ANDREWS & COLLINS

[2013] FamCA 264

FAMILY COURT OF AUSTRALIA

ANDREWS & COLLINS [2013] FamCA 264

FAMILY LAW – CHILDREN – Interim Consent Orders – Order that mother and father have equal shared parental responsibility for the children – Order that children live with the mother

FAMILY LAW – CHILDREN – Interim Orders by Determination - Order that children spend time with the father – Injunctive Orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Andrews

RESPONDENT: Ms Collins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 887 of 2011

DATE DELIVERED: 26 March 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 26 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trezise

SOLICITOR FOR THE APPLICANT: M+K Dobson Mitchell Allport

COUNSEL FOR THE RESPONDENT: Mr Geason

SOLICITOR FOR THE RESPONDENT: Butler McIntyre & Butler

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Beerman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

Orders

UNTIL FURTHER ORDER

1. BY CONSENT the mother and father have equal shared parental responsibility for the children J born … June 2004 and E born … February 2006 (“the children”).

2. BY CONSENT the children live with the mother.

3. J spend time with the father as follows:-

   (a)during school term, each alternate weekend from Friday after school or 3.00pm on a non-school day until Monday at the commencement of school or  3.00pm on a non-school day;

   (b)the whole of the school holiday period from Friday 5 July 2013 until Monday 14 July 2013 and one half of the following school holidays.

   (c)such other times as are agreed in writing between the parties; and

   (d)from after school Tuesday 26 March 2013 until 8.00pm Tuesday 26 March 2013.

4. E spend time with the father as follows:-

   (a)After the father and his partner Ms F attend upon Dr H for her to confirm E’s special needs then; each Sunday (when J is with the father) from 9.00am until 4.00pm;

   (b)After the father and Ms F attend upon Dr D for the purpose of him explaining E’s special needs to the father and Ms F; each alternate weekend from Friday after school or 3.00pm on a non-school day until Monday at the commencement of school or  3.00pm on a non-school day.  Such weekends to continue over school holidays and to harmonise with the weekends J spends with the father.

5. The parties are restrained from feeding E ‘off-diet’ food.

6. The parties will use their best endeavours to ensure that the recommendations for treatment and care for E are in accordance with the reasonable directions of her paedeatrician.

7. The parties be restrained from demeaning, belittling or abusing the other party in the presence or hearing of either of the children or allowing others to do so in the presence or hearing of the children.

8. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

9. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

10. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrews & Collins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 887 of 2011

Mr Andrews

Applicant

And

Ms Collins

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Collins and Mr Andrews relating to their children J, aged eight and who turns nine in June this year, and E, who is aged seven.  There is patently in Court enormous hostility between the parties, which has developed over, it seems, recent times.  Anything I say in these reasons ought not to be taken as criticism of one party or the other.  Each of them has struggled in terms of parenting, not because of any shortfall in their parenting capacities, but in the difficulties which the particular circumstances of these parties have presented to them.

2. The father is aged 45.The mother is aged 40.  The father has re-partnered with Ms F, who has a daughter S, who is aged eight.  The parties commenced cohabitation in 2000 and separated in about September 2011.  Their daughter E has significant health difficulties, which have been articulated in various affidavits and in reports from her general practitioner and from a paediatrician.  It is a life-threatening condition.  Although it is clear from the material that if properly treated she can live a full and complete life.

3. Her condition is such that it requires constant care and constant monitoring and I suspect this has been a burden and perhaps a pleasure that has fallen upon the mother for the whole of E’s life and might I add the father, although they have adopted different roles in their lives and the relationship has come to an end.  J is the elder of the two children and he has clearly from the evidence adopted a caring role for his sister and that’s probably not unexpected bearing in mind the nature of her illness and the needs and special requirements of E.

4. The parties have agreed that there ought to be an order that they have equal shared parental responsibility and in the circumstances of this matter that is entirely appropriate.  The parties agree that the children should live primarily with the mother.  Until the end of 2012 and the beginning of 2013, both children were spending each alternate weekend with the father, culminating in a period of about 11 days when the children were returned and the mother asserts a number of things.  Firstly, that E wasn’t properly cared for whilst with the father and she relies upon some statements made by J to that end and secondly that J expressed a desire not to see his father.

5. J has been receiving counselling and I have before me some of the counselling reports.  Since earlier this year, J and E have not spent any meaningful time with their father arising from the events at the end of last year and the conflict and lack of communication between these parents and the polarisation of their positions.  The father understandably seeks to have the arrangements that were in place restored.  His present partner is a trained healthcare worker and he says she has the capacity to provide easily for J and appropriately for E.

6. The mother annexed to her affidavit a number of reports.  One from the principal of B School in relation to J, which says that he has settled into school, he is happy and appears to be enjoying school.  There was also a report from Ms C in relation to piano and guitar lessons; however, I am not sure what weight I can attach to that report.  It seems driven to some extent by information provided by the mother.  The third report is of Dr D.  This report is dated 13 February 2013 and it was unfortunate that this report was not made available to the father earlier, as Dr D has now gone on leave and will be away for some six weeks.

7. Dr D sets out the nature of E’s conditions and concerns he has about what he describes as “off-diet food”.  He suggests that the father and his partner ought to see him and he can explain the importance of these matters.  To the father’s credit and that of his partner, they are both willing to do so, but obviously because of the combination of events that cannot occur until he returns and until they are able to make an appointment to see him.  I accept the statement from the mother from the body of the Court that any issues regarding E would be treated as a matter of urgency by Dr D, but I am not sure that visiting a parent would bring about the same sense of urgency.

8. Much of the information from Dr D of course would come from the mother, who has expressed her views in her own subjective way.  I am not critical of her for that, but it is in her way and it will be a matter for others to determine the accuracy or the colour of those comments.  It is clear from Dr D’s report that this child needs close and significant care.  There are two reports from Dr H.  One in relation to J and the other in relation to E.

9. In relation to J, Dr H suggested that the access visits cease and be reviewed at a later date.  That view of Dr H was challenged by the Family Consultant in cross-examination when she expressed a view that it would be better for the issue to be addressed by the parents, the underlying concerns dealt with and the child to resume time with his father.  The fact is that J will resume time with his father.  It’s a question about how that occurs and in what circumstances.

10. Dr H reiterates the severity of E’s illness in her report and also opines that it would not be in E’s interests for time to continue, having regard to this report being prepared in January 2013.  A report was also prepared by Ms G, who has met with J in a therapeutic capacity, although most of the meetings appear to have been with Ms K.  Ms G expressed a concern that J might be experiencing difficulties adjusting to his new parenting arrangements, particularly evident on the report from his mother after the last visit.

11. The father relies upon two affidavits.  The first dated 12 March 2013 where he sets out his background, his present circumstances and his desire to take J to Western Australia on 28 March to 7 April.  He sets out his personal circumstances, where he lives at the moment, his relationship and care arrangements since separation.  It appears that there is not that much difference between the parents in relation to the care arrangements in terms of the general description.  There is certainly a difference as to the father’s views as to his care of both the children and the mother’s view as to the father’s care of the children.

12. The mother’s view are based upon what J has told her from time to time and her own observations of the reactions of the children when they came back from spending time with their father.  In his second affidavit, the father addresses a number of aspects in relation to his evidence and in relation to the background of which I have had regard.  When the matter first came before me, I was concerned clearly by the nature of the conflict and the needs of the children.  I directed the appointment of an independent children’s lawyer, who conceded he has not spoken to the children at this stage, but has read the material.  He supports the orders which the father seeks.

13. A report was prepared by a family consultant, Ms M, of this Court dated 19 March 2013, which report was read into evidence.  At the request of counsel for the mother, Ms M was cross-examined by each of the parties, but particularly by counsel for the mother.  Her evidence was not impeached and she made appropriate concessions from time to time.  It is clear that J has expressed at all times to her, his view that he did not wish to travel to Western Australia with the father.  She describes him as an eight and a half year old child of typical development but perhaps not confidence.  He complained that Ms F and her daughter were mean to him and gave some examples in that circumstance.  She said, however, the father seemed able to accept this and was insightful in relation to it. 

14. J complained that he felt his father did not protect him and that he was upset with some parts of the visit but not the entire visit.  The Family Consultant said she didn’t get the impression that he was angry with his father and he showed no fear of his father.  Ms M raised with the child, singly and with each of the parents, the possibility that he could go on this trip.  Ms M said that the mother’s reaction was more negative than that of the child. 

15. My task, as is set out in Goode & Goode[1], on an interim basis is clear and I don’t intend to set out the processes entirely and I hope that I will deal with them.  I am conscious of the provisions of section 60B of the Act which provide that the objects of the legislation is to ensure that the best interests of the children are met by ensuring they have the benefit of both their parents having meaningful involvement in their lives.  This needs to be consistent with the best interests of each of the children and to protect the children from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.  In addition the Court needs to ensure that the children receive proper parenting and ensure that the parents fulfil their duties and meet their responsibility concerning the care, welfare and development of the children. 

    [1] [2006] FamCA 1346.

16. My task is to put in place orders that meet the best interests of the children and each of these two children are substantially different and I think I have to treat them in a different way, acknowledging a number of things.  Firstly, that the mother is quite conscious that she wants the children to see the father together rather than separately and secondly, which I should have related to earlier, was her concerns about her views of J’s reaction when she read parts of the report to him.  There is no doubt that in this case there is a benefit in each of these children having a meaningful relationship with both of their parents. 

17. Both parties agree that that is an appropriate course.  It’s not in issue.  There is no risk of the children being exposed to violence or abuse in the care of the other.  The issue which the mother raises in relation to E, which may or not be sustained, is whether E is at risk because of what she (the mother) perceives as a laissez-faire approach by the father when she is in his care, which I hasten to add, that the father denies that he has ever adopted that form of approach and how they deal with J’s concerns, or perceived concerns, about the father’s relationship with Ms F which has been in place for some 12 months.  I have to consider the views of the child.  Not so much E, because of her younger age, but particularly J.  He has expressed a view that he does not wish to go on a trip with his father, however, I have to consider that in the light of the evidence of the Family Consultant and the circumstance in which he has found himself in the last few months in not seeing his father.  I have considered and will give those views some weight but I have to do that in the concert of all the other aspects of it. 

18. In terms of the relationship of the children with each of their parents, the mother is the primary parent of both these children.  There is no doubt about that.  They are primarily attached to her.  The father has a significant relationship with both the children.  As is often the case in this Court, we see in this Court that when relationships fail parents sometimes identify their views of the other party with the children’s views of the other party.  I am not sure if that hasn’t happened to some extent in this case. 

19. It is not clear, and will no doubt be clear at a later time, of the nature of the relationship between the children and Ms F.  From the affidavits of the father, he says it is a good relationship.  From J’s view, there are some problems with the relationship which need to be addressed.

20. Each of these parents is here because they care about their children.  They wouldn’t otherwise have spent the time, emotional energy and money in coming here if they didn’t deeply care about the needs of their children.  They have both, to the best of their ability, endeavoured to fulfil their obligations to care for and maintain these children.  It is the likely effect of any changes in the children’s circumstances with which the whole crux of this argument falls.  In terms of J, the mother says, well look, he was unhappy, there has been a break, and there should be a build-up so that he can re-form or resume a good relationship with his father.  That’s the thrust of her argument.  The father says, well, I’ve tried.  Nothing has happened for quite some time. 

21. The father says I’ve organised this holiday and he is, to some extent, supported in this view by the Family Consultant who says, well, it’s got to be forced through at some stage or another and this may be the way to go.  I have been struggling with that as I have heard the evidence and I can tell both parties that I have been struggling with that.  In terms of E, interestingly, it’s probably easier because there will be a build-up of time with E.  I indicated to the parties and no one argued strongly, that the father and Ms F should see E’s general practitioner as soon as possible.  There should be at least all day Sunday, on a weekly or fortnightly basis, until the paediatrician returns and then, in my view, it should return to where it was before.  That seems to me to be child focused, child centred and absolutely safe, and that’s what I intend to do with E.

22. In terms of J, I am not sure.  Normally, I can say that I wouldn’t have pressed the holiday issue and I thought Mr Geason was pushing up a very steep hill with a very heavy rock but the evidence of the Family Consultant was quite strong, notwithstanding the views of the child.  There are practical difficulties if this trip to Western Australia goes wrong and there are significant other difficulties if it goes wrong, in terms of the ongoing relationship between the father and J. 

23. There is no doubt as to the mother’s capacity to parent each of the children, although I suspect as a consequence of these proceedings there may be a doubt as to the mother’s willingness to promote the relationship between the children and the father.  Each of the parents has shown a strong attitude to the children and the responsibility of parenthood is demonstrated by each of the parents.

24. There are no issues of family violence.  Whatever order I make in this case is troublesome.  If I leave J not to spend time with his father for another two or three weeks, there will be further issues arise. 

25. My task is to take a conservative approach and whilst I have great sympathy for the father in relation to this, I am concerned that if I send this child and he has a reaction such as that described by the mother, if it is true, it could be devastating for him.  I intend to put in place alternate weekends for the child immediately upon the father’s return. I intend to order that the child spend the whole of the next school holiday period with the father so that he can make arrangements for that time.  My task, for the benefit of the father, is to put in place what I think is conservative and safe for the child.  I apologise for your holiday but my task is to try and look at the issues from the child’s perspective and this is not a final hearing, it will go back before the Federal Magistrate who will hear it later.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 March 2013.

Associate:     

Date:              26 March 2013