Alberton & Alberton

[2008] FamCA 249

FAMILY COURT OF AUSTRALIA

ALBERTON & ALBERTON [2008] FamCA 249

FAMILY LAW – CHILDREN – interim – parental responsibility – with whom a child lives – with whom a child spends time – consideration of expert reports – consideration of views expressed by 13 year old child – shared parental responsibility to continue – child to live with father and spend time with mother every two out of three weekends and half of school holidays pending final hearing – child to attend independent assessment by medical practitioner.

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-285

APPLICANT: Mr Alberton

RESPONDENT: Mrs Alberton

INDEPENDENT CHILDREN’S LAWYER: Mr B. Bowler

FILE NUMBER: ADF 1883 of 1998

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Read

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr B. Bowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. Paragraph 5 of the order of the 17 May 2006 is discharged.

1. Paragraph 1of the order of the 2 January 2007 is discharged.

1. That the Independent Children’s Lawyer arrange an independent assessment by a suitably qualified medical practitioner in relation to the diagnosis of … (“E”) born on the … August 1994 generally and in particular concerning the allegations of Attention Deficit Hyperactivity Disorder, tic and Asperger’s Disorder.  Such assessment to include recommendations for behavioural management, if any, and medication, if any AND IT IS NOTED neither party or the Independent Children’s Lawyer shall be at liberty or order any subpoena to the expert to provide documents or give evidence without further order of a Judge of this Court after consideration of all the issues affecting the welfare of the child.

1. If the assessment is not available by way of Public Health Funding, the assessment is to be undertaken with equal shared cost of the mother and the father.

1. Both parents and the Independent Children’s Lawyer are at liberty to provide such information and documents to the independent assessor as they are advised and it is requested that both parents are interviewed by the person carrying out the assessment in any event.

1. That pending further order of this Court by way of final hearing or unless otherwise ordered:

(a)   the child E live with the father;

(b)  The child E spend time with the mother during school term time every two weekends out of three from after school on Friday until 5.00 pm on Sunday to commence on Friday 4 April 2008 and to recommence after school holidays on Friday 2 May 2008;

(c)  during school holiday time the child E spend time with the mother for one half of the school holidays at times to be agreed and failing agreement between the parties from the first Saturday during the school holidays at 10.00 am to the second Saturday of the school holidays at 5.00 pm;

(d)  for the handover and collection of the child E which does not take place at school be the mother or her nominee will collect the child from the home of the father at the beginning of any period of spending time with the mother and the father or his nominee is to collect the child E from the mother’s home at the conclusion of time spent;

(e)  the mother and father have joint shared parental responsibility in relation to the child E and that this requires but is, not limited to, including any person involved in the education, medical assessment or treatment of the child to confer with, consult and provide the information to both of the parents on equal basis AND IT IS NOTED that both parents have joint shared parental responsibility and they are both entitled to receive information and/or documents concerning the child;

(f)   both parties are restrained and an injunction is granted restraining them from removing the child E from Australia or South Australia without the prior written consent of the other and pending trial of this matter must inform the Independent Children’s Lawyer of any such proposed move;

(g)  the mother is to have telephone communication with the child E each Monday and Wednesday at 5.30 pm on the basis that the mother telephone the child at that time and the father ensures the child is available to take that call;

(h)  It is recommended that the mother’s solicitors and the Independent Children’s Lawyer confer with input, if necessary from the father, about the mother attending for a drug and alcohol assessment.

1. Liberty is given to the father to issue a subpoena for relevant documents to Uniting Care Wesley on the basis that the subpoena can be made returnable before a Registrar in the normal course of events.

1. Otherwise the final applications are referred to the Docket Registrar.

1. This concludes the Application in a Case.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1883  of 1998

MR ALBERTON

Applicant

And

MRS ALBERTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I am proposing to make some further orders, but, just by way of brief remarks for this interim hearing, it is clear that this is a difficult matter concerning the ongoing welfare in relation to the parties’ child E, who was born in August 1994.  He is therefore 13 going on 14.

2. For a considerable part of the time he has resided in the primary care of his mother and spent regular time with his father.  Only recently, this year, has that changed and the matter has come before the Court again in relation to determination of interim issues.  The allegations made in relation to the need to change the child's past arrangements are set out in the more recent affidavit material filed by the father, most of which is, on the face of it, clearly denied by the mother in the affidavit material filed by her and on her behalf.

3. On the last occasion the matter came before me on 14 March.  I made certain orders in relation to interim orders and requested the assistance of various persons, including a Family Consultant employed by the Court, and Dr C, who previously carried out an assessment.  The Court is grateful for the prompt attention to those orders by Dr S and Dr C and now has before it the two brief reports of those experts.

4. In determining any matter on an interim basis, the Court is still required to follow the authorities decided by the Full Court, and in particular the decision of Goode v Goode (2006) FLC 93-286, guiding the Court in relation to the various matters set out in the Family Law Act provisions concerning children.

5. This is a matter in which it is clear that the shared parental responsibility has been the arrangements in place for a considerable period of time, notwithstanding the difficulties the parties have had in carrying out their parental responsibilities in a cooperative fashion. The Court is therefore required to consider those factors set out in Division 6 of Part VII of the Family Law Act concerning parenting orders. That, of course, requires the Court to consider whether the child should spend equal time or substantial and significant time with each party, taking into account when making those decisions (the best interests of the child being the paramount consideration) the factors set out in section 60CC.

6. The reports that I have from Dr C and Dr S are significant in providing an indication of the views expressed by the child and the factors concerning his maturity that the Court thinks relevant in determining the weight to be given to the child's views.  The reports also deal in an indirect way to a certain extent with the nature of the relationship of the child with each of the parents and the other significant factors under that heading.  In particular, the primary considerations for the Court are:  the benefit of the child having a meaningful relationship with both of the parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or violence.

7. In an interim matter such as this, it is not appropriate to seek to determine the truth of the factual matters alleged by both of the parties.  However, it is encouraging to see that both of the parties recognise the benefit to the child of having a meaningful relationship with the other parent, and both have a desire to protect the child from any physical or psychological harm.

8. I return to the reports of Dr S and Dr C.  It is clear that the child has expressed his views to both of them that he wishes to remain living with his father at the present time and seeing his mother regularly.  In relation to both reports, the child has repeated to those writing the reports, statements concerning the problems he has with his mother's drinking, and puts those problems as the forefront of his reasons for expressing his views at the present time.

9. Dr S, who saw the child on 19 March on his own, reports that:

   “[E] appeared to be genuine in his reports of his accounts of his mother's drinking and did not appear to be coached.”

   That is paragraph 16.

10. Paragraph  17, however, says:

    “[E] did not display signs of alienation from his mother, as may have been expected if he had been strongly influenced by his father against his mother.  He also expressed a love and concern for his mother and a desire to maintain a relationship with her and to spend regular time with her.  The fact that he wished to see her every weekend provides support for this.”

11. Similarly, the report of Dr C reports that:

    “Despite not demonstrating distress, [E] did present as genuine in his report, with him speaking openly and rapidly, using age‑appropriate terms, providing significant detail, but pausing to ask the writer not to record a comment he had made about his sister that he thought may portray her negatively, who he reported being close to.  Although it is possible that [E] has been influenced in some regards by his father, eg with respect to his views regarding his medication, it is also possible that his views have changed because he is no longer being influenced by his mother.”

12. Dr C concludes:

    “It is the writer's opinion that, on the basis of [E’s] report, he should continue to live with his father at this time, conditional on the father seeking guidance regarding the management of [E’s] reported attention deficit hyperactivity disorder, tic, and Asperger's disorder.”

13. As I have indicated, in relation to making a decision on an interim basis, it is not possible to make a determination of all of the factors.  It is also clear from the submissions made on behalf of the mother that at this time she is not opposing an order that the child E live with the father but is seeking that he spend time with her every weekend from the conclusion of school on Friday to 10 am on Sunday and that there be telephone communication twice a week.  She also seeks that the school holidays be shared.

14. The father is seeking an order that E live with him and spend time with the mother each alternate weekend, which was the arrangement which was in place before he did not return E to the care of the mother earlier this year.  He does that on the basis that every weekend would not give him an opportunity to enjoy what I would describe as activities which do not relate to school and homework and other disciplinary‑type activities, such as “tidying your room and going to bed on time”.  The Independent Children’s Lawyer also referred to the problems which might sometimes occur if a child has a relationship with the parent with whom he resides only during weekdays and not on the weekends.

15. Giving careful consideration to the reports, and in particular the need for both parents to maintain an appropriate relationship with E, I am of the view that, as proposed by the Independent Children’s Lawyer, two out of three weekends during school term time and half of the school holidays would be an appropriate arrangement pending the determination of the matter on a final basis.

16. In relation to the proposals concerning the shared parental responsibility, it is my view that shared parental responsibility needs to continue.  The parties need to find a way which will allow them to confer and consider matters which affect E’s long‑term interests, in particular the difficulty he is having in relation to his schooling and the dispute the parents have about his medical condition.

17. Having said that, however, it appears that in this particular case what would otherwise be a normal part of parenting arrangements with parties who have separated does not seem to have been possible for the father and mother in this case, but in my view it is a necessity so far as E’s welfare is concerned.  I therefore propose to make orders that make it clear to the parents, and to those parties with whom the parents deal, that it is necessary for each of the parties to be involved in, and consulted and informed about, matters concerning the child, and in particular in relation to his medical treatment and schooling.

18. The orders that I propose to make are those that I consider to be, on an interim basis, in the best interests of E, bearing in mind all of the considerations set out in section 60CC, placing an emphasis upon the material contained in the two short reports that I have received today. I have made the order in relation to the medical assessment.

19. I recommend that the mother's solicitors and the Independent Children’s Lawyer confer, with input from the father, about the mother attending for a drug and alcohol assessment.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date:  16 April 2008