Artur and Mercasa

[2008] FamCA 376

FAMILY COURT OF AUSTRALIA

ARTUR & MERCASA [2008] FamCA 376

FAMILY LAW  -  CHILDREN – parenting – Magellan – interim orders

Family Law Act 1975 (Cth)

HUSBAND: Mr Artur

WIFE: Ms Mercasa

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 13531 of 2007

DATE DELIVERED: 18 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: 18 April, 2008

JUDGMENT OF: Brown J

HEARING DATE: 18 April, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms E.A. Benjamin

SOLICITOR FOR THE HUSBAND: Gadens Lawyers

COUNSEL FOR THE WIFE: Mr. Piekarski

SOLICITOR FOR THE WIFE: Hartleys Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms M. Vohra

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. That all previous parenting orders in respect of the children E born … December, 2001 and S born … October, 2003 (“the children”) be discharged. 

1. That until further order the husband and wife have equal shared parental responsibility for the children. 

IT IS FURTHER ORDERED

1. That until further order, the children live with the husband as follows:

   (a)from 9:00 am. on Saturday 18 April, 2008 until 6:00 pm. on Sunday 19 April, 2008;

   (b)from 8:30 am. until 7:00 pm. on Wednesday 23 April, 2008, and each Wednesday thereafter;

   (c)from 9:00 am. on Saturday 26 April, 2008 until 6:00 pm. on Sunday 27 April, 2008;

   (d)from 8:30 am. on Friday 2 May, 2008 until 6:00 pm. on Sunday 4 May, 2008;

   (e)from 8:30 am. on Friday 16 May, 2008 until 8:30 am. on Monday 19 May, 2008, and each alternate week thereafter;  and

   (f)at such further or other times as may be agreed between the parties.

IT IS FURTHER ORDERED BY CONSENT

1. That until further order the children live with the wife at all other times.

1. That until further order the husband communicate with the children when not in his care as follows :

   (a)each Tuesday and Thursday evening, from 4:00 pm. to 4:30 pm; 

   (b)on any other weeknight that the children may elect to telephone the husband;  and

   (c)for the purpose of telephone communication the wife will ensure that the children are available during the prescribed telephone periods when the husband shall telephone them. 

1. That until further order, the wife communicate with the children when not in her care as follows :

   (a)each Tuesday and Thursday evening, from 4:00 pm. to 4:30 pm;

   (b)on any weeknight that the children may elect to telephone the wife;  and

   (c)for the purpose of telephone communication the husband will ensure that the children are available during the prescribed telephone periods when the wife shall telephone them.

1. That until further order each party additionally permit the children to telephone the parent with whom they are not living at such times as they may reasonably request.

1. That at the commencement of the husband’s time with the children, changeovers shall occur at E’s school and the conclusion of such time, at the wife’s house. 

1. That where changeovers do not take place at E’s school as provided for in paragraph (3)(a) and (c) above, all changeovers occur at the wife’s house.

1. That both parties keep the other informed of their current residential address and telephone number (including mobile number) contact details, and notify the other in the event of any change of these details within 24 hours of such change. 

1. That the wife by herself, her servants and agents, be and is hereby restrained from :

   (a)discussing these proceedings or any other court proceedings with the children or either of them or in the presence of either of them;

   (b)allowing any other person to discuss with the children or either of them these proceedings and discussing these proceedings within their hearing or presence;

   (c)denigrating the husband to the children or either or them in any manner whatsoever;

   (d)taking the children or either of them to any medical practitioner, psychologist, social worker, counsellor or family therapist without order of this Honourable court or the prior approval of the independent children’s lawyer, save the wife telephone the husband the independent children’s lawyer in the event the children or either of them require urgent medical treatment;

   (e)removing or transferring E’s enrolment from the S Primary School;

   (f)removing the residence of the children or either of them from the D area;

   (g)harassing the husband at contact changeovers;

   (h)taking or involving the children or either of them to any counselling, therapy or service with respect to any allegations of sexual abuse including the Gatehouse Centre, save by written agreement with the husband and the independent children’s lawyer or by written direction of the Department of Human Services;  and

   (i)allowing any other person to engage in conduct prohibited by this order. 

1. That the husband by himself, his servants and agents be and is hereby restrained from :

   (a)discussing these proceedings with the children or either of them;

   (b)denigrating the wife in the present of the children or either of them;  and

   (c)allowing any other person to engage in conduct prohibited by this order, with denial as to the necessity of these orders.

1. That the wife be restrained from renewing the passports of the children upon the expiry or them or obtaining any additional passports in their names. 

1. That whilst denying the necessity for this order, both parties be and are hereby restrained from :

   (a)harassing or intimidating the other;

   (b)contacting the other without leave of the court save to comply with any parenting orders;  and

   (c)attending at the other’s residence save in order to comply with any court order in respect of changeover or parenting issues.

1. That both parties be permitted to attend all such school activities including parent/teacher interviews, concerts, working bees, at which parents normally attend and in the event the other parent is unaware of such activity, they shall inform the other of same. 

1. That a communication book be established and exchanged with the children’s changeovers on each occasion, and either party shall note in the said communication book relevant matters pertaining to the children and their care. 

1. That paragraphs (22) and (23) of orders made 15 January, 2008 remain in full force and effect. 

1. That the children attend counselling with respect to the affect of the separation of their parents upon them and the counsellor be nominated by the independent children’s lawyer at the parties’ equal expense and the independent children’s lawyer be authorized to provide Dr. A’s report to the nominated counsellor. 

1. That there be liberty to apply, within 24 hours with respect to these orders.

1. That the husband file and serve a form 1B reply and a form 13 financial statement within 21 days hereof.

1. That the wife file and serve a form 13 financial statement within 21 days hereof. 

1. That the parties and lawyers on the record attend on 2 June, 2008 at 2:15 pm. for a conciliation conference, and attend a trial notice listing on a time to be advised on that day. 

1. That each party deliver to each other party and lodge with the court at least seven days before the conciliation conference, a conciliation conference document.

1. That each party exchange at least fourteen days before the conciliation conference a market appraisal or opinion as to the value of any asset in dispute. 

1. That each party exchange at least fourteen days before the conciliation conference the following documents, if relevant and not already exchanged :

   (a)the party’s three most recent taxation returns and assessments;

   (b)any superannuation documents for each superannuation interest of the party including :

   (i)the completed Superannuation Information form;

   (ii)for a self-managed superannuation fund, the trust deed and the last three financial statements;

(c)for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 :

(i)financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the last three financial years;

(d)for the party or a corporation (Business), trust or partnership where the party has a duty of disclosure under Rule 13.4 :

(i)any Business Activity Statements for the twelve months ending immediately before the first court date;

(e)for any corporation, its most recent annual return, listing directors and shareholders, and the corporation’s constitution;

(f)for any trust, the trust deed;

(g)for any partnership, the partnership agreement;

(h)a market appraisal of any item of property in which a party has an interest;  and

(i)all documents containing evidence about :

(i)the financial matters mentioned in the party’s financial statement (form 13) and the conciliation conference document completed by the party for the conference;

(ii)financial contributions made at the commencement of cohabitation;

(iii)any inheritances, gifts or compensation payment received during cohabitation;

(iv)any purchase or disposal of property in the twelve months prior to and since separation; 

(v)any increase or reduction of liabilities since separation;  and

(vi)the value of any superannuation interest of a party, including the basis on which the value has been calculated, any documents used to calculate the value.

1. That pursuant to s.62B and s.65DA(2), 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13531 of 2007

MR ARTUR

Applicant

And

MS MERCASA

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced when the husband filed an application on 14 December last year seeking orders for residence of the parties’ two children.  E is six, S is four.  In response, the wife sought orders that the girls live with her, that the husband’s time with them be reserved, interim spousal maintenance and property orders.

2. The husband is 49, the wife is 34.  They lived together from the time they married in March 2001 until their separation in November 2007.  The wife filed a form 4 on 15 January, 2008, alleging digital anal penetration by the father of E.  An amended form 4, filed on 22 January, alleged sexualised behaviours in S and that the husband tweaked her nipples.  The evidence suggests that police investigated the allegations but closed their file. 

3. On 29 January the father filed a form 4 alleging psychological abuse of the children by the mother, her alienation of them from him and what one might call systemic abuse, being an allegation of taking the children to numerous doctors in a committed attempt to substantiate what he says are false allegations of sexual abuse.  The Department of Human Services has investigated the notifications.  Gatehouse has been involved, as has Dr L. 

4. I do not propose to ventilate here the range of allegations.  The conclusion of Dr L was that the father’s application of cream to E’s anogenital area may have been overzealous and, he added, probably unnecessary. 

5. A report of the Department of Human Services is dated 29 February.  Workers have had some contact with the children’s school and kindergarten teachers;  in their view, both girls had a good relationship with both parents.  DHS does not substantiate any of the allegations.  DHS’s concern, not unusual in a matter like this, is the climate in which the children live, in that they are being exposed to competing allegations of each of their parents, in an escalating climate of hostility and anger.  Such an environment is very damaging for children. 

6. A number of orders have been made.  Counsel referred me to a number of earlier hearings before Senior Registrar FitzGibbon.  The case has been before the court on 14 December 2007, 15 January, 23 January (when leave was granted to issue subpoenas) 30 January and 7 February, 2008.  The parties have today sought that I determine a relatively discrete interim issue and send the balance of the applications for a longer interim hearing before Senior Registrar FitzGibbon.

7. The court cannot live the parties' lives for them.  These frequent hearings are unlikely to foster the best interests of the children.  Listening to the submissions today, one gains a sense of tit-for-tat parental contentions, and of the independent children's lawyer walking a line between them.  The court must proceed on the basis that the father seeks final orders for the residence of these children as does the mother.  Neither party is proposing a shared residence regime. 

8. Orders were made for psychiatric assessments of the parties and the preparation of a family report.  A decision was made to have Dr A undertake both.  I have read Dr. A’s lengthy report.  It appears from the report that the wife was equivocal with Dr. A about the allegations that she made; she was equivocal about whether there was actually any sexualised content to the behaviour alleged.  The high level of mistrust and anger between the parties is clear in the report.

9. Dr A saw nothing which, to him, suggested that the father's time with the children needed to be supervised or that they were at significant risk of abuse “while they are in his care”.  As he said, if new or additional information becomes available, that opinion may need to be revised.  He remarks, as would any professional in his position, that it is simply not possible to definitively prove or disprove allegations of sexual abuse in an assessment of the type he was asked to undertake.  In his opinion, if the court accepts there is no evidence that the children are at significant risk of being abused by their father, there is no reason for their time with him to be supervised. 

10. When he turned his mind to the most appropriate living arrangements, Dr A recommended that consideration be given to a shared parenting arrangement, "although that may need to be introduced in stages, as the girls have lived with their mother for several months and have not stayed overnight with their father since separation". 

11. In due course, one would want to tease out with Dr A why that was his starting point.  That is, did he propose a shared residence arrangement because he believed it to be the legislative imperative or whether he thought that the best interests of the children would best be served, in all the circumstances of this case, by moving between two homes, and thus two parents who are in conflict.  The recent research of Jennifer Macintosh and Caroline Long records the significantly‑heightened levels of anxiety in children who moved between two homes when an alliance between the parents was absent and considerable levels of interparental conflict remained.  That is a matter for the trial. 

12. In my judgment it would be premature for the court to determine now whether the presumption of equal shared parental responsibility should apply.  The court needs to be mindful of the fact that neither of the parents, at this time, is advocating for shared residence.

13. Dr A said (on page 24 of his report) that, if the court is of the view that shared parenting is the appropriate goal, there be a fairly rapid increase in the girls’ time with the father, such as overnight on successive weekends, increasing to Friday to Monday on alternate weekends for two weekends, and progressing to shared parenting, with “details of the arrangements preferably by mutual agreement”.  Unless Dr A has a magic wand, the court must wonder about the viability of that last recommendation. 

14. In my view, it would be premature to act on the basis that the court should implement a recommendation in these terms.  That is a matter for final trial.  The court can be comfortable, based on Dr A’s report, and on the orders that each of the parties seek to be made today, that the children have an excellent relationship with their parents and they need to spend frequent and regular time with their father. 

15. Whether the children move to live with him, and the time they would spend with their mother, is a matter for trial.  Whether they stay living with their mother, and the time they would spend with their father, is a matter for trial.  In my judgment, these frequent hearings are not helping the parents to focus on the children's best interests; they encourage argument and allegations and do little to move the case forward. 

16. The wife's position in relation to the sex abuse allegation, and to the other allegations she made about the father's parenting, is difficult to understand.  Pressed by me, her counsel has said the wife does believe there is a substantial risk of sexual abuse, and that is consistent with her most recent affidavit, to which Ms Benjamin has referred.  Nevertheless, it is put by her counsel that she accepts the recommendation for the husband to spend substantial unsupervised time with the children and joined seeking orders that would, until a hearing before the senior registrar, have had the children spending time overnight with their father. 

17. As Ms Vohra said, consent by a party to children spending unsupervised overnight time with the other parent would normally be enough to take a matter out of the Magellan list.  I am concerned if this matter leaves this list that there will be dozens of interim hearings, as the case sits in the pool awaiting a hearing.  For that reason, I am not taking it out of this list at this time.  It will be moved forward to a trial.  Given that a family report is available, a trial later this year is likely.  If the case leaves this list it is improbable that would occur.    

18. I will order that the parties attend a trial notice listing and a conciliation conference on 2 June 2008 at 2.15 pm.  At the end of the conciliation conference the registrar will sort out what is to happen with the property and financial aspects of the case, if they have not resolved.  She will then give trial directions for the parenting applications. 

19. The court needs to consider the time that the father is to spend with the children until the conciliation conference and, if the case does not resolve, trial.

20. Each of the parties has to understand that interim orders are no indicia of final orders.  Neither should proceed on the basis that, because a child stays living with one parent until a trial, the child will remain living with that parent after trial.  Or that because a child spends particular periods of time with a parent pending trial, that is the time they will spend with that parent after the trial.  We have trials so all the evidence can be tested, including the expert evidence, and an informed final decision made. 

21. In my view, the orders that should operate until the trial are those set out in paragraphs (a), (b), (c) and (d) of the proposed orders.  That is, initially one overnight period on two specified weekends and some time on Wednesdays.  There will then be an increase to two nights, from the weekend which commences on Friday, 2 May 2008.  Those periods will conclude at 6 pm on Sunday.  There will continue to be time on each Wednesday.

1. From 16 May, and fortnightly thereafter, there will be time from 8.30 am on Friday until 8.30 am on Monday.  That will continue until trial, when each of the parents' final proposals will be considered, and determined. 

2. What is important for the children is routine:  They need stability, security and consistency.  They need regular contact with their father.  They must stop being implicated in their parents’ dispute. 

3. Given the concession that some unsupervised overnight contact is appropriate, the court can be comfortable in finding that orders in the terms proposed are in the best interests of the children.  The other orders sought by the parties will be made by consent.

I certify that the preceding
24 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2008.

…………………………………………
Associate