Cagle and Farr

[2011] FamCA 183

FAMILY COURT OF AUSTRALIA

CAGLE & FARR [2011] FamCA 183

FAMILY LAW - CHILDREN -  - Interim parenting - With whom a child lives - Best interests - Child's views

Family Law Act 1975 (Cth) – Part VII

APPLICANT: Mr Cagle

RESPONDENT: Ms Farr

FILE NUMBER: SYC 354 of 2011

DATE DELIVERED: 17 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 15 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd

FOR THE RESPONDENT: Ms Farr, mother in person

Orders

BY CONSENT:

1. Pending further order in relation to the child S born … March 1998 orders 1, 3, 5 and 6.1 made 1 February 2005 in this Court are suspended.

2. Pending further order, S shall live with the applicant father.

IT IS FURTHER ORDERED PENDING FURTHER ORDER:

1. Order 6, 7 and 8 made in this Court on 25 January 2011 are discharged.

2. The father shall return the child P born … October 1995 to the mother no later than 18 March 2011.

3. During Gazetted school holidays the children shall spend time with the parties as follows:

   (a)In the April 2011 holidays with the mother from the commencement of the school holidays in the State where each child lives until 20 April 2011 and with the father from 20 April 2011 until 26 April 2011;

   (b)Thereafter, with the father for the first half of the 2011 school holidays and with the mother for the second half and in each even year thereafter, with the mother to have the children for the first half of 2011 school holidays and each year ending in an odd number thereafter and the father to have the other half.

4. During school terms, S shall spend two weekends with the mother on dates agreed between the parties, and failing agreement on one long weekend (which falls on a public holiday which shall continue for 3 nights) and/or the second and fifth weekends from Friday after school until Sunday evening.

5. The parties shall facilitate flexible and liberal contact by the children with each other and the party with whom the relevant child does not reside.

6. The father shall pay the costs for the children’s airfares for travel from Sydney to Brisbane on each occasion and the mother shall pay the costs of the children’s airfares from Brisbane to Sydney on each occasion.

7. The father shall ensure the child or children travelling from Sydney to Brisbane are delivered to the relevant airline on time.

8. The mother shall ensure the child or children travelling from Brisbane to Sydney are delivered to the relevant airline on time.

9. The parties shall arrange for the child in their respective care to commence therapeutic counselling in relation to which they must:

   (a)       Provide the other party with the contact details for the therapist;

   (b)       Participate to the extent sought by the therapist;

   (c)Provide a copy of the assessment completed by Family Consultant L.

10. The parties and children shall attend a further child dispute conference with Family Consultant L towards the end of term 2, 2011 or at such other time as the Family Consultant nominates.

11. The parties have liberty to apply to Ryan J in relation to any variation or clarification of orders 5(a) and (b) or for further orders designed to give effect to any of these orders.  Liberty pursuant to this order expires in 14 days.

12. All outstanding interim applications are dismissed.

13. The proceedings are allocated to the list of cases awaiting a first day LAT.

14. 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 Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 354 of 2011

Mr Cagle

Applicant

And

Ms Farr

Respondent

REASONS FOR JUDGMENT

1. This is an application for interim parenting orders in relation to “the children” P born in October 1995 and S born in March 1998.  The children will be referred to individually by their Christian names.  They are the younger of the parties’ four children.  Their older siblings, M and B are respectively 20 and 18. 

2. The parties separated in December 2003.  After separation the children lived with the mother and spent time with the father.  Presently the children are with the father.  The pivotal issue is whether P should be returned to his mother. 

3. On 1 February 2005, by agreement, final parenting and property settlement orders were made in the Family Court.  Relevantly, these provided the children would continue to reside with the mother and she was permitted to relocate them from Sydney to Brisbane.  The orders provided the children would spend time with the father during school holidays for block periods at least twice annually, on special occasions and otherwise as they agreed from time to time.  As I understand it the practise has been that the children spend three block periods with the father in Sydney annually during school holidays.

4. After the orders were made the mother and children moved to Brisbane. 

5. In late 2007 the parties’ eldest child, M, by agreement, commenced to live with the father.

6. On 26 December 2010 P and S began what was to be an eight day stay with the father in Sydney.  Because of things P and S said to him, particularly about being mistreated by their step-father and that they did not want to return to the mother, the father said to them “I will try and do what I can about you staying here, but if your mother doesn’t agree you may be forced to go back.”  P responded “I will get on my bike and ride to the airport and ring you from the airport.”  S said “I won’t go back.  I will try and hide.”

7. Concerned about the children’s remarks, the father consulted his lawyers who, the following day, informed the mother the father did not intend to return the children.  She was also advised she would shortly be served with an application for urgent interim parenting orders the effect of which would be that the children stay with the father and see her on a regular basis, particularly during school holidays. 

8. As he said he would, the father commenced these proceedings on 21 January 2011, in relation to which his application for urgent orders was listed on 25 January 2011.  The mother was served later that day.  The father’s interim application came before the Court on 25 January 2011.  Relevantly, the application was adjourned with arrangements in place for the parties and children to participate in a Children’s and Parent’s Issues Assessment.  Pending further order, residence orders in relation to the children were suspended and the mother was restrained from taking any step to cause or encourage the children or either of them to leave the father’s care.  Thus the children remained with the father.

9. The family consultant met with the parties, child and the children’s step-father in early March 2011 then issued his assessment on 10 March 2011.  P told him he missed his mother, baby brother (C), step-father and friends.  He advised he would like to return to his mother in time to recommence school at the beginning of term 2, 2011.  S told the family consultant she missed both of her parents and that she feels “more of a part of” and receives “a bit more attention” in the father’s household.  To the family consultant it was evident tensions existed between the children and it may be the case their relationship is conflicted. He postulated this appeared more than sibling rivalry and that the children might benefit from some respite from each other.  The family consultant did not raise anything which, at this stage, would cause concern about either parties parenting capacity.

10. In terms of future directions the family consultant suggested “the parents might consider an interim parenting arrangement that seeks to alleviate the children’s most immediate and pressing concerns.  These would appear to be [P’s] sense of loss, especially but not only in relation to his mother, and [S’s] current need for extra attention with self-esteem issues.”

11. The family consultant suggested that the parties consider allowing P to return to the mother at the end of term 1 and for S to remain living in Sydney with the father.  It was suggested the children spend one week of the Easter holidays with each parent and that some time towards the end of term 2, 2011 through a child inclusive conference, the parties consider what steps should then be taken in relation to the children’s living arrangements. 

12. When the proceedings commenced before me, both parties suggested temporary orders be made in relation to S, which addressed the period until the end of term 2, 2011.  The father adopted a similar approach in relation to P while the mother said he should immediately return to her.  I was concerned the children needed greater certainty than could be achieved by an adjournment of the interim applications and the pressure which they may feel if this issue lingered.  Thus the notion the interim applications would be adjourned until later this year was rejected. 

13. Albeit with a heavy heart, the mother said S’s views in favour of remaining with the father should, for the time being, be respected.  In relation to S there was no dispute she should spend at least half of the school holidays with the mother and visit her on occasion for a weekend during school term.  Whether that term weekend visit should be once or twice, was slightly contentious. Also that P, if he returned to the mother’s care, would continue to spend time with the father during school holidays. It is agreed the children will commence therapeutic counselling and the family attend the family consultant towards the end of June, 2011.

14. The most contentious issue was thus, whether P should remain with the father or return to the mother.  If he was to return to the mother, there was an issue about whether this would happen immediately, as she proposed, or at the commencement of Term 1, 2011, in 3-4 weeks.

15. While the parties filed quite detailed affidavits, the nature of interim hearings, which do not usually accommodate cross-examination, means the Court is unable to determine contentious matters.  Nonetheless contentious matters may guide any risk assessment and be useful in relation to drawing inferences.  Decisions in relation to children are decided by reference to their best interests, which is, the paramount consideration.  The factors which must be considered, to the extent each is relevant, are found in Part VII of the Family Law Act 1975 (Cth).

16. Both parties’ submissions reveal the focus in this case is upon relationship issues, the effect on the children of changing or not changing their circumstances and whether their step-father’s discipline has been inappropriately forceful.  As to this latter issue the conduct complained of was not said to be sufficiently grave that it justified departure from the 1 February 2005 orders.  Rather, this gave context to the children’s views expressed to the father in favour of remaining with him and possibly explained why in some aspects the children appear to be struggling.  Both the mother and the children’s step-father denied physical mistreatment or heavy-handed discipline of the children.  The children’s step-father has lived with them since 22 October 2007 and he has played a significant role in their lives.  There have been times when the mother has asked her husband to speak to the children in relation to behavioural matters. 

17. To the father, P spoke about his step-father grabbing him on the shoulder, and poking him in the chest when angered.  This was said to have occurred about twenty times (poking and grabbing) with him being angry having occurred every three or four days.  S said her step-father once pulled her up the stairs by her arm and that “usually he pulls me by the shoulders or pushes my face with his hand to force me to look at him when he is angry.”  She said this happened about monthly and that the mother failed to intervene unless her step-father was “really crazy angry”.

18. The children’s step-father acknowledges he has touched P on the shoulder to turn him around and in about October 2010 poked him once in the chest to gain his attention.  According to him, none of this has been aggressive and occurred in the context of a boy in his mid-teens not behaving as well as he might.  In relation to S, there was an occasion, well over six months ago, when the children’s step-father took her by the arm to walk her outside to calm her down.  No more than twice he and the mother have touched S on the chin so as to have her look at them during a conversation.  There was a general denial about inappropriate anger.

19. The family consultant explored these issues.  He reported “[P] suggested that his comments about [the step-father’s] alleged aggression towards him had somehow been exaggerated (he appeared to mean that his comments seemed to have taken on a life of their own) and he stated unambiguously that he is not afraid of [the step-father].  On reunion [the step-father] and [P] embraced affectionately and (on [P’s] part) tearfully.”

20. To the family consultant S described her step-father as “nice and stuff” but “more concerned about his own son”.  Relevantly, no complaint was made by S about mistreatment of her by the step-father. 

21. P’s strong desire to return to his mother and step-father and clear statement he is unafraid of his step-father suggests it is unlikely he has been previously mistreated, albeit, he may have been affronted.  In terms of the future the risk of harm to P from his step-father is assessed as low.  It appears similarly unlikely that S has been mistreated by her step-father and that the risk of future mistreatment by him of her is also low.  In my view, such risk as may exist is adequately addressed by the undertaking to the Court given by the step-father to not physically discipline the children.

22. P’s tears at being reintroduced to his mother and step-father by the family consultant demonstrate it is likely that he enjoys strong and affectionate relationships with them.  Clearly he has felt deeply his separation from them and C.  C is the mother and step-father’s three year old son.  P is a sensitive, intelligent and affectionate child.  At 15 it is important for the Court to acknowledge his views in favour of returning to the mother, with whom he has lived all of his life.  Although he has struggled academically and, late last year as a consequence of bullying changed schools, he has sufficient maturity for his views in favour of a return to the mother to be given significant weight. 

23. Subsequent to release of the family consultant’s assessment, P has asked to return immediately to the mother.  Although it is not possible to be confident why he has done this, it appears he is distressed at ongoing separation from her and his life in Brisbane.  Separation from the mother and his life in Brisbane would thus appear to have become even more difficult for him than when he spoke with the family consultant.

24. If P returned immediately to the mother he may well feel relieved.  Although this means changing school mid-term, his sense of relief could well offset discomfort in joining a class mid-term.  Acting quickly, restores the long-standing situation in which this child has maintained good relationships with his parents, siblings and step-parents. 

25. The parties have agreed to change S’s long-standing living situation on an interim basis.  This is the first time S has been away from the mother and life in Brisbane for more than a few weeks.  Although this is consistent with her present views, it may well be that only with time is she able to maturely evaluate how she feels about whether to reside with the father or mother.  There is a greater degree of uncertainty about the effect on S’s relationships with the mother and her family in Brisbane if S resides with the father in Sydney than there is in the reverse situation for P.  It is thus appropriate to provide for S to initially spend slightly longer with the mother during the forthcoming school holidays and to break up the term gap by a couple of weekend visits, preferably utilising long weekends, by her to Brisbane.  Such an approach preserves S’s relationships and strikes a healthy balance between her past and changing circumstances. 

26. Otherwise the orders provide for the children to spend time with their parents during school holidays.  I have decided against splitting the children’s time during holidays.  Even though there are signs their relationship is conflicted, as they will for the time being live in different homes, it is important their sibling relationship is not placed under pressure through lack of contact.  The mother’s approach to school holiday time being spent by them together probably maximises the potential for a good outcome for the children’s sibling relationship.   Because the children have missed out on so much time with the mother, for the forthcoming school holidays, she will have slightly longer with them.  Thereafter it is appropriate to share their time, as far as different school holiday schedules will allow, together and equally between the parties.  This maintains relationship stability as far as possible.  I have not provided for interstate travel for special occasions and it seems to me this is an issue which the parties still need time to consider.  In relation to this and other logistical issues, should they wish to vary the orders made by me leave is given to do this upon notice and within a specified time frame.  

27. In relation to travel costs, it is agreed the father will pay for the children’s air travel, as unaccompanied minors, one way and the mother the other, each trip. 

28. The parties also agree to arrange for the child in their care to commence therapeutic counselling with the counsellor to receive a copy of the family consultant’s assessment.  Names of the therapist are to be exchanged and both parties, at the [inaudible] behest, are able to be involved. 

29. For these reasons I make the following orders which, I am satisfied, are in the children’s best interests.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 March 2011.

Associate:      _____________________

Date:              17 March 2011