Father had affair when Mother pregnant and mostly absent from the life of the now 9 yr old. Father wanted regular time and to take daughter overseas for his marriage ceremony.
Child’s wishes taken into account but not followed.
Equal Parental Responsibility Order made.
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Shearer & Dempsey  FCCA 1452 (26 May 2017)
Last Updated: 27 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
SHEARER & DEMPSEY
FAMILY LAW – Parenting – father absent for eight of the child’s nine years – father recently expressing interest in involving himself in his daughter’s life – proposed 10-day overseas trip – whether trip should be sanctioned –
family consultant in favour of trip – order made for child to travel overseas with father.
MLC 3583 of 2016
25 – 26 May 2017
Date of Last Submission:
26 May 2017
26 May 2017
Counsel for the Applicant:
Mr A. Combes
Solicitors for the Applicant:
Peter Szabo Family Law
Counsel for the Respondent:
Ms B. Kildea
Solicitors for the Respondent:
Calley Rajah Family Lawyers
Counsel for the Independent Children’s Lawyer:
Ms R. Teicher
Solicitors for the Independent Children’s Lawyer:
Victoria Legal Aid
BY CONSENT IT IS ORDERED –
(1) That all previous parenting orders with respect to the child X born (omitted) 2007 (“the child”) are discharged.
(2) That the father and the mother have equal shared parental responsibility for the child.
(3) That the child live with the mother.
THE COURT FURTHER ORDERS –
(4) That the child spend time and communicate with the father as follows –
- (a) during school term periods, in each alternate week from the conclusion of school (or 3.30 p.m. in the event of a non-school day) on Friday until the commencement of school (or 9.00 a.m. in the event of a non-school day) on Monday, commencing on the first weekend of term 1 in each calendar year, commencing 2 June 2017;
- (b) during school term periods, in each alternate week from the conclusion of school on Tuesday until the commencement of school on Thursday, commencing 6 June 2017;
- (c) for one half of each of the school term holidays (being the term 1, 2, and 3 holidays) as may be agreed and in default from the conclusion of school on the last day of term until 12 noon on the middle day;
- (d) for one half of the long summer holidays as may be agreed and in default on a week-about basis, commencing from the conclusion of school on the last day of term until 12 noon 7 days later, and alternating thereafter in seven-day blocks commencing and concluding at 12 noon;
- (e) at Christmas as follows –
- (i) in 2017 and in each alternate year thereafter, from 5.00 p.m. on Christmas Day until 5.00 p.m. on Boxing Day;
- (ii) in 2018 and in each alternate year thereafter, from 5.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day;
(f) in the event the child is not in the father’s care on the occasion of Father’s Day, from 9.00 a.m. on that day until the commencement of school on Monday;
- (g) in the event the child is not in the father’s care on her birthday, from 3.30 p.m. on that day until 6.30 p.m. on that day in the event it falls on a school day, or from 2.00 p.m. until 7.00 p.m. in the event it falls on a non-school day; and
- (h) at such further or other times as may be agreed between the parents from time to time.
(5) That notwithstanding any other provision within these orders the child shall be in the mother’s care as follows –
- (a) at Christmas, as follows –
- (i) in 2017 and in each alternate year thereafter, from 5.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day; and<li “=””>(ii) in 2018 and in each alternate year thereafter, from 5.00 p.m. on Christmas Day until 5.00 p.m. on Boxing Day.
(b) in the event the child is not in the mother’s care on the occasion of Mother’s Day, from 9.00 a.m. on that day until the commencement of school on Monday; and<li “=””>(c) in the event the child is not in the mother’s care on the child’s birthday, from 3.30 p.m. on that day until 6.30 p.m. on that day in the event it falls on a school day, or from 2.00 p.m. until 7.00 p.m. in the event it falls on a non-school day.
(6) That the father is permitted to travel outside the Commonwealth of Australia, the (country omitted) between 16 June 2017 and 26 June 2017 and for such purpose each of the parents do all acts and things to enable the issue of a passport in the name of the child, at the father’s costs.
(7) That each parent is at liberty to communicate with the child by telephone every third day that the child is not spending time with that parent with the parent who is not with the child to make the call.
(8) That the child spend time with the mother not withstanding anything to the contrary contained in these orders, from 9.00 a.m. on 1 October 2017.
(9) That the father forthwith obtain a suitable freestanding bed for the child.
(10) All extant applications are dismissed.
FEDERAL CIRCUIT COURT
MLC 3583 of 2016
REASONS FOR JUDGMENT
- This case concerned X born (omitted) 2007 (“X”). Among other things in this litigation, X’s parents were in dispute about whether the father Mr Shearer (“the father”) should be permitted to travel to (country omitted) in early-June 2017, a matter of days from the hearing of this trial. X’s parents were also in dispute about the time the father should spend with X on an ongoing basis. The mother Ms Dempsey (“the mother”) opposed the concept of the father travelling overseas with X.
- On the mother’s version of events, the father has been absent for essentially eight years of X’s life, only recently emerging. The mother opposed X travelling to (country omitted) as it was for –
- the father’s wedding to his new wife; and
- a longer duration than X has ever been apart from her mother,
and was in circumstances in which X’s school had not provided its written consent to the time X would be out of school.
- The father urged me to permit him to travel with X because –
- travel to (country omitted) will provide X with a cultural experience she has not seen previously;
- the time with the father – up to 10 days in all – will enable a bond to progress between X and the father as well as with the father’s new wife’s children;
- the event in (country omitted) is a small intimate family event of special significance to the father; and
- time between the father and X will go some way to breaking down what the father says are concerning indicators of X’s alignment with the mother and of the mother’s enmeshment with X.
- This application was urgent. The time between the trial and the proposed overseas trip did not permit a vast amount of critical reflection. However, as is always the case in one such as this, there being no evidence of physical or emotional family violence the predominant issue to be resolved is X’s best interests. Specifically, I am required to jettison the wishes of the parents insofar as they focus on themselves. Instead, I am required to determine whether to permit the father to travel to (country omitted) against the single measuring stick of X’s best interests.
- Through the family consultant Ms A’s evidence was adduced to the effect that X did not wish to travel overseas with her father. The mother cited as reasons for opposing the proposed trip that X would miss one of her relative’s confirmation as well as church and that X would miss the involvement of a mother who, to date, has been the primary carer. The mother also said X would not see her siblings for so long as X was overseas. Against that backdrop, I am required to urgently rule on the question of whether the father should be permitted to travel for nine to ten days to (country omitted). I have done that and I have also considered broader issues.
- For the reasons that follow I am of the view that the father’s application should be granted so that X can travel to (country omitted) with the father. In the course of these reasons I have also addressed the other aspects of the father’s time to be spent with X.
Short factual narrative
- X’s mother and father commenced to live together in (omitted) 2004. They married in (omitted) 2005. X was born in (omitted) 2007. The father and the mother separated in February 2008 when X was a few months old. The parents divorced in early-2010. The mother remarried soon thereafter. She has cared for X for the whole of X’s life, paying private school fees of recent times. There was no dispute in the case that X should live with the mother and that both parents should have equal shared parental responsibility for X.
- Before going to the evidence of the family consultant in this case, it is useful to record the evidence about the father’s prolonged absence from X’s life for eight of her nine years. According to the mother – and this was an admitted fact – the father commenced an adulterous affair while the mother was pregnant. They separated in early-2008. In the period between 2008 and the commencement of this proceeding in 2016, the father had next to no contact with X. The mother contended that the father missed scheduled visits, that he failed to communicate with X by telephone and that, when he was in X’s presence, he was frequently distracted on business-related telephone calls.
- The mother gave evidence that the father frequently cancelled time he was otherwise to have had with X. The mother deposed to the father having shown little empathy towards X since her birth. The mother put into evidence a spreadsheet detailing the history of contact between X and the father in the period April 2008 to May 2016. The mother’s counsel specifically questioned the father about those times, inviting him to offer his version. He was unable to do so. I accept the mother’s contentions in that regard.
The evidence of the family consultant
- Ms A gave evidence, having observed the mother, the father and X interacting. Ms A was a considered, careful witness whose evidence I accept without reservation. I was most impressed by her, especially in her approach towards divining ways forward for X whose interpersonal relationship with her mother was so aligned that it exhibited early signs of enmeshment, a term Ms A explained carefully in her evidence.
- Ms A took the view that the overseas trip was to the benefit of X. Ms A did not regard the proposed visit as having any disadvantageous characteristics to X. She said that X, at over nine years of age, was developmentally old enough to cope with the trip. Ms A said it was unusual for a child of X’s age not to have been staying over at friends’ houses. Ms A was not at all troubled by a holiday having up to 10 overnight aspects. That accorded with my sense of proper development of a child of X’s age in this case.
- Ms A explained her rationale for approving the proposed trip on several grounds. First, she said it was an age-appropriate event for X. Second, Ms A said it was a developmentally appropriate event for X. Third, she said it was an event that would assist X in better forming important bonds with her new family members, that is to say, members of the father’s new wife’s family. Fourth, it would enhance the better development of a relationship between the father and X which, if left undeveloped for much longer, was at risk of permanent loss. Fifth, it would serve to relieve the tightening consequences of the current level of alignment between the mother and X that Ms A said was at such a point that I construed her to be saying it was concerning.
- None of the reasons advanced by the mother for refusing the trip found favour with Ms A, especially X missing one or more visits to church, X missing the mother or X missing the mother’s children born to her second husband. I agree, none of those reasons had merit, especially in the context of a nine-year-old who was significantly intellectually advanced. The benefit of the trip to a nine-year-old are manifest. That much is self-evident. It seemed to me that the mother’s resistance to X taking the trip was more, as Ms A said, a projection of the mother’s own insecurities, as well as ongoing punishment for the father’s marital infidelity, than it was the mother’s resistance being soundly based.
- The wishes of X assume considerable importance. On behalf of the mother, counsel opened to the effect that X had no wish to travel to (country omitted). Ordinarily, if true, that evidence would have been powerful information that may have told against the wisdom of permitting the father to travel with X. However, the child’s wishes were not quite as they seemed. Ms A addressed the matter comprehensively. She did so in the context of the seemingly antagonistic relationship that was revealed between the father and X when X was observed with the father.
- Ms A said X presented at the interview as if the father had no role in her life. Ms A said that presentation had no rational explanation. So when Ms A observed the child as being rude towards her father or impolite, Ms A took the view that such behaviour was explicable on the basis that it was part of the enmeshment that existed between the mother and X. In other words, X had absorbed the emotions of the mother to such an extent that the mother’s attitude towards the father had become X’s attitude towards the father. Ms A led me to understand that the attitude displayed by X towards the father was not alarming. I have proceeded in this case on that basis.
- That is not to say that it is appropriate to make orders over the expressed wishes of X. The wishes of a child old enough to rationally explain her wishes should be taken into account. A nine-year-old girl, an intelligent girl as is X, who conveyed either positive or negative wishes about her father should have those wishes taken into account, so long as those expressed wishes were not by-products of enmeshment. Put differently, it was appropriate to subject the expressed wishes of X to careful scrutiny where those expressed wishes were not free from enmeshment. I took the view that X’s views of the father, as expressed to Ms A, were likely to be projections of the enmity that continues to exist between the mother and the father.
- To my mind, the mother continues to carry a high degree of distrust towards the father and is seemingly unable to cast aside her anger that initiated from the separation of the two. That told me that the views of X, as expressed to Ms A, were susceptible of misconstruction. I prefer the construction given by Ms A in respect of X’s view. There can be no doubt that the father was absent from X’s life or most of it. He is not to be applauded for such a cavalier approach to date in his obligations as a parent. Quite frankly, there is considerable force in the submission of counsel for the mother that the father’s extraordinarily casual approach to parenting to date is suggestive of the fact that he has little insight into his role as a parent.
- Equally, the mother shouldered the whole of the burden of raising X to date, including bearing the costs associated with providing X with a private school education and maintaining her religious instruction, a matter of very considerable importance to the mother. It cannot be ignored that the mother remarried in (omitted) 2011, a year after her divorce from the father, and that since (omitted) 2011 X has had the benefit of another male influence in her life. To some extent, the mother’s hardships as a single mother were endured between 2008 and 2011 but not beyond. Since 2011 X has lived in a home that is loving, safe and nurturing. But that is only part of the analysis. Ms A told me and I accept that daughters risk long-term psychological consequences, including the erosion of feelings of self-worth, unless they enjoy substantial time with their biological father.
- In this specific case, Ms A said X’s age is such that she should immediately have substantial time with her biological father in order for the destructive consequences mentioned above to be averted. Not for one moment do I doubt that the mother’s husband has made anything but a hugely beneficial contribution to X’s upbringing. He has. The mother has distinguished herself in her role as a mother. But the point of importance is the desire for X to have a meaningful relationship with both parents. No allegation of family violence is relevant in this case that might otherwise have told against the importance of both parents having a meaningful relationship with X. It seems to me to be necessary to give effect to the specific legislative pronouncement of the effect found in s.60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”).
- For those reasons, in my judgment the father should be permitted to travel to (country omitted) with X for the father’s wedding. Before leaving the subject of travel, let me impart some other observations. It was presumptuous in the extreme for the father to have booked and paid for the trip in the expectation that he would obtain this court’s leave for him to do so. I regard that conduct as the high point of arrogance. It told me that the father was a risk-taker and that, on this occasion, he played off the personal benefit of obtaining an order in his favour when risked against the loss of the costs associated with X’s travel if he failed.
- The father’s history of once being unemployed to now having over 26,000 clients and employing people in several countries also spoke of his fluctuating successes in life. I take the view that Ms A is likely to be correct when she said that – admittedly, in a different context – the father may not be able to adequately prioritise X’s best interests. At least some safeguard against risks associated with his want of a full perception of X’s best interests is secured by an order for equal shared parental responsibility, for X to live with the mother and for the father to have time with X in a much controlled environment.
The father’s time with X
- The mother put forward a formula for time between X and the father. That formula involved X spending time with the father in school holidays and in a particular regime during the first week and, in a different regime in the second week. Various reasons were advanced for that formula including an alleged stress reaction suffered by X after time with the father, headaches and cold sores. The father proposed a different regime. Ms A gave what I considered to be the best evidence on point. In essence, she said that the more time X spends with the father the better it is for X.
- When asked which of the father’s proposal for time or the mother’s proposal for time was better Ms A told me that, in the circumstances of this case, a week about regime was best for X in holiday time. That accorded with my construction of events as well. I propose to make orders to that effect. It was pointed out that X’s bedding is suboptimal when with the father as he lives in rented accommodation and X sleeps in a pull-out trundle bed. That must come to an end at once so that X has her own bed. That is to say she must have a standalone, single bed, off the floor and not a trundle bed. The father must immediately rectify that at his cost. In all other respects on a week-by-week basis X’s time with the father should be in accordance with the father’s minute.
- In parenting cases, of which this is one, specific subsections of s.60CC(3) of the Act require me to address, one at a time, an array of matters that go to the question of a child’s best interests. While lengthy, there is no shortcut. Consistent with those obligations, let me turn to a consideration of each of the many subsections.
- So far as subsection (a) is concerned, I have already addressed the views expressed by X.
- Turning to subsection (b), X has a very strong bond with her mother and a developing bond with her father. X also enjoys a favourable bond with her mother’s second husband.
- As to subsection (c), there can be no doubt that the mother has behaved in an exemplary way, taking every opportunity to spend time with X, to communicate with her and to participate in decision-making about major, long-term issues in X’s life. The same cannot be said of the father. He has been absent for most of X’s life. But at a critical juncture, in fact, at a moment when events are at the crossroads of almost being beyond redemption, the father has enlivened his role as a father. In X’s best interests, he should not be shut out from that. Nor does the mother say he should be. I have taken into account the specifics of this subsection.
- As to subsection (ca), the father has been near derelict in his obligations to maintain X. The mother has maintained her. The father, despite his seemingly opulent present state, has paid no more than the sum at which he has been assessed to meet child support. That is disgraceful. If indeed he is as wealthy as he has asserted, the father must begin in a meaningful way and immediately to maintain his daughter.
- Subsection (d) addresses the likely effect of any changes in X’s circumstances or matters there set out. Aside from the overseas trip and the week-about holiday time, nothing will emerge.
- As to subsection (e), so far as I can see there are no practical difficulties in X spending time with the father. To my mind, any rearrangement of church time can be readily accommodated. Put differently, while religious observances may be important to some, in this case I can see no legitimate basis for preferring church time so as to dominate as a factor when measured against time the father spends with his child.
- Subsection (f) invites a consideration of the capacity of various people, mostly the parents, to provide for the emotional and intellectual needs of the child. There was no evidence that called into question the provision of those needs by either parent.
- Subsection (g) was not raised as an issue by any party.
- X is not Aboriginal or Torres Strait Islander, so subsection (h) was not relevant.
- As to subsection (i), the attitude of each parent to her or his responsibilities of parenthood was a point upon which the mother focussed. She singled out the father’s absence for eight years and his rapid claim to increasing time as demonstrating a lack of parental insight. While brash, flash and arrogant, I would not go so far as to say that the father was clueless in his parenting. To the contrary. Ms A said he was warm in his interaction with X. She encouraged the father’s time with X. I agree.
- The father’s email in March 2016 indicating his aggression to the mother must cease immediately.
- There was no evidence of family violence, aside from the discourteous emails, so subsections (j) and (k) were not applicable and none was urged by counsel.
- So far as subsection (l) is concerned, the orders I have made strike me as least likely to lead to further litigation. Of course, only time will tell.
- The father must focus on X and he must immerse himself deeply in her life, just as the mother has done since X’s birth. The mother must loosen her grip on controlling X’s life. The mother has been wonderfully protective to date but the time has come for X to better know her biological father. If she does not, she is at risk of suffering psychological issues later in life about which Ms A spoke.
- For those reasons I have made the orders set out earlier in these reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Wilson
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties. Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.
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