Bookhurst and Bookhurst

[2007] FamCA 888

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST [2007] FamCA 888

FAMILY LAW – CHILDREN – with whom a child spends time – with whom a child lives
FAMILY LAW - INJUNCTIONS – non-denigration –  discussing proceedings with or in the presence of children

Family Law Act 1975 (Cth)

APPLICANT: MR BOOKHURST

RESPONDENT: MS BOOKHURST

FILE NUMBER: SYC 1832 of 2007

DATE DELIVERED: 01 August 2007

PLACE DELIVERED:	Sydney
PLACE HEARD	Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 01 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT:	Karras Partners, Lawyers
INDEPENDENT CHILDREN’S LAWYER:	Ms Conn
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Commission of NSW, Sydney

Orders

1. Unless the parties agree to the contrary until further order of the Court the children, the older son, born … November 1997; the younger son, born … June 1999; and the daughter, born … December 2000; spend time with the father:

   (a)each Wednesday from 5.30 pm until the commencement of school the following morning.

   (b)each Sunday from 4:00 pm until the commencement of school on the following Monday morning save that in each alternate weekend they be with the father from 9:30 Saturday until the commencement of school on the following Monday and unless the parties agree to the contrary that is to commence with Sunday overnight to Monday on Sunday, 5 August 2007. 

   These arrangements are to apply during school term.

2. During school holidays unless the parties agree to the contrary the children spend time with the father from 9:00 am Sunday to 9:00 am Tuesday each week.

1. At all other times the children are to reside with the mother.

1. Orders are made in terms of paragraphs 4 and 5 until further order of the “Minute of proposed Orders Prepared by the Independent Children's Lawyer” marked Exhibit A and set out hereunder:

“4.That both parties be restrained from denigrating the other party in the presence of the children.

5.Each party be restrained from discussing proceedings with or in the presence of each or all of the children.”

1. Otherwise the Application in a Case filed 23 March 2007 and the Response filed 5 July 2007 are dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judicial Registrar Loughnan delivered this day will for all publication and reporting purposes be referred to as Bookhurst & Bookhurst.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1832/07

MR BOOKHURST

Applicant

And

MS BOOKHURST

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to three children, an older son, a younger son and a daughter who are 9, 8 and 6 years of age respectively. They are in Years 4, 2, and 1 at H Public School.  Their father and mother are 46 and 47 years of age.   I understand the father has a partner, and she has a child, a son, who is 6 years of age.  The father rents premises at C, and the mother lives in the former matrimonial home at B. 

2. The parents were married in 1996 and separated in August 2006 when the father moved into rented premises.  The father works as a professional and the mother is a health worker trading on her own account.

3. The father says the living arrangements have varied.  He had no overnight time for a month or so, just four hours on a Saturday or a Sunday and nightly telephone calls; and then for another month one overnight per week, alternating between Saturdays and Sundays and two hours on a Wednesday but with no holiday time and no overnights. Then from 18 October through to Christmas, overnight Wednesdays and alternative Saturdays or Sundays and during the Christmas holidays he had two days and two nights at a time.  And then during the first term this year he says each Wednesday night, and then each alternate Saturday and Sunday nights - 9 am Saturday to before school Monday.  

4. There is a final hearing soon, with the first date of the Less Adversarial Trial on 15 October. These proceedings were commenced by the father by an application for some interim parenting orders.  The mother responded with a 42 page affidavit and a number of supporting affidavits from a godfather, babysitter, and a Rabbi, and updating affidavit. The father has provided three affidavits and they provide alarming extensive detail.

5. Now, I have already said things to the parties today, and I do not want to labour it.  I think it is a very bad thing that the parties have filed so much material.  The parties have raised issues in the affidavits that the amended legislation seeks to have not raised on paper before the final hearing so that the parties have the best chance of a child focussed resolution in a less adversarial exercise. That exercise is the antithesis of this hearing.  And, I mean, it is a nonsense.  There is great criticism in the affidavits by each party of the other and yet neither of them seeks supervision of the other's care.  Neither of them seeks to limit the other to day-only time.  And the problem you get it does not make any sense.  The argument becomes, ‘I should have more time with the children because he/she is a bad parent’.  Which is just not logical or sensible. 

6. The parties are obviously intelligent people.  They have acknowledged each other to be loving parents, and yet the background facts are that they put their children under enormous pressure.  The children are represented and the representative says the only advantage really in having some orders is that, at least, the rules of engagement would be settled and there would not be as much scope for the children to be left to make decisions.

7. There are worrying allegations made in relation to the father's behaviour and the father's problems with inadequate sleep. He recites what he has done about that over time, the various attempts made to settle a suitable medication.  He refers taking Stilnox in the not too distant past, and some other drugs. There are records from his general practitioner about those matters. There is some corroboration of problems with anger and other matters that the mother has raised. 

8. But, as I said, in the course of submissions it becomes a nice judgment as to where you draw the line. If the children are going to be safe, for example, on a weekend from 9 am Saturday until the following Monday, I doubt that we will find a professional who will say, it is unsafe or somehow not in the best interests of the children, to spend overnight on the intervening Sunday. 

9. The mother admits that she has misled the authorities.  She says that she made a notification to the Domestic Violence Assistance Line on 9 April.  That led then to an alert to DOCS.  Then DOCS rang her and she spoke to them. Her evidence, as I understand it, would be that she lied to the authorities saying that, "The father could not be volatile.  He is a loving father.  I have no grounds to say that he had been physically abusive.  He is a beautiful father" and so on. It is not for me to be critical of the parents but that suggests it is possible for the mother not to be an entirely reliable reporter of the facts. On the other hand it might be that the mother made a judgment in a violent situation that it would be safer to expose the children to ongoing harm rather than reveal to the authorities the concerns she has about that harm.  That is not a course that anyone associated with this work would advocate.  It suggests either that the harm was not as serious as the mother raised or that her judgment was completely overborne by it. 

10. There are risks in dealing with the proceedings like this.  I should perhaps have sent the parties away.  I think probably these duty lists get so busy and at the end of the day when parties have spent money to come to Court one says, "All right, you are not reached today and it will be heard on another day."  But it might have been better in this case not to have had a hearing. The damage done to the children by misleading the parties into thinking that this voluminous evidence is helpful or relevant may be greater than there being some doubt between the parties as to what the living arrangements are going to be.

11. As I said these are intelligent people and they are going forward to a process in October where they are going to represent themselves as people with whom three children of relatively tender years can live safely.  So they are going to represent themselves as people who can negotiate, compromise, in relation to decisions about the children, and that needs to start sooner than later. 

12. The children are represented.  I am asked to make an order on their behalf that achieves two things.  Firstly, that settles what the times of the arrangement should be unless the parties agree to something else; and secondly, to provide some additional time for the children with their father.  It is conceded in that regard that the proposed orders do not always meet the expressed views of all of the children. 

13. As to the matters I am required to take into account - there is a hierarchy of reasoning in the legislation.  If the Court is to make an order for equal shared parental responsibility, then I am required to consider equal time, even though no-one in this case is asking for it.   I am required to consider it with a view to ordering it.  If I do not order it, I am required to consider substantial and significant time and I think that either of the proposals meets that criterion.

14. There is a dispute about parenting capacity and I am not going to make an order today for equal shared parental responsibility. Every paragraph of the affidavits confirms that the parties have very different parenting styles.  So it might be, I concede in this case, that the Court cannot be confident that the parties are going to be able to discharge their obligations about parental responsibility without embarrassing the children. 

15. Some of the matters are trivial but the fact that they have been raised by a party in an affidavit suggests a concern about that party, so it is hard to know how that is going to pan out. 

16. If the presumption does not apply I am to do the best I can by reference to what is in the best interests of the children.  Section 60CC sets out primary considerations and additional ones. The primary considerations are the benefit to the child of having a meaningful relationship with both parents; and the need to protect the child from physical or psychological harm, being subjected to or exposed to abuse, neglect, or family violence. 

17. Apparently the second consideration does not apply here because the mother proposes that the children be with the father for periods of up to two days at a time.  I suppose there might be an argument about the father's proposal for block times during school holidays. As to the benefit of a child having a meaningful relationship, the accepted wisdom is that as much time as practicable is often in the best interests of children.  Here, each of the parties is in paid employment so there is a premium placed on weekend time, and that is why we have the problem that we have here. 

18. If there are long gaps in the fathers time with the children, that may detract from there being a meaningful relationship between the father and the children, and there could be long gaps in the mother's proposal.

19. Then we have any views expressed by the child.  The children's lawyer says, particularly, the older son had a second interview with her, and the parties have referred to some problems he had in settling down, of bedwetting behaviour dating back sometime. That could be a physical expression of an inability to cope with extended contact. I gather that the thrust of it would be he does not want that additional overnight.

20. As to the nature of the relationship of the child with each of the child's parents.  I am not quite sure how that will go.  We do not have any expert evidence here today.  The mother has made some statements to the Department of Community Services, but she resiled from them. I understand her case to be that she is very worried about the father's intemperate behaviour and his volatility but she is pursuing overnight time, unsupervised. She must think there is something to be benefited from the time between the children and the father.  She must think that they have a good enough relationship with him.

21. Now, the father is very critical of the mother in aid of his application they spend more time with him.   Not in aid of an application that her time with them be circumscribed or supervised.  So I take it that he thinks they have a good relationship with her. 

22. As to the willingness of the parents to facilitate and encourage a close and consuming relationship between the child and the other parent:  I cannot make a decision about that.

23. As to the effect of changes in circumstances, that does not arise. As to any practical difficulty or expense, that does not arise. 

24. The capacity of the parents is very much in issue.  I think that will be the real crux of the inquiry by the trial Judge   That and the attitude to the children and the responsibilities of parenthood demonstrated by the parents. I am unable to make findings about that today. As I say, the parties reveal some very odd things about themselves in the affidavits.  Happily, unless something extraordinary happens the parties will not be able to rely on them in the final hearing, and that would be a mercy, I would think, to the respective deponents.

25. As to family violence - there are allegations that gave rise to the mother's notification and she recites them in her affidavit. However, she thinks that the risks are acceptable overnight every second Saturday, overnight on a Wednesday and for two days at a time during school holidays.

26. I am required to pay particular attention to the way the parties have performed against those things in the recent past, and that has been problematic. 

27. So in relation to the time proposed during school terms, I think the proposal of the independent children's lawyer is an appropriate one.  The argument is about the duration of periods with the father, not whether the children should spend time with him or not. The mother has made a judgment about either the limit of the father's capacity behave, or of the children's capacity to cope with him.  There is no scientific basis for it that I can see, and the logic would have it as a matter or duration on each occasion, and I do not think that these proposals are outside the time frames contemplated by the mother.

28. As to the school holidays, the fact is that I am only dealing with one set of school holidays, and I am not going to make any changes.  There has been no block periods of a week at a time or anything like it, since separation.  No harm has come to the children.  I think we leave it as the mother's proposes, which is two days at a time. 

29. No voice was heard against two proposed injunctions, that the parties be restrained from denigrating the other in the presence of the children and restrained from discussing the proceedings with, or in the presence of the children.  They are unremarkable orders and to the extent possible the children not have to hear anything critical of their parents, and they should be left ignorant of the details of the proceedings. 

30. If the parties really want a message to get to the children about something, they might talk to the independent children's lawyer about it, and see whether there is a way of managing the intent of that message without conflicting with that order. 

31. There is an application for a single expert.  That has been deferred pending the appointment of an independent children's lawyer and the contents of the affidavits make me think that this is a case where the Judge might want to draw certain things to the attention of the expert.  Given that the final hearing will start soon, it would be best to wait and involve the trial judge in this issue. The best course would be to wait now until the Judge can take that course.  It would be an option for the parties to commission an expert but to delay the interviews until a Judge has been involved. Not much would be achieved by that so I will leave it to the trial judge. 

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  24 August 2007