George & Valentine [2016] FCCA 2396 (24 June 2016)

Last Updated: 26 September 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEORGE & VALENTINE

[2016] FCCA 2396

Catchwords: FAMILY LAW – Parenting – where parents agree on major issues but cannot agree on specific issues relating to the time the father is to spend with two young children – where there is considerable animosity between the parents.

Legislation: Family Law Act 1975, ss.60CA, 60CC(2) and (3)

Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore (2007) FamCA 1383

Applicant:

MR GEORGE

Respondent:

MS VALENTINE

File Number:

DGC 4066 of 2012

Judgment of:

Judge Small

Hearing date:

22 June 2016

Date of Last Submission:

22 June 2016

Delivered at:

Morwell

Delivered on:

24 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Pavone

Solicitors for the Applicant:

Warren Graham & Murphy Lawyers

Counsel for the Respondent:

Self represented

ORDERS

(1) There be final parenting Orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 24 June 2016 (“the Minute”).
(2) The lawyers for the Applicant engross the Minute and the Orders of the Court and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.

AND THE COURT FURTHER ORDERS THAT:

(3) In addition to the times set out in the Minute of Consent Orders sign by the parties this day, the Father shall spend time and communicate with the children X born (omitted) 2009 and Y born (omitted) 2010 (“the children”) as follows:

• (a) During school terms from after school on each alternate Friday to 10:00am on Saturday commencing on the first Friday of the third school term 2016;
• (b) From 4:00pm on Christmas Eve to 11:00am on Christmas Day in 2016 and in each alternate year thereafter;
• (c) From 11:00am on Christmas Day 2017 to 5:00pm on Boxing Day in each alternate year thereafter;
• (d) From after school until 7:30pm on the Father’s birthday each year should it fall on a school day and from 3:00pm to 7:30pm should it fall on a non-school day;
• (e) From after school to 7:30pm on each of the children’s birthday in 2016 and in each alternate year thereafter should they fall on a school day;
• (f) From after school or 3:30pm to 7:30pm on the day before each of the children’s birthdays in 2017 and in each alternate year thereafter should they fall on a school day; and
• (g) For a period of four (4) hours by agreement on each of the children’s birthday should they fall on a non-school day and in default of agreement from 10:00am to 2:00pm in even-numbered years and from 2:00pm to 6:00pm in odd-numbered years.

(4) All extant applications be otherwise dismissed and the proceedings be removed from the list of pending cases.

IT IS DIRECTED THAT:

(5) The Minute be placed upon the Court file and marked Exhibit “A”.

AND THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MORWELL

DGC 4066 of 2012

MR GEORGE

Applicant

And

MS VALENTINE

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

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. The matter of Valentine & George relates to the care arrangements for two children, they being X, born on (omitted) 2009 and who is now seven and a half and Y, who was born on (omitted) 2010 and who is therefore approaching her sixth birthday.
3. The parties to the proceedings are these children’s parents, Ms Valentine and Mr George. Their relationship began in about (omitted) 2004 and they were married on (omitted) 2007.They separated in April 2011 and were divorced on 8 October 2014.
4. X and Y are the only children of this marriage, although Mr George has two other children from a previous relationship who apparently he does not spend time with. The husband initiated these proceedings at first instance by filing an Initiating Application for parenting and property orders on 24 December 2012.
5. The property issues, to the parties’ great credit, were settled at a conciliation conference on 2 May 2013.
6. Final parenting orders were made by consent in those proceedings before Judge O’Dwyer on 13 November 2013 and these proceedings were instituted after the wife ceased the time with the children which was provided for in the orders of 2013 on Wednesday evenings.
7. The husband then filed on 17 June 2015 a Contravention Application in relation to those matters and in response the wife filed this Initiating Application on 20 August 2015 seeking a variation of those orders.
8. The matter first came before the court on 21 September 2015 where interim parenting orders were made by consent which essentially confirmed the 2013 orders with minor variations and I ordered that a family report be prepared. The matter was then adjourned to the February 2016 sittings for a final hearing.
9. A family report was released on 15 February 2016. At the hearing on 29 February 2016, the matter was not reached and it was adjourned to this circuit for final hearing.
10. The trial came before me on 22 June 2016 which is two days ago. The parties again, to their great credit, had been able to decide most issues including major issues like parental responsibility and where the children will live but there were then eight issues identified at the beginning of the trial which remained unresolved. The trial ran for about half a day with only the parties as witnesses and both were subject to cross-examination. The wife was represented by counsel and while the husband was represented up to the door of the court, so to speak, he was self-represented at trial.
11. During the hearing, the issues in dispute were reduced from eight so that by the end – and again greatly to the credit of the parties – there were only three left for me to decide: those issues being first whether in the alternate week to the full weekend time the children should spend every Wednesday night overnight with the husband or whether it should be Friday nights on an alternate week basis.
12. The second issue was what should happen about Christmas arrangements, whether the whole of the Christmas period should be spent with each parent every second year, or whether the half of each Christmas period should be spent with each parent each year.
13. And the third issue was what would happen with the children’s birthdays. The father is seeking overnight time with the children on their birthdays, the mother seeking the status quo.
14. Indeed, the mother sought the status quo in all three of those issues and the current orders in relation to them are that the father spends each Wednesday from 4.45pm to 7.00pm and then at Christmas, it’s the alternate Christmas Eve and Christmas Day arrangements and in relation to the children’s birthdays, the husband is spending from 5.00pm to 7.00pm on each child’s birthday.
15. So to issue one, should the children be spending every Wednesday night overnight or should it be alternate Friday overnight? The current situation is that the children spend the afternoon and evening with the husband where they have dinner and then they return to their mother. The husband wants to extend that to overnight in each week so that he picks the children up from school on Wednesday and takes them back on Thursday. The wife wishes to institute overnight Friday time so that the husband would pick the children up on alternate Fridays to the already agreed full weekend from Friday to Monday.
16. On the alternate Friday, the wife seeks that the husband pick the children up from school and return them to her at 10.00am the next morning. The wife says that the children are restless and tired when they come back from the husband on Wednesday evenings and that they go to bed in that state, wake up tired and then by the time they come home from school they are absolutely exhausted. The wife also says that if the overnight time were to be on the Friday, then that would be less disruptive for the children because they would know that they would go to their father every Friday and one weekend they would stay the whole weekend and the other weekend they would come home on Saturday.
17. The husband says that he thinks it would be less disruptive for the children to stay overnight on Wednesday because they could go to bed as normal and not go back to their mother. He also said that Wednesday is what the children have always known. They have spent each Wednesday evening with him and that has been the regime for a long time now. The Friday overnight proposal would allow the father a little more leisure time with the children because the children would not need to be returned until 10.00am, so there would not be the before school rush and that is one of the advantages.
18. The other advantage, of course, is the issue of it being every Friday night that the children would go with their father. The father could not actually say why he wanted Wednesday night other than that it had always been like that and that it was what the children wanted. However I note that that is in dispute, that the mother says that that is not what the children want, that they in fact do not like going on the Wednesday evening. The father didn’t have any particular issue with the Friday night only that it had not been the case so far.
19. The second issue was what should happen at Christmas and what the father wanted was that the children be with him from 3.00pm on Christmas Eve to 3.00pm on 1 January every second year and the wife wants to continue the situation where the parties rotate Christmas Eve to Christmas Day and then Christmas Day to Boxing Day each year but she says that she would be happy for the children to spend the week after Christmas with the husband as he has compulsory annual leave at that time.
20. The husband says that he would like to take the children away to see family over the actual Christmas period and he also says that he thinks that the changeover between Christmas Eve and Christmas Day and Christmas Day and Boxing Day are disruptive for the children. So the issue is whether the children spend half of each year or the whole of each alternate year with the husband.
21. Then we come to the birthday arrangements and as I said, the husband wants the children from 3.00pm or after school to before school or presumably a similar time the next morning because of course X’s birthday being (omitted) is likely to be either the last day of the holiday or the first day of school perhaps. So it is either 3.00pm or I assume after school. Y’s birthday is in (omitted) so it is always going to be during the school term. The wife wants the husband to spend time with the children from five till seven on each of the children’s birthdays and for her to spend 5 till 7 on each of the children’s birthdays if they are with the husband on those days.
22. Birthdays of course are very special times for children and it is not unusual for children to have two kinds of birthdays. It was put to me that the father would see the children in any event. If it were the term time for Y’s birthday, then he would see the children on the weekend before or the weekend after the birthday and that therefore there was perhaps not a reason for him to have time for them on her birthday. I do not quite accept that but there are compromises to be made and I hope that the orders that I have crafted will provide those compromises.
23. In general, the wife impressed in the witness box as a mother who is happy for the children to have a close and solid relationship with the father. I note that, however, there are criticisms of the mother’s attitude in both the family report and in the notes provided by the child X’s diabetes paediatrician and she would do well to think about that.
24. And I say the same for the father, that there are issues where the father presents as a serious and fairly intense sort of man whereas the mother showed herself to be flexible in terms of the times.
25. The mother was more than happy to double the time that the father spends with the children and that has been reflected in the orders that have been agreed. She presented as being flexible and child focused and appeared to be a little nonplussed that the matter had not settled but nevertheless it had not and we found ourselves at trial.
26. The husband frankly, impresses as being slightly less child focused and more self-focused. His proposals were more about what he is trying to achieve – and that is a phrase that he used several times during his evidence – than about what is actually in the children’s best interests.
27. For instance, he could not see any problem with Y only seeing her mother for pre-school time on her birthday because he wanted to see Y overnight and that would have meant only seeing her mother for a short time on the morning of her birthday.
28. The attitude of the parents towards each other is fairly negative. The father’s attitude to the mother was shown when he was asked if she was a good mother in giving his evidence and he was simply unable to agree to that.
29. He was simply unable to say that the mother was a good mother, even when pressed, which makes one wonder whether he is able to actually positively facilitate the children’s time with the mother. They know that the parents do not like each other and that is not a good thing for children to know.
30. At the same time, there is evidence that the mother has been antagonistic towards the father and I think I may have said during the trial that when people separate there are always perfectly naturally, feelings of disappointment, of hurt, of anger that are associated with the separation of a relationship.
31. But when children are involved, people need to be able to separate those feelings from their responsibilities as the parents of these children as they will be for the rest of their lives.
32. When I look at the law in relation to these matters, of course, section 60CA of the Family Law Act 1975 (“the Act”) tells me that any parenting order I make must be in the best interests of the children. That must be my paramount consideration. It is not about what the parent wants or what a parent thinks is best. It is about what I think is in the best interests of the children. I note in this case that these children are still quite young.
33. The Act then goes on to set out 16 separate matters in section 60CC, subsections (2) and (3), which the court must take into account when looking at what is in the best interests of the children.
34. The first two of those are said to be primary considerations. They are the benefit to a child of having a meaningful relationship with both parents and the need to protect a child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. I note here that exposing a child to family violence – and that includes verbal altercations – is an act of child abuse in itself under the Family Law Act as set out in the definition of abuse. And I would impress that upon these parents.
35. The word “meaningful” has been discussed in many cases before this and the Family Court and it is said to be all the things one would expect – significant, important, advantageous, healthy – all of those things. And those matters were, I think, set out most quotably in the judgment of Brown J in the matter of Mazorski v Albright (2008) 37 FLR 518 .
36. And in a case called Tait & Dinsmore (2007) FamCA 1383 Cronin J set out a further addition to those terms in the definition of meaningful where he said that. For a relationship between a parent and child to be meaningful the parent must provide a role model for the child. The parent must show the child what it is to be a parent, what it is to be a citizen in our society.
37. So that if the parent is showing the child a model of conflict and a model of dispute between the parents then that diminishes the meaningfulness of the relationship between the parent and the child –that is not only between the parents but between the parent and the child. I think that is a very salient point to make.
38. With respect, I agree with his Honour in his definition of the word “meaningful”.
39. The children also, of course, need to be protected from psychological harm or physical harm from abuse or neglect or being exposed to family violence.
40. I think there is little evidence of these children being physically at risk but they are certainly emotionally at risk from the conflict between their parents and being exposed to it. X was very clear with the family report writer that he knows that his parents do not like each other. He particularly knows that his mother does not like his father, which is a very unfortunate situation because children ought to be protected from the feelings that their parents have as ex-partners as I have said.
41. So I need to craft orders, when looking at those two primary considerations, which promote a meaningful relationship between both parents and X and Y and which protect X and Y from the conflict between their parents.
42. The Act then goes on to set out a further 14 matters. And, as this is a final hearing, I must address them.
43. The first of those 14 matters is any views expressed by the children and any factors such as their maturity or level of understanding that the Court thinks is relevant to the weight it should give to those views.
44. What is very clear is that these children love their father. They have a good relationship with him. Of course, they are still fairly young. X is seven and a half and Y is approaching six years old so they are still very young. Their views therefore are not determinative by any means and, indeed, are not given particular weight simply because at that age children are very suggestable and they are very influenceable – if I can use that word.
45. They are easily influenced by the views and the feelings of the parents who they love dearly and, therefore, their views do not hold much weight in these proceedings.
46. I need to take into account the nature of the relationship of the child with each of the child’s parents and any other person. And there seem to be positive relationships with each of the children’s parents and with Ms F, their stepmother. They both told the family report that their relationship with Ms F was positive and that they enjoyed being with her as well as being with their father.
47. I need to take into account 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 in relation to the child and to spend time with the child and communicate with the child.
48. As I said right at the beginning, it is to the parents’ great credit that they have been able to decide the long-term issues of parental responsibility and where these two children will live. Neither of them can be said to have neglected spending time with these children, although I do notice that the mother makes some criticism of the father for cancelling times with the children.
49. That was not really canvassed in the evidence given before the Court in person and I note that there are times when things come up and parents are unable to fulfil their responsibilities under orders. But, of course, if that was happening on a regular basis even if it were not frequent, that would give some indication of a parent’s willingness to spend time with children.
50. I then need to look at the extent to which each of the child’s parents has fulfilled or failed to fulfil that parent’s obligation to maintain the child.
51. There was no evidence provided at trial in relation to that issue and I believe that Mr George is paying child support as assessed by the Department of Human Services (Child Support).
52. I need to look at the likely effect of any changes in the child’s circumstances, including the effect on the child of any separation from either of the parents or any other child or person with whom he or she has been living.
53. I note here that the difference is only one night per fortnight in the proposals.
54. If I accept the mother’s proposal then the time would be 10 nights to the mother, four nights to the father. If I accept the father’s proposal it would be nine nights to the mother and five nights to the father. So I take that into account. It is not clear what the particular difference would make to the children – what effect that would have on the children. And, given that there is also provision for other times in the orders that are agreed, I do not think that is a major issue to take into account.
55. I need to take into account the practical difficulty and expense of a child spending time with a parent or communicating with a parent and whether that would influence the ability of a child to maintain a relationship with a parent but that does not seem to be an issue in these proceedings as the parents live relatively close to each other.
56. I need to look at the capacity of each of the child’s parents and any other person with whom the child is coming into contact to provide for the needs of the child, including their emotional and intellectual needs.
57. There is no evidence that there is any question about either party’s ability to take care of these children’s material needs. They are well fed. They are well clothed. They are well taken care of.
58. The question of their emotional needs comes up in the context of the conflict which exists between the parents. And children become confused and distressed when they see their parents – both of whom they love – having altercations or speaking in negative terms of each other. I certainly think both these parents need to address their behaviour in that regard.
59. I need to look at 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. That is usually addressed in terms of cultural differences, where the parties have different cultural practices. In this case I have talked about the maturity of the children and how they are both very young and both still very dependent on their parents. And there is one characteristic of one of the children that needs to be addressed.
60. And that is X is an insulin-dependent diabetic. That means that both parents need to be very vigilant about making sure that he takes his tests – his prick tests – before and after each meal and that he takes his insulin when needed. There is some dispute between the parties about the other’s ability to do that and the other’s willingness to insist on that but all the Court can do is say that this is a life or death situation for this child and he must be treated for his diabetes in a way that is appropriate and which is prescribed for him by his medical practitioners.
61. I do not need to consider the issues surrounding a child’s Aboriginality. There is no evidence before me that there is any Aboriginal heritage involved here.
62. The next thing I need to look at is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. There is no doubt that these parents love these children. They are very lucky children in that regard. They have two parents who love them and a step-parent who loves them. And they are, in that sense, very lucky.
63. There are no drug and alcohol issues involved at this stage that I can see and the only issue, in terms of the attitude of the parents, is their attitude to each other which affects their attitude to the responsibilities of parenthood. I do not think I need to go into that any further. I think I have said as much as I need to say about that.
64. I need to look at any family violence involving the child or a member of the child’s family and any family violence orders. The behaviour that is reported to have been exhibited by both parties during changeovers and during the relationship could be considered to constitute family violence. And, again, I have said as much about that as I think I need to say.
65. I do not believe there is a family violence intervention order in place at the moment and that is an encouraging sign. Let us hope that the parties are able to contain their feelings towards each other at changeover so that those issues do not arise. And I note that the parties, quite sensibly, have sought for most regular changeovers to occur at school, which means that those opportunities for conflict are not presented.
66. I then need to look at whether it would be preferable to make an order that would be the least likely to lead to the institution of further proceedings in relation to the child.
67. I note that these proceedings were instituted quite soon after the final orders were made in the last proceedings. I do not criticise that because they were instituted in response to a contravention application and there is little doubt that if contravention proceedings had proceeded there may well have been some finding made. I do not know what it would have been because I have not explored that to any great extent. But the fact that these proceedings were preceded almost immediately by contravention proceedings tells me that if I make orders that are not going to be complied with then there is going to be trouble.
68. So I have crafted orders which I hope will mean that that will not happen. The parents have left this decision to me and I hope that they will both respect that decision and basically get on with their lives with these two lovely young children.
69. And then the Act gives me a very wide discretion in being able to take into account any other factors and circumstances that the Court thinks is relevant. I actually do not think there are any extraneous matters that the Court needs to consider in relation to all those issues.
70. Those are the orders of the Court. I have made those orders on the basis that children deserve to spend part of their birthday period with each parent and it is the same for Christmas. Those are the two major celebrations for children and I think it is in their best interests to spend those times shared with both parents

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 20 September 2016