by the party with whom the child or children lives. The party that has possession of the child’s Passport must provide the Passport to the other party for travel outside of Australia twenty eight (28) days prior to the departure date and return the Passport to that party within seven (7) days of the child’s return.

23. That the parties shall keep each other informed of their and the children’s residential address, mobile telephone numbers, email address and shall notify each other of any change within ninety six (96) hours of that change occurring.

24. That the parties shall communicate by email SAVE AND EXCEPT in the case of an emergency involving any of the children where a direct phone call can be made.

25. That the parties be restrained and an injunction be granted restraining each of them from denigrating the other in the presence of the children or from allowing any other person to do so.

26. The parties be restrained and an injunction be granted restraining each of them from discussing these proceedings or the proceedings generally on any social media or online platform or allowing any other person to do so.

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 Wheelock & Benn 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 1945 of 2007

Ms Wheelock

Applicant

And

Mr Benn

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 31 March 2015 Ms Wheelock (“the mother”) seeks an order for shared parental responsibility for X born in 2003, Y born in 2004 and Z born in 2006 (collectively “the children”), that the children live with her and spend time with Mr Benn (“the father”) each alternate weekend and half of each school holidays.

2. By Response filed 8 May 2015 the father seeks that the children live with him and spend only supervised time as may be agreed with the mother.

3. The proceedings have been before the Court since 2007. A final order was made in December 2009 which provided for the children to live with the father and spend each alternate weekend and each intervening Monday night with the mother. It appears that the children spent more time in the father’s primary care and less time with the mother than provided for by the orders.

4. There were also relatively extensive periods when the children did not see their mother following allegations that X may have been the subject of sexual abuse by the mother’s then step-son.

5. On 24 November 2016 the final orders made 22 December 2009 were varied by consent and provided for the parties to have equal shared parental responsibility, that the children live with the father and spend time with the mother on each alternate weekend during school term as follows:-

   i)On Saturdays when the children have no sporting commitments from 9.00 am Saturday to 5.00 pm Sunday;

   ii)On Saturdays when the children have sporting commitments from the conclusion of all of the children’s morning sporting commitments on Saturday to 5.00 pm Sunday;

   iii)For a modest extension of time during the school holidays.

6. In recognition of perceived reluctance on the part of the children to engage with the mother and her partner Mr F, the parties agreed to engage the services of Ms T to undertake “a reunification process”.

7. The mother filed an Application on 11 May 2017 alleging that the father had contravened the orders.

8. On 23 May 2017 Judge Mead made orders by consent that the children attend upon Ms T for the purpose of meeting with the mother’s partner as part of a reunification process pursuant to the orders made on 24 November 2016.

9. On 18 October 2017, by consent, the order of injunction preventing the children from coming into contact with the mother’s partner was discharged and each party was ordered to file an affidavit setting out their interim and final proposals.

10. By reference to those affidavits the father sought the sole parental responsibility for the children and that they spend time with the mother during school terms from the conclusion of the children’s Saturday sporting commitments (or 9.00 am in the absence of any sporting commitments) until 5.00 pm Sunday each alternate weekend, on various other special occasions and during school holidays from 10.00 am Friday until 5.00 pm Sunday each alternate weekend.

11. The father also sought that the handover arrangements for the children occur outside a Police Station or at such other place as may be agreed.

12. For her part, the mother sought equal shared parental responsibility for the children, that X live with her and Y and Z to live with the father.

13. In addition, she sought that Y and Z should spend time with her each alternate weekend from 5.00 pm Friday until 7.00 pm Sunday during school terms, for the first week of each of the short school holidays and for one half of the Christmas school holidays.

14. X should spend time with the father each alternate weekend from 5.00 pm Friday until 7.00 pm on Sunday to coincide with the period when Y and Z are in the father’s care and similarly school holiday periods when Y and Z are not spending time with her.

15. On 18 September 2018 Judge Kelly adjourned submissions in relation to final parenting orders to 15 October 2018 on the basis that the parties indicated that negotiations were ongoing and that they were hopeful of resolving most of the substantive issues in dispute.

16. On 15 October 2018 her Honour listed the matter for a final hearing on the papers only and ordered that the parties file a notice of agreed facts/orders which identified the remaining parenting issues in dispute.

17. It was the joint position of the parties that the matters remaining in dispute would be relatively minor and did not justify the preparation of comprehensive trial affidavits, or the engagement of counsel nor any update of the most recent family report by Ms G, psychologist (‘the family consultant”) dated 16 December 2015 being Annexure “A” to the affidavit of Ms K filed 18 December 2015.

18. As matters transpired her Honour was not available to hear the matter as listed and it was transferred to me for hearing upon the same basis.

Documents relied upon

1. The mother relies upon the following documents:-

   (1)The mother’s Affidavit filed 3 September 2018.

   (2)A document entitled “Proposed Final Orders and Orders Not Agreed” filed 4 January 2019.

2. The father relies upon the following documents:-

   (1)The father’s Affidavit filed 13 September 2018.

   (2)The father’s Further Affidavit filed 29 January 2019 annexing his document “Proposed Final Orders and Orders Not Agreed” at Annexure “[B-B]” and his earlier Trial Affidavit filed 3 November 2016.

3. During the hearing extensive reference was made to the Family Report prepared by the family consultant.

4. Orders were made for an update report to be prepared, however for various reasons the appointments were cancelled.

Issues in dispute

1. Subject to further consideration by the mother, the parties agree that Annexure “[B-B]” to the father’s affidavit sets out the areas of agreement and disagreement.

2. The process undertaken at trial was to take each area of dispute and hear submissions from the mother’s counsel and the father.

Parenting considerations

1. Whilst the proceedings are to be determined on the papers with the consent of the parties, I am obliged to consider the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).

2. I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A) and in particular the concern by each of the parties that their respective attitudes towards the other may have the potential to cause emotional and psychological harm to the children.

3. Given that the proceedings have been in the Court since 2007, it would be reasonable to find that the children are aware of the ongoing conflict between the parties and the longstanding litigation which has dominated the majority of the children’s lives.

4. The parties have however reached substantial agreement as to the primary living arrangements and what remains are matters at the lower end of the scale which the parties agree can be dealt with in a summary hearing.

5. Hopefully the joint approach of the parties seeking to resolve the litigation expeditiously maybe an indicator that the children’s interests will be better served by resolution rather than ongoing conflict.

6. I propose to adopt the following approach:-

   (1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;

   (2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   (4)Have regard to the primary considerations under s 60CC(2) namely, the benefit to the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm;

   (5)Have regard to the additional considers under s 60CC(3);

   (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be considered to one or more of the matters raised then it must be the subject of delineation and comment.

Family report

1. The Family Report prepared on the joint instruction of the parties is of some limited assistance given that it was published on 16 December 2015. As discussed, there has not been any follow up or addendum assessment.

2. Although of limited utility it does provide some background to the current circumstances wherein X resides with the mother and Y and Z reside with the father.

3. In 2015 the report writer considered that the children experienced the father as a more reliable and competent caregiver than the mother.

4. The children were content to remain with the father and spend time with the mother. X did not express an intention to live with her mother, however, the attitude of the children may have been adversely impacted by their earlier concern as to the mother’s partner and their allegation of having witnessed domestic violence in her home.

5. Y indicated that she wanted “a more balanced parenting arrangement” and would like her mother to be more involved in her various activities. She highlighted that her father “always came” to her school and extra-curricular, whereas the mother did not always come to watch her and this was upsetting.

6. Z was also keen to spend time with her parents but would have liked to spend more time with the father on weekends given his general work commitments.

7. Both parents recognised that X was a troubled child who demonstrated symptoms of anxiety and depression, evidencing behaviours that were on the borderline of being clinically significant.

8. The mother observed X to be “temperamental” and there were difficulties with X’s friendship group.

9. The narrative promoted by the father was than even when the parties shared the care of the children, the mother did not consistently spend time with them. The children were upset when the mother did not ensure their attendance at their various curricular and extra-curricular activities. The father maintained the view that the mother was generally not interested in the children’s activities preferring to give her own commitments priority.

10. The mother conceded that the father had a clear capacity to care for the children. Ms G observed that the father presented as “a knowledgeable, reflective, child-focused parent”.

11. The mother considered that the father’s approach was to gradually remove her from the children’s lives.

12. Unfortunately, the children reported that the parties had a history of denigrating the other. The adverse impact on the children is demonstrated by Z’s assessment of her parents’ relationship:-

    “One of the days, I don’t know what they were talking about, Dad and Mum were quite happy and chatting, it made me feel a bit happy.” She indicated that it is often more awkward between her parents. She said she worries sometimes that her parents may fight. [Z] commented that her parents should be able to be more comfortable with each other, “because they are both lovely”

13. The family consultant recommended that the children live with the father and spend up to 10 hours with their mother each alternate Saturday or Sunday depending upon their commitments. Again, the recommendations were influenced by the involvement of the mother’s partner in her home.

Orders not agreed by the parties

The time that Y and Z spend with the mother

1. The father seeks that during school term the children spend time with the mother from the conclusion of their Saturday sporting commitments or 9.00 am in the absence of any sporting commitments until 5.00 pm on Sunday every second weekend. The mother seeks that irrespective of sporting commitments the children’s time commence with her at 5.00 pm on Friday evening.

2. There is considerable history to the father’s proposed arrangement and previous orders have reflected that the mother’s time with the children is to commence on Saturday morning subject to their sporting commitments.

3. Y is 13 years of age and Z is 12 years of age.

4. There appears to be no good reason why the children’s time with the mother should not commence on Friday afternoon. For reasons that are not clear, the parties have accepted that the mother is either not able to or is prevented from attending at the children’s school at the conclusion of the school day on Friday.

5. The objection by the father appears to be more to do with the arrangements in his household and given that handover is to take place at a city police station.

6. Z and Y need to spend time with the mother in a manner that will best promote a meaningful relationship. If the children have extended time with the mother then there is more opportunity for weekend activities to be planned.

7. Previous orders that did provide for the mother’s time to commence on Saturday morning also provided for an overnight in the intervening week.

8. I propose to order that the mother’s time is to commence at 6.00 pm on Friday until 5.00 pm on Sunday every second weekend.

Holiday time

1. The parties are agreed that the long Christmas holidays will be divided equally, with the parties to reach agreement as to the terms and conditions of the children spending time with the mother not less than 60 days from the beginning of the holidays.

2. I can see no good reason why the mother should not enjoy one half of each of the three short school holidays, it being conceded that the second term is usually of three weeks duration. The father offers only one week of each of the short school holidays.

3. I propose to order that the children spend one half of the short school holidays with the mother.

X spending time with the father

1. X resides with the mother and it appears that she currently spends time with the father subject to her wishes. The mother seeks that this continue.

2. Otherwise, and consistent with his proposal concerning Y and Z, his time with X is to commence following the conclusion of sporting commitments (or 9.00 am in the absence of any sporting commitments) on Saturday until 5.00 pm Sunday every second weekend.

3. It is important that X spends time with the father, more so because it supports the sibling relationship in the unfortunate circumstances where the three children are separated.

4. The mother’s opposition to the father’s orders is to a large degree influenced by X being 15 years of age and a perception by the mother that she will have difficulty in complying with an order if X resists.

5. It is inevitable that a stage will be reached when a parenting order may no longer be of any utility or is demonstrably subservient to the attitude of the subject child.

6. In the absence of any assessment, I am not able to assess the weight I should give to X’s views other than to recognise that she is 15 years of age.

7. I propose to fall in with the father’s application and not subject the operation of any order to X’s wishes.

8. The father has submitted that he understands X brings her own decision making to the time that she spends with him and as such has no intention of seeking to enforce orders in circumstances where X may not attend.

9. That is a matter for the father, but at this stage the importance of the children spending time together provides support for orders that X’s time with the father will be without condition and that she will spend time with him during school term and holidays such that the three children will spend as much time together as is possible.

Ability of the parties to communicate with the children

1. The father seeks that the mother be at liberty to communicate with Y and Z by telephone each Tuesday and Thursday evening between 6.30 pm and 7.30 pm on the children’s mobile and if they are not available then the father shall facilitate the children returning the call to the mother at the next available opportunity. The father seeks the same provision in relation to X.

2. It is conceded that the children have mobile phones and neither the mother or the father seek to regulate the arrangements in terms of the children’s use of their phones.

3. Given that the parties are aware of the children’s telephone numbers, I can see no reason why there should be any particular restriction imposed. There is no evidence that the ability of each of the parties to communicate with a child or children not in their care has been abused. It should also be remembered that later this year X will be 16 years of age, Y will be 15 years of age and Z will be 13 years of age.

4. The likelihood is that the parents will be in any event subservient to the manner in which the children would wish to communicate with each of them.

X’s ongoing therapy

1. The father seeks that the mother shall facilitate X’s ongoing therapy with her current psychologist at C Group at her sole expense. The mother is not confident that she has the financial resources to continue the therapeutic intervention. The difficulty with the order as promoted by the father is that there is no report from X’s psychologist as to what is required, the frequency upon which future visits should occur and how issues in respect of X’s paternity should be disclosed to her.

2. I do not consider that I can reasonably order the mother to facilitate X’s ongoing therapy. The parties have equal shared parental responsibility and it seems to me that it is a matter about which the parties should reach agreement, rather than the Court make an order in circumstances where there is little or no evidence to underpin any decision as to ongoing therapeutic intervention for X.

3. There is however purpose in the parties gaining assistance to assist in the disclosure to X that the father is not her biological parent.

4. I do not propose to make an order as proposed by the father, but I will order that the parties shall attend upon C Group at their shared expense specifically to gain assistance as to how and when X’s paternity should be discussed with her.

Contact details of each of the parties

1. The father seeks that the parties shall keep each other informed of their contact details within 48 hours of a change occurring. The mother does not oppose such an order, but considers that 48 hours may be too short a period. I propose to order that the parties exchange contact details within 96 hours of any change either in terms of residence, mobile telephone numbers or email addresses.

How the parties communicate with each other

1. The father proposes that the parties shall communicate by email save and except in the case of an emergency where a direct phone call would be made. The mother disagrees and seeks that there be communication by text message.

2. I can see no reason why the parties should not communicate by email unless they agree otherwise.

Should the parties be restrained from discussing the proceedings with or in the presence of the children or via social media?

1. The father seeks that the parties be restrained from discussing these proceedings with the children or in their presence and certainly in respect of social media or other online platform or forum.

2. The reality is that the children are well aware of the proceedings and have been the subject of assessment, discussion and involvement over 11 years.

3. The evidence supports the finding that the children are well aware of the proceedings and given their ages I do not consider that there is any advantage to them in imposing what would now be an artificial barrier to what has been open discussion in each of the parties’ households.

4. That is different to there being any engagement with social media.

5. There is a difference between discussions that may occur within each household as opposed to a broader publication to others, in particular those unrelated or not connected to the parties.

6. I decline to make an order restraining the parties from discussing these proceedings in the presence of the children, but will order that the proceedings and matters affecting the children should not be the subject of online discussion.

Should the parties mediate before they litigate?

1. The underlying rationale of the orders sought by the father is admirable. Given the history of litigation and what is likely to have been the ruinous expense incurred by each of the parties, it would seem sensible that the parties should attempt mediation before there is further litigation once the orders are made that resolves the litigation.

2. I do not consider that I have the ability to order that the parties attend upon family dispute resolution in the absence of jurisdiction.

3. Section 60I obligates the parties to attend upon family dispute resolution before applying for a Part VII order.

4. Section 60I(7) provides that:-

   Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

5. It would not be reasonable, nor in any event enforceable, that if either party failed to attend or participate in the mediation then that party will be responsible to pay the participating parties’ legal representation and Court costs.

CONCLUSION

1. I propose to make comprehensive orders which bring to account the matters the subject of agreement between the parties and to incorporate my determination where the parties were in dispute.

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

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 March 2019.

Associate:

Date: 15 March 2019