Bligh and Bligh
[2008] FMCAfam 446
•16 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLIGH & BLIGH | [2008] FMCAfam 446 |
| FAMILY LAW – Parenting – interim orders – variation of consent minutes made on 23 February 2001 – father saying he will abide the orders of the court – best interests of children. |
| Family Law Act 1975, ss.60BB, 60CA, 60CC, 61DA, 65DAA |
| Rice and Asplund (1978) 6 Fam LR 570 |
| Applicant: | MR BLIGH |
| Respondent: | MS BLIGH |
| File Number: | MLC 3569 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 6 May 2008 |
| Date of Last Submission: | 6 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ham |
| Solicitors for the Applicant: | Hale & Wakeling |
| Counsel for the Respondent: | In person |
ORDERS
The title of the proceeding be amended so that the mother’s surname is “Bligh”.
The matter be adjourned to 17 October 2008 at 10.00am for final hearing (with an estimated hearing time of 1 day).
Pursuant to s.68L(2) of the Family Law Act 1975, the children C born in 1995 (“C”) and M born in 1997 (“M”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon;
(c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
(d)the independent children’s lawyer prepare a minute of the orders he/she will recommend be made as final orders.
The mother forthwith seek from a general practitioner a referral to Dr M for therapeutic counselling for the mother, the father, C, M and Dr D.
Pursuant to section 13C(1)(a) of the Family Law Act 1975, the mother, the father, C, M and Dr D attend family counselling with Dr M to attempt to deal with their issues relating to the care of C and M.
The mother, the father, C, M and Dr D attend at such times as requested by Dr M.
Any cost of the therapeutic counselling after any available private health insurance or Medicare rebates be shared by the parties equally, save that the mother shall be responsible for no more than $50 per session.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties, C, M and Dr D attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia for the purposes of the preparation of a Family Report to be given to the court on or before 12 September 2008.
The Family Report deal with the following matters:
(a)any views expressed by C and M and any matters (such as their maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of C and M.
The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.
Within 7 days of being notified of the identity of the Family Consultant, the solicitor for each of the parties (or, if unrepresented, then the party himself or herself) deliver or cause to be delivered to the Family Consultant copies of the following documents:
(a)all relevant applications, responses and affidavits filed by the party in these proceedings; and
(b)any intervention or restraining orders currently in force.
The mother file and serve any further affidavit to be relied upon by 4:00pm on 19 September 2008.
The father file and serve any further affidavit to be relied upon by 4:00pm on 3 October 2008.
The independent children’s lawyer file and serve any affidavit to be relied upon by 4:00pm on 10 October 2008.
By 4:00pm on 15 October 2008, each party and the independent children’s lawyer file and serve an outline of case document including the following:
(a)a list of the documents to be relied upon;
(b)a brief chronology;
(c)an outline of contentions with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s.61DA),
(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(iii)each of the considerations relevant to determining the best interests of C and M (s.60CC factors);
(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
(v)any other matters relevant to the decision; and
(d)a statement of the precise orders sought.
Each party have liberty to apply.
A direct transcript of today’s proceeding be provided to each party.
The father’s application filed on 2 May 2008 be otherwise dismissed.
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
THE COURT ORDERS UNTIL FURTHER ORDER:
All previous parenting orders are suspended.
Commencing 22 May 2008:
(a)M spend time with his father from after school each alternate Thursday; and
(b)C spend time with her father from 9.00pm each alternate Thursday –
until before school the following Monday, or before school the following Tuesday if Monday is a non-school day.
Commencing 22 May 2008, the mother deliver C to the father’s home each alternative Thursday at 9.00 pm.
The father and the mother are restrained from arranging social engagements for C and M during the time that they are to spend with the other parent.
Notwithstanding any other order, on:
(a)each child’s birthday;
(b)each parent’s birthday;
(c)Mr N’s birthday on 22 July;
(d)Ms N’s birthday on 15 June;
(e)Dr D’s birthday on 20 November;
(f)Christmas Day;
(g)Easter Sunday where it is not part of term 1 holidays;
(h)Rosh Hashona;
(i)Yom Kippur; and
(j)the first day of Passover –
C and M shall spend with the parent with whom they would not otherwise be for:
(i)a minimum of two hours immediately after school if the event is on a school day; or
(ii)a minimum of four hours if the event is not on a school day.
AND THE COURT NOTES THAT:
A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
C.Pursuant to ss.62B and 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 are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bligh & Bligh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3569 of 2008
| MR BLIGH |
Applicant
And
| MS BLIGH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the reasons for certain interim parenting orders that were made at about 5.00 pm on 6 May 2008. Due to the late finish in court, the parties agreed that it would be preferable for the reasons to be delivered on another occasion.
The parents were married in October 1990 and separated in September 1999. In the meantime, they had two children, C who was born in 1995 and who is now 13 years old (“C”) and M who was born in 1997 and who is now 11 years old.
Parenting orders were made by consent on 23 February 2001. Olivia Nikou SC represented the father and Peter Young QC (as his Honour then was) represented the mother. The orders provided for C and M to live with their parents on a week about basis during school terms and during term holidays and on a two week about basis during the summer holidays. Changeover was to be at school or at a McDonald's.
It seemed to be common ground that the post-separation relationship between the parents was conflicted. It seems that there have been numerous applications to the Family Court. However, the material from those applications was not put before the court in the present application and I have not had regard to it.
It was explained to the court on 5 May 2008 that C had spent little time with her father since about 30 December 2007. M had continued to spend time with his father on a week about basis until 21 April 2008. On that date, M was due to commence a week with his father but difficulties arose and M remained with his mother.
The present applications
The present matter came before the court by way of an application filed by the father on 22 April 2008 seeking a recovery order in respect of M. A registrar ordered that the application be served forthwith and listed the matter for hearing on 30 April 2008. On that occasion, it appeared that the mother had been avoiding service. Orders were made on 30 April 2008 for substituted service, adjourning the matter to
5 May 2008and requiring the mother to attend court personally on
5 May 2008.
The father filed an amended application on 2 May 2008 in which he sought orders that C, M, the mother and the father attend upon a family consultant, Ms Tonya Miles, on 30 May 2008 for the purposes of the preparation of a family report.
The mother attended court unrepresented on 5 May 2008. The mother is a lawyer but she told the court that she had not practised for
10 years. She said that previously she had worked in the property area. The father is also a lawyer. The mother said that she intended to obtain legal assistance eventually but wished to proceed without legal representation at that stage.
The mother sought leave to file on 5 May 2008 a response and affidavit. The purported affidavit was unsworn and listed various orders that the mother sought. The purported response set out various allegations of fact. Before reading the documents, I granted leave to file them. However, on examination, it was apparent that the purported response and affidavit could not be filed in their existing form. The mother was directed to prepare documents in proper form and file them in the registry later in the day. She did so.
The response filed by the mother after the conclusion of proceedings on 5 May 2008 sought orders that:
a)
paragraph 3 of the minutes of consent order made on
21 November 2003be discharged;
b)C and M be interviewed by a family therapist, Dr A, on 7 and 8 May 2008;
c)the parties attend the family therapist as directed;
d)the parties resume family therapy at [X] Family Therapy Centre or [Y] Centacare;
e)an independent children's lawyer be appointed;
f)until the family therapist provided a preliminary report, C and M remain in the care of their mother but be available for three short breaks of one night for both children at times to be agreed; and
g)the father return to the mother various items needed by the children for school.
The parents’ allegations against each other
The gist of the father's allegations was that the mother had tried to turn the children against him. The gist of the mother's allegations was that the father was a bully towards the children and they did not want to spend very much time with him. She said in her affidavit that:
a)the children were severely stressed;
b)both suffered from migraines;
c)M also suffered from encopresis (faecal soiling);
d)both had needed medical attention for stress;
e)C while in the care of her father was hospitalised; and
f)the stress was caused by the children having to spend time with their father.
However, the mother provided no medical or psychological evidence about the cause of the children’s stress. I proceed on the basis that there is a real risk that the children are suffering from stress. However, the cause of their stress has not been definitively established at this stage. General experience suggests that the children’s stress could be the result of the high level of conflict between the parents, or any of a myriad of other factors.
As this was an interim hearing, it was not possible to explore or make findings about the circumstances that occurred on 21 April 2008, the overall nature of the various relationships between C and M and their parents, the degree of any stress suffered by the children or the underlying causes of any stress suffered by the children.
Orders on 5 May 2008
Consent orders were made on 5 May 2008 whereby C, M, the mother, the father and the father's new partner, Dr D, were to see a family consultant at 9.15 am on 6 May 2008 for the purposes of an oral report to be given to the court at 2.15 pm on 6 May 2008.
A further order was made not by consent whereby the mother was to deliver C and M to their father at 5.00 pm on 5 May 2008 and the father was to return the children to their mother at 8.00 pm on
5 May 2008. The mother would have consented to an order that the children spend time with their father between 5.00 pm and 7.00 pm, rather than 8.00 pm. The meeting between C and M and their father between 5.00 pm and 8.00 pm on 5 May 2008 apparently proceeded without incident.
The family consultant’s report
The relevant people attended a family consultant, Mr Urlini, at 9.15 am on 6 May 2008. Mr Urlini gave an oral report to the court at 2.15 pm. He said that the case has a very long history, which, sadly, concerned “a very conflicted family”. He said that there were many areas of dispute between the parents. He said the areas of dispute concerned the normal sorts of things that parents in general had to discuss with each other and make arrangements about.
However, Mr Urlini said that there was very poor communication between the parents, and, regrettably, C and M were well aware of the disputes between their parents. Mr Urlini said that the children had paid a price for the poor communication between their parents.
Mr Urlini said that the father had indicated that he was prepared to respect the position adopted by C. Mr Urlini said that there have been some tensions between C and her father which resulted in C not being well disposed to spending week about time with her father. Mr Urlini said he suspected that C had adopted a somewhat oppositional position. She told Mr Urlini that she did not wish to be tied to a rigid regime, but wished to see her father “whenever”.
Mr Urlini said that M was keen to reduce the amount of time he spends with his father to two nights per week and part of the school holidays. M told Mr Urlini about a holiday with his father in Queensland earlier this year. M complained that the flies were too big, the fishing water was dangerous and he got sunburnt. In relation to time with his father generally, M complained about his father's friends and complained that his father used bad language, his house was insalubrious and the police were frequently called to the father’s house (apparently by the mother). M also said there was an unspecified problem at the father's farm in Tasmania.
Mr Urlini said that he was struck by the fact that, regrettably, C and M are privy to adult information Mr Urlini said that,
M is well aware that his parents hate each other, and one can only wonder what this says and does to a child who, hopefully, loves both his parents. It must put the child in a very difficult position.
M said that it was hard for him to go for extended periods of time to his father's home without his sister being present. He said that he misses his sister and wants her to be around.
Mr Urlini said that, in his experience:
it’s certainly not uncommon for children caught in severe loyalty conflicts to resolve such conflicts by opting to spend less time with one of the parents. It’s almost like it’s too hard for them to continue. It’s just far too difficult.
Mr Urlini said that both children reported that their mother encourages them to spend time with their father. Mr Urlini said that the court needed to consider whether M can or should have a relationship with his father separately from C.
Mr Urlini referred to the “awful situation they all appear to be in” and said that he urged and encouraged the parents and the children to participate in family therapy. He recommended Dr M. Otherwise,
Mr Urlini said that he was unable to make recommendations.
The father’s statement to the court
The father said through his counsel that he wished to address the court directly. He did so. He said that he adored his children. However, he said that he was unable to go through any more litigation, any more counselling, any more attempts to rebut completely unfounded allegations of sexual and physical abuse of his children. He said that he had been constantly attacked by the mother over the eight years since separation and could not take it any more. He said that he would abide the order of the court.
The family consultant’s response
In response to the father’s statement, Mr Urlini said:
I have a firm belief that children need two parents in their lives. I'm also very mindful that I am not privy to the kind of history that this family has been through. Obviously a lot of things have happened, I suspect very unpleasant things have happened. Each parent clearly has a view of their particular way of seeing things and they obviously view certain events in their own light and they believe that the way they see things is the correct way. I don't know what's transpired between these parents, but obviously things have been bad enough to make the father in this case feel that it's probably not in the children's interest for him to pursue the matter much further be it may cause either him or the children further pain and distress, but I'm always wary, your Honour, of people making decisions on the spur of the moment. I'm sure that the father has thought about this a great deal. I think your Honour indicated there's a possibility of the case being adjourned to give people perhaps a chance to think about these issues a little bit more. I don't know if that's what your Honour was thinking of, but I'm always wary of decisions being made in haste and in heat. It's his decision, clearly. He's an intelligent man, as Mr Ham has indicated, as is the mother as well. But I would caution against making decisions in haste, your Honour, in a situation like this. It's a bit of a cliché, but I think it makes a lot of sense.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. I will address those considerations in order.
2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Mr Urlini said that he was of the firm belief that children need two parents in their lives. There is a huge amount of research that supports that belief. The Parliament of Australia has acknowledged and emphasised the need for children to have two parents in their lives by stipulating that the benefit to the child of having a meaningful relationship with both of his or her parents is the first of two primary considerations in ascertaining the best interests of a child.
In intact families, in general, children are able to enjoy the benefit of a meaningful relationship with both of their parents. They are able to love both of their parents equally and are encouraged to do so. They are able to spend ample time with both of their parents, together or separately, and establish independent relationships with each of them. Children benefit emotionally and psychologically from having a meaningful relationship with each of their parents.
However, when parents separate, children are sometimes discouraged by one parent from having a meaningful relationship with the other. The children come to understand that they must choose between one parent and the other. They feel that to continue being loved and protected by one parent they must distance themselves from the other parent. They might then say that they do not wish to spend any or a substantial amount of time with the other parent.
The result may be a diminution in the quality of the relationship between the children and the other parent. This in turn may lead to emotional or psychological damage. There is research which suggests that children who have been deprived of a meaningful relationship with one of their parents may grow up to have relationship difficulties themselves, and have various psychological problems. There is also research which suggests that some people who have been deprived of a meaningful relationship with one of their parents may, in early adulthood, blame their primary carer and distance themselves from that parent as well. Such people ultimately suffer from having no parent with whom they have a good relationship.
There are other parents who separate and do encourage a meaningful relationship between their children and the children's other parent. Such parents are able to contain their own hurt and anger and give priority to the best interests of their children. They are able to speak civilly to the other parent, say positive things to the children about the other parent and make flexible and cooperative arrangements for the children's care and activities. Such parents genuinely accept the benefit for the children in having a meaningful relationship with the other parent and genuinely encourage such a relationship between the children and the other parent. The children of such parents are more likely to be unscarred emotionally and psychologically by their parents’ separation than the children of parents who continue to engage in high levels of conflict with each other.
In the present case, the material before the court, such as it is, suggests that the parents, in the eight years since their separation, have continued to engage in high levels of conflict with each other. I am unable at the interim stage to ascertain whether either party is more or less blameworthy than the other. What seems tolerably clear, however, is that the C and M may be suffering high levels of stress and C and M may feel that they have to choose between their parents. In Mr Urlini’s words, C and M appear at present to be caught in a “severe loyalty conflict”. This is very unfortunate position for them to be in.
2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother alleged in her affidavit filed on 5 May 2008 that:
There is a great deal of evidence to be produced to show that the Applicant is cruel to both children but more often to C, presumably because she is bigger than M and may feel more empowered to answer back to his cruel conduct and that of his partner/fiancé that includes but limited to physical pushing, shoving, hitting, and ridicule, threats, intimidation, locking out, in the presence of only the Applicant, his partner/fiancé, and our children.
The mother also alleged that spending time with the father had caused C and M to be severely stressed. The father denied the allegations.
As discussed above, I am unable to resolve questions of disputed fact at the interim hearing stage. However, I can say that if the high level of conflict between the parents continues, C and M face the prospect of being psychologically damaged in both the short and long term.
3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
C told Mr Urlini that she did not wish to be tied to a particular regime but wished to see her father “whenever”. C is 13 years old and her views can appropriately be given some weight. However, she is not yet old enough for her views to be given determinative weight. In any event, in the time available, her views were not explored in great detail. It may be that the vagueness of her proposal could be clarified with further discussion.
M told Mr Urlini that he wished to spend perhaps two nights a week with his father and part of school holidays. M’s complaints about time with his father appeared to be fairly trifling. More substantially, M said that he found it hard to go for extended periods of time to his father’s house without his sister being present. He said he missed his sister when he was with his father and wants her to be around. M is 11 years old. It is appropriate that some weight be given to his views. However, he is not yet old enough for his views to be determinative.
3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
C and M appear to have a good relationship with their mother at present. Their relationship with their father appears to be strained. Their relationship with their father's new partner, Dr D, also appears to be strained. Nothing of substance was put before the court about the children's relationships with other people.
3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account
sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother maintains that she does encourage the children to have a meaningful relationship with their father. However, Mr Urlini said that he was struck by the fact that, regrettably, M was aware of his parents’ hatred of each other. Mr Urlini said that,
M is well aware that his parents hate each other, and one can only wonder what this says and does to a child who, hopefully, loves both his parents. It must put the child in a very difficult position.
It appears that neither parent says positive things to the children about their other parent. It seems that the parents make it obvious to their children that they hate each other. As Mr Urlini said, this puts the children in a very difficult position. It creates for the children a “severe loyalty conflict” and may lead ultimately to the children suffering long-term emotional and psychological damage.
It is fair to say, at this stage, on the available evidence, that neither parent appears to properly facilitate and encourage a meaningful relationship between the children and the other parent. It is in the best interests of the children that the parents relinquish their hatred of each other and find it in themselves to say some positive things about the other parent to the children. They could both start by saying the other parent is intelligent and loves both of the children very much. There are no doubt many other things of a positive nature that each of the parents could say about the other. They should start doing so immediately.
3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders made on 23 February 2001 provide for C and M together to spend time with their father and mother on a week about basis. C spent no time with her father between about December 2007 and 5 May 2008. M has said that he finds it difficult to spend time with his father without C being present. It seems clear that the week about arrangement with both children cannot continue. The question is whether the two children should continue to see their father together for some set period each fortnight or whether M should spend time with his father without C being present.
In my view, and in accordance with M’s statement to Mr Urlini, it is difficult for M to spend time with his father without C being present. He misses her. The relationship between siblings is one of the most important relationships most people ever have. It is very important to foster such relationships, and keep siblings together wherever possible. It can be detrimental to children to separate them from their siblings. Generally speaking, it is in the best interests of siblings to spend time together with each of their parents.
3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Nothing was put to the court about this factor, except, perhaps, that the children both have commitments that need to be accommodated. The father told the court that he would take the children to their regular commitments. The mother said that she would take C to her father’s house after soccer training finished on alternate Thursdays. These are matters that cooperative parents can generally work out without the need for the intervention of the court.
3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents appear to be well able to provide for the needs of the children, including their emotional and intellectual needs, except one or both of the parents has created a high level of conflict between the parents, severe loyalty conflict for the children and, possibly, such high levels of stress in the children that they need medical attention.
3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The only significant matter in this connection is that the maturity of both parents must be doubted. Subject to any evidence that may be adduced in the future, after eight years of separation, it is to be expected that the parents would have been able to put their grievances behind them for the sake of their children, and deal with each other in a civil and cooperative manner.
3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents seem to have demonstrated a good attitude towards the responsibilities of parenthood, except the responsibility to encourage and facilitate a close relationship between the children and the other parent and the responsibility to cooperate with the other parent in a civil and pleasant manner.
3(j) any family violence involving the child or a member of the child’s family
The mother alleged family violence and the father denies it. I am unable to resolve this disputed issue at this stage. However, on the material before me, the risks to the children do not appear to me to be particularly great. The matters mentioned by the children to Mr Urlini were fairly trifling.
3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
No current family violence orders were brought to the court’s attention.
3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It would of course be preferable to make the order that would be the least likely to lead to the institution of further proceedings. Children are often aware when proceedings about them are taking place in court. It is often very stressful for them. The long history of this matter in the courts suggests that one or both of the parties is not able to work out the various issues that arise in parenting growing children without the intervention of the court. The present application is for interim orders. The matter will return to court for a final hearing, unless the parties are able to learn to deal with each other in a cooperative manner. That will probably require them to not take positions, not take points and not see the case in terms of a win or loss for themselves. It requires them to try to ensure that the children win, by, among other things, feeling encouraged to have a meaningful relationship with both of their parents.
3(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances that appear to be relevant.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The orders made on 23 February 2001 did not provide for parental responsibility. No order dealing with that subject was provided to the court. Presumably, the parents have retained equal shared parental responsibility for the children. Applying s.61DA of the Act, I consider that it is appropriate at this stage to apply the presumption of equal shared parental responsibility. I do not consider that the disputed evidence that the father has mistreated the children warrants a conclusion, at this stage, that there is a real risk that the children would suffer or be exposed to abuse or family violence while in the care of their father.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility, s.65DAA of the Act requires the court to consider the children spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The consent orders of 23 February 2001 provide for C and M to spend equal time with each of their parents. Neither party raised any issue under Rice and Asplund (1978) 6 Fam LR 570. Given that seven years have passed since those orders were made, and given that the children have expressed views contrary to them spending equal time with each of their parents, I consider that there has been a sufficient change of circumstances to enable to court to revisit the orders of
23 February 2001. The mother apparently seeks a reduction in the time the children spend with their father and the father says he will abide the order of the court.
Having had regard to the matters specified by the legislation, I do not consider that it is in the best interests of C and M to continue spending equal time with each of their parents, at least in the short term. Their relationships with their father have, unfortunately, become difficult. They do not wish to spend equal time with him. Their views can properly be given some weight.
As a result, it is necessary to consider whether it is in the best interests of the children to spend a substantial and significant amount of time, as defined, with the father. At the hearing on 6 May 2008, I asked
Mr Urlini what he thought about C and M spending time with their father from, say, Wednesday or Thursday each alternate week, to Sunday. Mr Urlini said he would support that proposal. He thought that reducing C’s time with her father to three or four nights a week would accommodate some of her concerns, and providing for C to spend time with the father when M did would alleviate his concerns.
The father was concerned about a changeover on the Sunday afternoon. He preferred a changeover at school. I consider that it is in the best interests of C and M to accommodate that preference.
C attends soccer training on Thursday nights. She is part of a car pool with her friends. The father expressed his willingness to take C to soccer training. However, conflict had arisen in the past about the father being given C’s soccer schedule. The mother undertook to take C to the father’s house at 9.00 pm after she returns from training. I consider that it is in the best interests of C and M that the mother be permitted to do that. I trust that the mother will deliver C to her father with good grace, and the father will respond accordingly.
Accordingly, until the matter can be heard in full, in my view it is in the best interests of C and M that they spend time with their father from, in M’s case, after school each alternate Thursday to before school the following Monday, and, in C’s case, from 9.00 pm on the same Thursday to before school the following Monday. However, if the Monday is a non-school day, I consider that it is C and M’s best interests to spend time with their father until the Tuesday morning.
The father asked that the new arrangement commence on either
8 May 2008or 22 May 2008. I consider that it is in the best interest of the children that they commence spending time with their father under the new regime on 22 May 2008.
I do not consider that, for the time being, it is in the best interests of C and M to spend additional time over the school holidays with their father. However, I do consider that it is in C and M’s best interests to spend special occasion time with their parents in accordance with the previous orders.
Other matters
There is a clear need in this case for an independent children’s lawyer. There appears to be a long-standing and intractable conflict between the parents, a risk of the children being alienated from their father and allegations of physical and psychological abuse.
There is also a clear need for therapeutic counselling. I accept
Mr Urlini’s recommendation of Dr M as a suitable family therapist. I consider that, in the circumstances of this case, it is preferable for the court to nominate an independent person, rather than acceding to one of the proposals of the parents. It is essential that the parents and the children have confidence in the process of therapeutic counselling and confidence in the independence of the counsellor.
The mother was concerned about the cost of therapeutic counselling and wanted the father to pay for it. The father’s counsel said that the mother’s husband is a multi-millionaire. The mother said that she had no income of her own and her husband did not want to have to constantly pay for things for her children. Mr Urlini pointed out that psychological services are now paid for by the government under Medicare, though there may be a small gap payment. The mother said the father has private health insurance.
In my view, C and M have a serious problem at the moment which may be alleviated by therapeutic counselling. Whoever might have caused the problem, it is simply fundamental that both parents, as good parents, should be doing whatever it takes to help C and M overcome their problem. Accordingly, each parent should pay the costs of therapeutic counselling equally. Having said that, I am prepared to cap the amount that the mother is required to pay at $50 per session, as requested by the mother. I doubt the parents would have to pay that much, after the Medicare and private health insurance rebates. However, to ensure that funding issues do not prevent the counselling going ahead, I do not consider that it is in the best interests of C and M that the father’s contribution should also be capped.
It is also clear that there needs to be a family report in this case. It seems that the parents may well be able to afford a private family report. However, the mother said she could not, as she had to ask her husband for money and he was reluctant to provide it. Proper evidence about the parents’ financial circumstances is not yet before the court. In the circumstances, I am prepared to proceed on the basis that the family report is prepared at the taxpayer’s expense. However, if either party cries poor in the future, they will need to substantiate their claims with proper evidence.
It seems that, in the past, there was an issue about the mother making social arrangements for the children while they were with the father. That is not appropriate. When C and M are with a particular parent, it is that parent’s prerogative to make social arrangements for the children. It is an unjustifiable interference with the children’s time with the other parent to make arrangements that would take them away from that parent. Both parents should be restrained from making social arrangements for the children while they are with the other parent.
Otherwise the matter should be listed for final hearing.
Finally, I would add that, while the father said that he could not cope with further litigation and would abide the order of the court, I do not consider that it would be at all in the best interests of C and M for their father to withdraw from their lives or withdraw from the process of attempting to overcome the present difficulties with C and M spending time with him. As Mr Urlini said, children need two parents. That is so, except in some rare and extreme cases where one parent is incapable of fulfilling his or her role in any acceptable manner. The father in this case does not, on the existing evidence, fall within that category. Accordingly, the court urges the father in this case to remain engaged with C and M and to remain engaged with the process of therapeutic counselling.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 16 May 2008
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