Barton and Barton

[2014] FamCA 1192

FAMILY COURT OF AUSTRALIA

BARTON & BARTON [2014] FamCA 1192

FAMILY LAW – CHILDREN – Interim parenting – Where the mother, father and Independent Children’s Lawyer each seek to vary the parenting orders – Where the mother foreshadowed a challenge to the single expert – Where the court is not persuaded on an interim basis that the parenting orders should be varied.

APPLICANT: Mr Barton

RESPONDENT: Ms Barton

INDEPENDENT CHILDREN’S LAWYER: Ms Power

FILE NUMBER: SYC 3379 of 2007

DATE DELIVERED: 5 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 5 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wright of Craddock Murray Neumann

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The oral application made on behalf of the mother to adjourn today’s hearing is rejected.

2. Not later than 16 February 2014 the solicitor for the mother notify the Independent Children’s Lawyer and the solicitor for the father of any intention to apply to discharge Dr A.

3. Leave is granted to the mother to restore the proceedings to the list in respect of that issue upon filing an Application in a Case and affidavit in support.

4. Any application to be made on behalf of the mother for the costs thrown away in relation to a particular date be filed and served together with any supporting affidavit evidence by 12 December 2014.

5. Any response and affidavit in support be filed and served on behalf of the solicitor for the father by 20 February 2015.

6. Any such costs application be listed for hearing on a date to be settled between the Associate to Justice Loughnan and the legal representatives of the parties, if practicable, a return date of some other aspect of these proceedings.

7. Orders made by this Court on 20 November 2013 are varied to provide that when the child lives with the father for the first period of a school holiday the first weekend immediately following the resumption of school term will be the first of the father’s alternate weekends with the child.

8. The Court notes that the parties have agreed that in the event that the father’s wife is not available to facilitate non-school handover of the child between households the father may facilitate that handover.

9. The parties’ Applications for interim variation of parenting orders are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barton & Barton 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 SYDNEY

FILE NUMBER: SYC 3379 of 2007

Mr Barton

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, B, who was born in 2004. 

2. The father and mother are 45 and 42 years of age, respectively.  They have each re-partnered although the mother does not live with her partner, Mr C.  The parents started to live together in 2000, were married in 2003 and separated in December of 2006.  They met in Country D and the mother returned to Australia while the father remained in Country D.  Ultimately, orders were made in 2008 in contested proceedings whereby the child would live with the mother in Australia and spend time with the father for short periods when he came to Australia.

3. The father was and perhaps still is in the defence forces.  He arranged a placement with the Australian defence forces for two years from July 2013 with some provision for an extension thereafter time.  Orders were made in October 2013 providing for the father’s time to be on alternate weekends, from 5.30 pm Friday to 5.00 pm Sunday.  Those times were increased in November 2013 to 5.30 pm Friday to Monday morning, before school, on alternate weekends; alternate Wednesdays overnight to the commencement of school Thursday; and some holiday time.  Now, those orders were in part, agreed and in part, imposed by a registrar. 

4. These are proceedings to vary the parenting orders.  The matter came before me in August for the commencement of the process of preparing the matter for a final hearing.  Importantly, there were issues between the parties about overseas travel that were resolved by agreement, although something happened before the travel could happen.  Dr A, a clinical psychologist, was appointed single expert in the proceedings and orders were made for her to qualify herself to express certain opinions in a report.  On that same occasion, property proceedings between the parties were determined by consent orders.

5. Some interlocutory matters remained unresolved from the August hearing.  The matter came back before me on 25 September 2014 in respect of some problems, I think to do with travel arrangements and some further orders were made.  I do not think there was much controversy, about those orders.  There was an issue in relation to the child’s health preventing the travel.  The matter next came before me on 3 November 2014 and further interim parenting issues were flagged and the matter was adjourned to this date.

6. The parents are both represented.  The father was not present in person.  When the matter was first mentioned this morning notice was given that a costs application would be made against the solicitor for the father.  That issue has been adjourned and orders made dealing with that matter.  There was an appearance from the relevant insurer and an address for service will be filed in that regard.

7. The mother and father each seek some changes to the existing orders.  the child is represented and her representative also seeks some changes to the orders.

8. The Court was told that there may be a challenge to the single expert.  That is important because the almost exclusive pattern in parenting proceedings in this Court has been that the expert evidence is provided by a single expert rather than having adversarial experts.  If the appointment of a single expert is revoked at a final hearing then there would be no expert evidence on the main issues before the Court.  A timetable has been set for the mother to make an election as to whether she wishes to challenge the expert or just some aspects of the expert’s report, which would be addressed in cross-examination.

9. Fixing of trial dates for the parenting proceedings needs to wait for the availability of dates in the judicial calendar, for a timely expert report, and for the evidence of the lay witnesses.  Obtaining the evidence of lay witnesses won’t be complicated and their evidence would normally be ordered when the hearing dates are fixed.  However, if the expert is unseated, then the parties and, more importantly, the child will be put to another round of interviews and some delay, in securing alternate expert evidence and there is the potential for that issue to hold things up. 

10. The matter is otherwise ready for a final hearing, and as soon as those matters are resolved, then arrangements can be made to allocate hearing dates for the matter.  There has been some suggestion that the hearing might require three days, or something of that order, depending on how many lay witnesses there are. 

11. Coming back to what is before the Court today, I suppose broadly from the point of view of the father and the Independent Children’s Lawyer (“ICL”), there are matters flagged by the report writer as being matters that need to be attended to.  The father and the ICL have sought orders to address those recommendations. 

12. As I indicated this morning in a different context, there is no automatic right to interim orders.  In the parenting sphere, as in other spheres, there is a level of danger about interlocutory proceedings for the very reason that has been identified today - the Court cannot get to the bottom of anything.  There are restrictions placed on the Court making findings of fact on disputed issues of fact in interim proceedings, really limiting that to independent evidence that excludes one version of events or wholly supports another.  There is not much of that sort of independent evidence before the Court at this stage.  Where there are allegations, they will fall to be tested by way of the evidence of the lay witnesses.  The report writer has identified those things, and by her conversations with the parties has identified where issue is joined. 

13. The mother has alleged that the child sleeps in the same bed as the father; that the father is naked in the presence of the child; he has not managed the hygiene of the child well; he has provided a poor diet; he has sexually abused the child; the child has behaved in a distressed behaviour, wetting her pants, biting her nails till blood flows; the mother has been the subject of verbal abuse and physical intimidation by the father; the father has been financially neglectful of the child; and the father has failed to take opportunities to spend any time with the child at periods or to contact her.

14. The father addressed some of those things when taken to them by the report writer.  There was one occasion when he was in a position whereby the child and he slept in the same bed.  On one occasion at a public pool, he and the child showered in the same shower, albeit one after the other.  He categorically denies the allegation of intimidation, categorically denies that he has sexually abused the child, and so on.  There are some substantial issues. 

15. I am not quite sure what of those issues will be pressed in the final hearing.  For example, the mother told the report writer (page 18) that she was doing everything she could to support the relationship between the father and the child.  Obviously she would not do that if she thought the child was being sexually abused by the father.  It may be that some aspects of her concerns are historical or the mother is unsure about them.  I suppose all of that adds to the point that was made earlier today by counsel for the mother, that there are risks associated with leaping in on an interim basis, where the report writer, just as the Court would be today, is left to rely on often the uncorroborated representations of the parties. 

16. Much is made of parties’ recollection and credit in court proceedings, but the human mind is not like a computer.  It can be, and it’s not uncommon, that recollections are not entirely accurate.  They can be affected by the surrounding circumstances.  They can be affected by the way in which they are accessed and recited, repeated and so on.  The parties made quite sensible proposals about the current arrangements.  However, in the spirit of these proceedings, they are often diametrically opposed.  For example, quite sensible suggestions have been made in the form of the orders sought on behalf of the father and the ICL in relation to mobile phone use.  It is almost humorous, that the parties make the same nature of allegation against each the other, in relation to the child’s use of mobile phones.  They are concerned about the demands made on her, the lack of privacy she is given, the times that contact is made.  It is a bit like a Shakespearean farce. 

17. If a Court intervenes at all on an interim basis, that is usually done because something has to be done.  There are things, categories of things that can, unambiguously, add to the embarrassment or potential embarrassment for a child, or can add to conflict between the parents.  

18. One of those things has been raised by the ICL in terms of the sequence of events and, again, even almost a caricature of the parties’ problems.  Their advocates each put the opposite position as the obvious answer to a presenting problem - the problem of when the cycle of living arrangements recommences under the orders made by the Registrar.  And there are only so many ways you can address that issue.  The school term orders can march on as if the holidays did not occur or they can start again at the end of each school holiday.  It is not rocket science.  And the ICL has proposed that the clock start again at the end of each holiday, geared to the parent who has the child living with them in the first half of the immediately preceding holidays.  That seems like a sensible arrangement.  No harm can come from that.

19. Otherwise, as counsel for the mother identified, none of the issues that are flagged by the parties that have been addressed by the report writer are so pressing, where a solution will clearly give a better outcome for this young lady, as to make it worthwhile venturing into the regime that has been put in place and tampered with now on several occasions.  You cannot manage anyone’s life by Court order.  We are taught at law school that you cannot have specific performance of a personal contract because you cannot require people to cooperate closely and be sensible with each other, indefinitely.

20. Family law tries to break that rule but, what we hope is that, after separation and sometimes, after the awfulness of Court proceedings, some level of common sense returns and the parties are able to take up a new role of cooperative parenting.  And in 99 per cent of cases that is exactly what happens.  If it does not happen, we do not have a solution for it.  The Court cannot be in a position of identifying mobile phone plans for children, dealing with any of the minutiae that it pleases parents to fight about.  If the parents establish that they truly cannot cooperate so that there is an easy transition available to a child, then we are left with more drastic options.

21. While Dr A might be proved to be entirely wrong about her recommendations and her observations, she does not have an axe to grind in the proceedings.  There is also the possibility that she is right.  Dr A was told that it was possible that the child heard denigration of her father in the mother’s household.  She was told that it was likely the child was shown a text message in the father’s household that she should not really have seen.  Her observations in relation to the interviews suggest a child behaving differently when under the gaze of one parent and not feeling free to react naturally to the other parent.  Just think about that for a moment.  This 10-year old girl has to pretend a different reaction to a parent because she is anxious about the other parent’s reaction.  She comes out of this quite well, this little girl.  The test will be whether her parents can their daughter. 

22. I think there is some sense in just confirming an arrangement to restart the clock at the end of each school holidays and making no other changes.  I am not going to fiddle with the orders otherwise.  I can see the sense in the proposals in relation to mobile phones and that communications be by SMS rather than email.  A tracking software or a particular software in relation to email communication is likely now to cause some embarrassment to the child because of instructions received by the father’s solicitor, apparently, on advice. 

23. And it may be that it is sensible that the parties move to using SMS.  It makes the messages harder to retrieve but it is possible to do so.  Sadly we see evidence of reams of copies of SMS messages.  That is something the parties might like to think about.  The mother’s concern relates particularly to this upcoming Christmas.  The Registrar put in place an arrangement whereby the Christmas period was just split with the father having the first part.  The mother’s complaint about that is, I think, she felt that perhaps the Registrar missed that issue or did not deal with it.  There is no objective support for that proposition.  In any event the mother considers that it is unfair or inappropriate that the child not have the opportunity to spend Christmas Day or the days around that with her mother, as she has done all her life.

24. A theme in the proceedings is the mother’s particular religious background.  It is the background in which the child is being educated through her school.  The mother’s parents and other family members are gathering together around Christmas Day.  For his part, the father has taken the opportunity that arises under the orders and made arrangements for this Christmas.  I am not going to interfere with the Registrar’s orders.  As I said, during the course of submissions, all over Christendom it pleases families to arrange for Christmas to be held in a household the weekend after Christmas or the weekend before.

25. Left to my own devices, I would prefer not to order a child travel between households on Christmas Day.  The point of the parents having a child to put under a Christmas tree at the cost of a child spending an hour or an hour and a half on Christmas Day in a car going between the households, in my view, is more about the parents than it is about a child.  Here the parties are spared my view because I agree with the proposition put by the mother’s counsel.  There should be no fiddling with the orders on an interim basis.

26. There is an issue coming and, that is that the father’s partner is about to give birth to a child.  In a perfect world, Mr Johnston said something about “pigs flying”, in a perfect world – we would expect of parents to be comfortable enough and not be worried if it detracted from their case, to say, do you mind if she comes back or goes a day earlier or comes back for these days.  That is what cooperative parenting is all about.  Far from weakening a party’s case, in this Courtroom that sort of conduct will enhance their case.  We are looking for parents that put the best interests of a child ahead of their own feelings.  So I would hope that happens.  I cannot order it to happen. 

27. Who knows?  Hopefully the birth of the child will go well.  Sometimes, new mothers barely make it to hospital and they are released the next day.  On the other hand as we know from the mother’s experience in this case, much of her confinement spent in hospital because of her other health issues.  It can be a very serious and complicated thing.  You cannot cover all those situations with Court orders. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 5 December 2014.

Associate: 

Date:  20 January 2015