MOTHER SEEKS TO SUSPEND FATHER’S TIME WITH THEIR CHILD
Learmont & Learmont [2020] FCCA 3131 (17 November 2020)
This case involves the parenting arrangement of X and Y where there is a prior consented final order by the parties which the mother seeks to suspend.
Facts:
Mr Learmont “the father” and Ms Learmont “the mother” are the parents of X born in 2010 and Y born in 2014. It is the mother who alleges the children are at risk of abuse; whilst the father asserts that the mother is intent on disrupting his close relationships with X and Y through her mistaken or fabricated allegations of abuse.
The mother’s position is that the father’s time, with X, should be suspended and that and the father and X undergo a process of “reportable unification counselling” with Dr D.
The father’s position is that the children should be exchanged, at their primary school, henceforth, in order to avoid the mother’s influence at handover. He concedes X is an anxious child and is open to her spending an introductory period of afternoon time, with him, until overnight time is reintroduced.
Issue: Should the court suspend the father’s time with X as sought by the mother?
Law:
- Family Law Act 1975 60B, 60CA, 60CC
Analysis:
There is extremely limited evidence available to the court to explain why X is an anxious child. It may conceivably be part of her innate makeup; a response to her violent father; a response to her hyper-vigilant mother; or a combination of all these factors. In addition, it may be the case that she is either consciously or unconsciously influenced by her mother, who has a significant degree of antipathy for Mr Learmont.
At this stage, the court’s assessment is that, it would be both premature and unwarranted to restrict X and Y from having the significant degree of relationship, with their father, envisaged in the arrangements on which the parties agreed as recently as November of 2018.
Mr Learmont acknowledges that X is an anxious child, although he disputes that he is the root cause of her anxiety. Emblematic of this dispute is the disagreement currently arising between the parties as to how easily or otherwise he was able to persuade her to leave with him from her school, in the absence of her mother.
It encapsulates the problem confronting the court on how to balance the need for X to maintain a meaningful level of relationship with her father and all the benefits that it entails whilst not subjecting her to an unacceptable level of anxiety or distress.
In the court’s view, the best way to achieve this balance is to adopt the proposal advocated by Mr Learmont that is remove the mother from the delivery process as much as possible. Until the school holidays begin, the father can collect the children from their school; return should be comparatively easy.
Conclusion: Court orders that orders made November 2018 do continue and the father collect the children X from school at the commencement of his time and drop them off to school at the conclusion of his time.
