Whitney & Belanger [2017] FCCA 582 (9 February 2017)

Last Updated: 16 May 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

PENDING FURTHER ORDERS

(1) The time between the child [X] born (omitted) 2004 and the Applicant father pursuant to the final parenting Orders made on 1 October 2008 in particular order 4(c), is to recommence on Friday 10 February 2017.

(2) The parents and the child are to continue to attend family therapy with Ms S in accordance with the orders made by consent on 20 December 2016.

(3) By consent discharge the Order for the parties to attend a Child Inclusive Conference made on 20 December 2016.

(4) The parties have liberty to approach my Associate in Chambers to have the matter relisted on 7 days’ notice in the case of any urgent matters which require the Court’s attention.

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

PAC 1825 of 2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. This is an interim parenting application regarding the only child of the parties, [X], born on 14 March 2004. By way of Initiating Application filed on 15 December 2016, and then amended on 19 December 2016, the father seeks a number of interim and final parenting orders. The mother has filed a response, that being done on 20 December 2016. Both parties filed Affidavits in support of the respective orders which they were seeking. The Affidavits which are being relied upon are the Affidavits of the father filed on 19 December 2016 and the Affidavit of the mother filed on 20 December 2016. There is also an Affidavit of Ms M, which was filed on 8 February 2017 – Ms M being the Family Counsellor appointed by the parties pursuant to Orders made on the last occasion the matter was before the Court, being 20 December 2016.
2. The application comes on in a fairly urgent fashion. The first return date was 20 December 2016 where, notwithstanding the father pressing for the Court to hear the application, due to restrictions in the Court’s availability, the Court was not able to hear the father’s application at that time. The matter was then set down for interim hearing.
3. There were a number of consent orders entered into on 20 December 2016, including, as has already been indicated, an order for the parties and the child to attend family therapy with Ms M. The reason why the application came on as it did in mid-December 2016 is that the child stopped spending time with the father in early December 2016 and the mother withdrew her consent for the child to go on an overseas holiday in the Christmas school holiday period at the end of 2016, an event which had been occurring for a number of years previously.
4. The parties entered into final parenting orders by consent on 1 October 2008 when [X] was only four years old. Those orders provide for [X] to live with the mother and for her to spend each alternate weekend with the father from after school on Friday until the commencement of school on Monday. The orders also provide for [X] to spend half of the school holiday periods with the father in accordance with what is set out in paragraph 4(d) of the Order of 1 October 2008.
5. Importantly, those final parenting orders provide for the mother and the father to have equal shared parental responsibility for the long-term care, welfare and development of the child. The parties’ current competing proposals are not as originally set out in their Amended Initiating Application and Response, respectively filed on 19 and 20 December 2016. Rather, the parties’ competing proposals at the interim hearing today are in accordance with the proposed Short Minute of Order each of the parties handed up to the Court today, those documents being marked ‘MFI1’ and ‘MFI2’.
6. In essence, the father seeks that a declaration that the mother, in failing to make the child available to spend time with the father since 9 December 2016, without reasonable excuse, contravened the orders made on 1 October 2008. He asks for an immediate recommencement of time in accordance with those orders, and by immediate it is meant to commence on 10 February 2017. This is subject to a proposed variation of changeover, such that changeover no longer occurs at the child’s school but rather to occur at a McDonalds restaurant at (location omitted). It is understood that the basis for the application for the changeover to be at a different place is because, as of the end of the 2016 school year, [X]’s enrolment at the school that she was previously attending was terminated by her mother and she was enrolled in another high school which is closer to the mother’s workplace in (location omitted), Sydney. The father, in accordance with his Affidavit, says that this is some distance away from where he lives, and the Court understands that that is the reason why he is asking for changeover to be facilitated at McDonalds rather than the child’s school, although no submissions were made in that regard.
7. The father also asks the Court to grant him leave to make an application seeking make-up time with [X] at a later date in these proceedings, and the father asks for his costs of this application to be reserved.
8. The mother, on the other hand, seeks orders:
   1. for the father to attend a parenting program conducted by Community Family Centres;
   2. that he attend an anger management program;
   100. that time between the child and father be suspended pending a recommendation by the Family Counsellor as to when that time is to recommence; and
   4. that the father and the child to attend supervised visits between 11am and 1pm every Saturday at McDonalds (location omitted) with the aim of restoring the father-daughter relationship.
9. During submissions on behalf of the mother, an application for that time not to be supervised was made such that the mother in essence that the child should only be seeing her father for two hours every Saturday until such time as she was ready to resume seeing the father in accordance with the Orders made by the parties by consent in October 2008.
10. Furthermore, the mother sought orders for the parties to periodically encourage the child to communicate with the other parent and immediately facilitate any wish expressed by the child to communicate or spend time with her mother or father. Lastly, the mother sought an order that the parties without admission be restrained from denigrating the other parent in the hearing or presence of the child, and that they should ensure that no third party do so.
11. The Court was not taken to any evidence in relation to that last order which was sought, and in any event, such an order was already made, or an order to similar effect was already made by consent on 20 December 2016, at least on an interim basis.
12. The issue in dispute, in essence, is whether time between the father and the child is to recommence immediately or after some period of reintroduction, which the mother except, to say that it should be two hours each week and with the recommendations of the Family Therapist does not have any firm plan as to how that is to occur; at least, not based on her evidence which has been filed in these proceedings.
13. The short history of the matter is as set out in the agreed chronology which was handed up, and by “agreed chronology” it is meant the document which is identified as ‘MFI3’ in the proceedings, a chronology prepared by the father’s solicitor which the mother’s solicitor, in essence, consented to except to the extent as to how those events should be interpreted by the Court.
14. In any event, consent orders were entered into by the parties on a final basis in 2008, as already indicated. Those orders appear to have been complied with by both parties for a number of years; that is, despite the difficulties which the mother asserts were occurring at least in her household in relation to [X]’s spending time with her father. Both parties continued to comply with the Orders up until December 2016. What then happened was that in early December 2016 there was, as had occurred in previous years, a proposal by the father for him and the child to travel to (country omitted)(country omitted) for their annual overseas holiday. The mother consented to that holiday taking place and signed consent orders to that effect on or about 6 December 2016.
15. According to the mother, there was also at that time some difficulty that [X] was experiencing at the school that she had been attending, and the mother asserts that [X] was being bullied at school, quite significantly so, and that [X] herself wanted to change schools and to attend (school omitted) in (location omitted), which is a school where she is currently enrolled.
16. The mother in her Affidavit does not set out any discussions between her and the father in relation to the child’s wishes about a proposal for the child to change schools, or indeed, about the mother’s proposal for a change of the child’s school, in light of the orders for equal shared parental responsibility having been made by consent on 1 October 2008.
17. It then appears that the mother told [X] that her father wanted her to attend schools other than what was being proposed by [X], being (school omitted)’s in (location omitted). [X] apparently had a conversation with her father on or about 6 December where she tried to raise the issue of her schooling with her father. Both parents give evidence about what is said to have occurred during this telephone conversation. The mother says that following the phone conversation that [X] had with the father, she said to the mother that the father yelled at her, saying words, “This matter has nothing to do with you, don’t get involved,” and then that he hung up on her. Apparently [X] was in tears and stated that she was scared to visit the father that weekend as she felt that he would be enraged by her request and that he would yell at her again, and he and his family would ignore her all weekend.
18. The father in his Affidavit gives a different account of what occurred on that occasion, and certainly denies that he was upset with [X] or that he yelled at [X]. Without any testing of the evidence, the Court is not able to make any findings of fact about what actually occurred in this conversation between [X] and her father. Certainly the father is unable to give any evidence to the contrary as to [X]’s reaction after the telephone call, and so it seems that the only evidence about this is from the mother that [X] was upset and that she apparently said to her mother that she was scared of spending time with her father on that upcoming weekend.
19. The mother says that on 7 December 2016 she instructed her solicitors to send a letter to the father’s solicitor informing the father that she had applied for [X] to attend a new school next year, and in that letter the mother offered the father to spend time with the child in accordance with the orders except that changeover would not be occurring at school but rather at McDonalds at (location omitted). The mother says that this would have avoided the father having to drive to (location omitted).
20. The mother does not explain at all why it is that she did not facilitate time between the child and the father in accordance with her proposal as contained in the letter on 7 December 2016, which is an Annexure C to the mother’s Affidavit.
21. It was submitted on behalf of the mother that the way that the parties were communicating at the time was either through a communication book or through the solicitors, and that there was no evidence before the Court of the mother having any other discussions or communications with the father about any matters of concern that she had, not only in relation to the father’s relationship with [X] but also in relation to [X]’s schooling, and whether she ought to be changing schools in the 2017 school year. The Court was told about the parties attending mediation to have some discussions about some of those issues.
22. What is concerning to the Court is that following the conversation between the father and the child on 6 December 2016, the mother instructed her solicitors on 9 December 2016 to write to the father’s solicitors and not only withdraw the mother’s consent to the child travelling with her father for the annual holiday to the (country omitted), notwithstanding that she had previously signed consent orders agreeing to such a trip, but also that this was because [X] had shown an unwillingness to join her father on this holiday. Next, the email of 9 December from the mother’s solicitor states as follows:[X] has indicated that she is not prepared to spend time with your client this weekend or next week, as she feels that she will be punished by her father for changing schools without her father’s permission.
23. There is no objective evidence of why [X] might be feeling this way, and certainly there is a significant lacuna in the mother’s evidence as to any conversations that she has had with the child explaining to her that it was indeed the responsibility of the parents to come to a joint decision about what school [X] was to attend and to encourage [X] that, notwithstanding the disagreement between the parents about [X]’s schooling in the upcoming school year, being 2017, she still ought to be spending time with the father, and that the mother had an obligation to comply with the Orders facilitating such time. It is not clear why the mother thought it appropriate to permit [X] to make the decision about whether or not she would be spending time with her father in accordance with the orders which the parties had agreed to and had been complying with since 1 October 2008. The mother’s evidence is silent about those matters.
24. The father, in his Affidavit, annexes a call log as well as some text messages between him and [X], being calls made on 4, 6 and 8 December 2016 as well as text messages between him and the child on or about 1 December 2016, 5 December 2016, and a message that he sent to [X] on 6 December 2016 which does not appear to have been answered. Certainly from those messages it appears that the child is saying to her father that she loves him and at least as at 5 December, that she is feeling much better. About what she might be feeling better about is not clear from those text messages, but certainly the father’s text messages to [X] show that the father is concerned about the child’s welfare. He is asking not only about her health – that is, about her eye, which seems to have been problematic for the child, but also indicating that she didn’t appear to sound happy and asking about whether she was okay. It is not clear why it is that communications between the father and child ceased abruptly on or about 6 December 2016. Certainly the mother doesn’t go into any evidence about this.
25. Tendered in the proceedings is correspondence between the parties’ solicitors, being Exhibit 1. The solicitors for the father in their letter of 11 January 2017 to the solicitors for the mother ask or rather inquire why it is that the child is not returning any calls or messages to the father. The father’s solicitors request a confirmation that [X]’s mobile number is the same and that the messages which the father has sent since 1 December have been received, and asking how and when the mother has encouraged [X] to communicate with the father. The response to that, which could only have been on instructions from the mother, is dated 16 January 2017, and it says as follows:My client has continued to regularly encourage [X] to contact her father and visit her father during the holiday period. [X] has not been open to such suggestions. My client confirms that [X] has received a number of text messages from your client but has not been able to respond, as her mobile number, which is organised through your client, has had restrictions placed on it so she cannot call out or message from her phone. Please confirm with your client whether he has placed the restrictions on her phone. In accordance with order 3.1 of the orders of 20 December 2016, my client has periodically encouraged [X] to communicate with your client and is prepared to immediately facilitate any wish expressed by [X] to communicate or spend time with the father.
26. It is not clear, and indeed, the mother’s evidence is completely silent about why, for example, she did not give her mobile phone to the child and say, “Why don’t you text Dad from this number,” or say, “Why don’t you call Dad from the land line, or from my phone, or from a payphone? Why don’t you write Dad an email?” There is simply no evidence except by way of her assertion of any encouragement by the mother of communication between the father and the child, particularly during a period when the mother is saying the child is upset with the father. There is certainly no objective evidence of any encouragement of that relationship by the mother as contained in her evidence.
27. Going back to the chronology and the submissions which were made on behalf of the mother, the mother made a unilateral decision on or about 7 December 2016 to change the child’s school. The mother communicated that unilateral decision to the father by way of solicitor’s letter dated 6 December 2016, where she advised that such a change would occur the following day and that she was going to notify both schools of the impending move. It was conceded by the mother’s legal representative during submissions that it was the mother who made the application for the child to be enrolled at (school omitted) at (location omitted), without consent or notification to the father prior to the mother doing so. She certainly knew that the father did not agree to such a move, because there had apparently been some discussions between them and agreement could not be reached about what school [X] would be attending in 2017.
28. The Court understands that the parents have a very difficult co-parenting relationship and that communications between them are particularly strained, and they have been for a number of years. However, this is no excuse for the lack of communication by the mother to the father in relation to the unilateral decision which she was going to make and indeed which she did make. The Court understands that the mother is an articulate, educated woman who is an (occupation omitted) at the (employer omitted) in Sydney; that she understands her obligations under the Orders in relation to complying with the Orders, and that she understands the importance of discussing with the father long-term decisions regarding [X]. Notwithstanding that, she has chosen to make these decisions unilaterally and take matters into her own hands when the parties could not come to an agreement about these matters.
29. The mother is the person with whom [X] lives, and it is clear from the annexures to the mother’s Affidavit, being the mother’s diary entries which are Annexure B to the mother’s Affidavit of 19 December 2016 that she does not hold the father in high esteem, and indeed that her views of the father are:
    1. that he is unreasonable in the way that he deals with [X];
    2. that he is inflexible in the way that he deals with [X]; and
    100. that his parenting style is not something which is appropriate, that parenting style being much more strict than the mother’s parenting style.
30. Interestingly as an example of the mother’s attitude towards the father, is the diary entry for 11 August 2016, starting with the words:Once again he has taken my scheduled time with [X].
31. The mother, in the Court’s view, is placing far too much responsibility on [X] in having to communicate her views to the father and is putting unreasonable pressure on the child in having to convince her father, for example, about the change of school and about his style of parenting. There is certainly no objective evidence which explains why the relationship between the child and the father was affected in the manner that it was in early December 2016 such that the child ceased spending time with the father contrary to orders which had been in place since 1 October 2016. It was submitted on behalf of the mother that the reason why this occurred is because the father said to [X] that the issue of her schooling was none of her concern, to paraphrase, and that it was an issue for the adults, that is, her parents, to decide.
32. Certainly the order for equal shared parental responsibility would support the father’s position. Whether he was diplomatic and appropriate in the way that he said these things to [X] is a different matter. And if he was, as [X] says, yelling at him when he said these things, then that is certainly not an appropriate way to parent an almost 13 year old and would explain [X]’s reluctance to spend time with her father, if indeed that is what she was expressing.
33. There are other issues which are expressed in the mother’s Affidavit as concerns raised by [X] in relation to the father’s parenting. Those are also apparent from the diary entries which the mother annexes to her Affidavit, as well as the evidence contained in Ms M’s Affidavit. A lot of these things that [X] complains about may be usual pre-teen and teenage complaints and about parenting styles and a child’s inability to see eye to eye with a parent who, to her mind, is being particularly strict and unreasonable and not willing to take her views into consideration. That is a matter which both of these parents will have to deal with, and if they continue down this road where they cannot agree on how they are going to co-parent [X], they are going to be faced with significantly more difficulties in the future as she starts to rebel more against parental authorities, which will no doubt occur. Already she is rebelling against her father’s authority, and the mother, instead of explaining to her why the father is acting in the way that he is and trying to make her understand her father’s point of view – and the Court says this because there is no evidence of the mother saying any of these things to the child – simply accepts the child’s point of view that she doesn’t want to spend time with her father, and then facilitates that refusal to spend time with her father.
34. It was submitted on behalf of the mother that the mother has tried a number of times and has encouraged the child to spend time with the father. The only evidence of that is what is contained in Exhibit 1 in the proceedings, and that is a periodical encouragement by the mother of [X] to communicate with the client. The fact that the mother says that she is prepared to immediately facilitate any wishes expressed by [X] to communicate or spend time with her father is evidence of the mother abdicating her responsibility as a parent to the child to make the decision about whether or not she will be spending time with the father in accordance with the orders of 1 October 2008. Certainly, the views of the child appear to be that she does not wish to spend time with the father, those views most recently having been expressed to Ms M as explained in the report of Ms M, who is the Family Counsellor.
35. Annexed to the mother’s Affidavit as well is a report of Dr K, Consultant Psychologist and Psychotherapist, who was engaged by the mother and who has seen the mother on two occasions and [X] on two occasions, and who has only spoken to the father by way of telephone. The most that the Court can draw from that is that there are a number of complaints made by [X] about the father’s parenting style similar to those which [X] makes to Ms M. It is also clear that the child has and has had a positive relationship with her father in that she is able to identify positive qualities in her father, although she appears to express that at times she has felt fearful because she has been unable to be herself and that she is always on guard trying to predict the father’s moods. There is no evidence that the child is placed at risk of emotional or physical harm while spending time with the father; certainly no evidence that any such risk would be unacceptable such that the child ought not be spending time with the father. Already there are orders in place for the parties to attend at family therapy, that order having been made by consent on 20 December 2016 and remaining on foot. Neither party seeks for that order to be discharged or varied, and to the Court’s mind that is an order that the parties would be well advised to continue complying with.
36. In all of those circumstances the Court is not of the view that the orders sought by the mother in the Short Minute handed up by her today are in the child’s best interests or that there is evidence sufficiently in support of the orders which the mother seeks. In relation to the orders for anger management and the father attending a parenting program, those are orders said to be supported by Dr K in Dr K’s report. The Court has already, during the hearing, made some remarks about the weight which can be placed on Dr K’s reports, given that those opinions seem to be based on a number of facts which are not only in dispute but have certainly not been established at this interim hearing. For that reason, the Court does not place any weight on the opinions of Dr K as contained in her report of 16 December 2016 that the father would benefit from attending a parenting program and that the father should attend an anger management program.
37. The Court is also not of the view that limiting the child’s time with the father in accordance with the proposal by the mother to vary the orders of 1 October 2008 is not in the child’s best interest, because what it is doing is enforcing the child’s view that she gets to make the decision about whether or not she spends time with her father. This is dangerous territory and the parties when they asked the Court to make the orders in 2008 must have had it in their minds that their child would be a teenager at some stage in the not too distant future, at the time – and that she would have behaviours which are typical of a teenager or a pre-teenager, including rebellion and oppositional behaviour towards her parents. To encourage a child not to spend time with her father because she does not get to do what she wants is not encouraging a positive relationship between the child and her father, and indeed might well play into the child’s hands about what she gets to decide in the future, about her own behaviours.
38. The Court is not going to make any orders for a different place of changeover because that is a recipe for disaster. The mother, in circumstances where she has not been able to facilitate time between the child and the father since early December 2016, take the child to McDonalds and attend changeover and ensure that the child spends time with the father is going to be placing too much of a burden on the mother particularly as [X] is already being resistant.
39. It will be up to the father to have to deal with [X] and her resistive behaviours when he turns up to school and to encourage her to come and spend time with him in accordance with the Orders which are in place.

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

Date: 9 February 2017