Coles and Brookes

[2010] FamCA 1233

FAMILY COURT OF AUSTRALIA

COLES & BROOKES [2010] FamCA 1233

FAMILY LAW – CHILDREN – Best interests of the child – views of the child given significant weight – where relationship between the parents is fraught – all parenting orders discharged

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(4)

APPLICANT: Mr Coles

RESPONDENT: Ms Brookes

INDEPENDENT CHILDREN’S LAWYER: Ms B. Smithies, Legal Aid Commission (ACT)

FILE NUMBER: CAC 1641 of 2009

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 17 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K. Hubert

SOLICITOR FOR THE APPLICANT: Capon & Hubert

COUNSEL FOR THE RESPONDENT: Mr A. Fleming

SOLICITOR FOR THE RESPONDENT: Elizabeth Fleming & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms B. Smithies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission (ACT)

Orders

IT IS ORDERED THAT:

1. All previous orders in relation to N, born … May 1997, are discharged.

2. Pursuant to s 61C of the Family Law Act 1975 (Cth), each of N’s parents has parental responsibility for N, subject to the orders set out hereafter.

3. Neither of the parents will enrol N in any school without obtaining the prior consent of the other parent. 

4. Each of the parents will inform the other parent as promptly as possible about any medical issues which arise in relation to N when he is with that parent. 

5. Each of the parents will keep the other parent advised of the name(s) of any medical practitioner(s) or other practitioner(s) of a similar sort who have occasion to treat N during the period that he is with that parent. 

6. Each of the parents will authorise and direct any school that N attends, or any medical practitioner or a practitioner of a similar sort referred to in the preceding order, to provide to both parents, or each of them, such information about N as may be appropriate (consistent in the case of a medical practitioner with N’s privacy). 

7. Neither parent will move from the southern coast district without the prior consent of the other parent (in writing) or an order of this Court.

8. Neither parent will enrol N or arrange for him to be involved in any sporting or associated activities without the prior consent of the other parent. 

   a.Notwithstanding the last mentioned order, if N wishes to be enrolled in or to participate in the sporting or associated activities, if his parents are unable to agree, he may communicate with the Independent Children’s Lawyer, whose appointment is hereby extended for a further two years from the date of these orders.  The Independent Children’s Lawyer may make application to the Court if she is of the opinion that it is appropriate to do so, for a Court determination.

9. During school terms, N will live with each of his parents on alternate weekends from after school on Friday until he returns to school on the following Monday morning

   a.Unless the parents otherwise agree, N will spend the first weekend of a new term with the parent with whom he has not been living for the last half of the school holidays immediately preceding his return to school. 

   b.During the time that N is with each parent that parent will ensure that N attends and, if necessary, transport N to sporting commitments that he has on that particular weekend. 

10. In addition to the weekends referred to in the preceding order, N will spend, in each fortnight, not less than two other nights with his mother and such further period with his mother as he, N, wishes. 

    a.Generally, although this order is not intended to be prescriptive, the additional nights should either immediately precede or follow the weekend that N would ordinarily spend with his mother, but N is free to choose which nights within the fortnight he will spend with his mother.

    b.Each of N’s parents will do such as things as may be necessary to support N in his freedom to make decisions about where he will spend time in accordance with these orders.

11. In addition to the times referred to above, N will spend one half of each of his school holidays with each of his parents.  He will spend the first half of school holidays with his mother in years ending with an even number or a zero, and the first half of school holidays with his father in years ending with an odd number. 

12. Nothing, however, in these orders will preclude the parents in consultation with N, agreeing to a different arrangement.

13. Neither parent will make any arrangements for N to be involved in any activities during the holidays during the time that he would ordinarily be spending time with the other parent, without that parent’s prior (written) consent.

    a.If N wishes to be involved in such an activity during his school holidays and his parents cannot agree he may, similarly to the order set out above, make contact with the Independent Children’s Lawyer and express his views.  The Independent Children’s Lawyer may make application to the Court if she is of the opinion that it is appropriate to do so for a Court determination.

14. N will spend from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day with the parent with whom he is not otherwise spending that half of the school holidays. 

15. In each case the changer over between the parents in relation to N is to occur if it is on a school day, by N travelling to the school with the parent with whom he has been living or by bus from the parent with whom he has been living and returning to the other parent either by that parent picking N up or by his travelling on bus to that parent at the end of the school day.

    a.If the change over is on a non-school day then it will occur at 9.00am at the A Hotel carpark.

16. The Independent Children’s Lawyer, Ms Smithies, will communicate with N as soon as possible and discuss with him the terms of the Orders that have been made and to provide to him in due course a copy of my Judgment in these proceedings when it is settled.

17. All other extant applications are dismissed.

    a.This includes the father’s application for relocation.

    b.It also includes any outstanding contravention applications by either party.

18. Neither parent may hereafter file and serve any further application in relation to N without such application being accompanied by an affidavit setting out the evidence upon which the application is to be based and causing such application to be filed (without service on the other party) at first instance in the Court for determination by a Judge of the Family Court of Australia           sitting in Chambers about whether the application should be summarily dismissed as failing properly to be supported by the evidence filed in conjunction with the application, or may direct that the application be filed and served on the other party, and list it accordingly.

    a.In particular, the father will not file a further application for relocation from the south coast district on or before 1 November 2011 and will then, if he should choose to do so, do so only in accordance with the procedures outlined in these orders.

19. Both parties will attend upon Relationships Australia or, in default of their agreement as to the organisation or counsellor upon whom they should attend, such person or organisation that may be nominated by Senior Family Consultant G, a Family Consultant attached to the Family Court of Australia at Canberra.  They will participate in such intake procedures as may be required by the person or organisation and will thereafter attend as suggested by the counsellor until both parents agree that there is no point in further participation, or the counsellor determines that there would be no further utility in the parents’ continuing to attend. 

    a.The purpose of the counselling is to enable the parents to try to develop means of communication about N and their other children and to develop techniques which would permit them to communicate generally without the communication being aggressive, acrimonious or unhelpful. 

20. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

21. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

22. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1641 of 2009

MR COLES

Applicant

And

MS BROOKES

Respondent

REASONS FOR JUDGMENT

1. The parents in this matter have been in dispute for virtually all of N’s life.  He is of an age where his opinions and views should be taken into account.[1]  I accept that both parents want what is best for him but have trouble in agreeing about what that is.  Sadly, they cannot accept what I find to be the case, that “[N] wants both parents in his life.”  That is a quotation from the family report (at page 3). 

   [1] Family Law Act 1975 (Cth) s 60CC(3)(a).

2. N is torn between his parents at a time in his life when he should be largely carefree.  In particular, he should not have to spend his time being more mature than his parents have been.

3. It is his best interests I must place as my paramount consideration in accordance with s 60CA of the Family Law Act1975 (Cth) (the Act).

4. I have made reference indirectly above[2] to the presumption in s 61DA(1) of the Act, that I should apply the presumption that there should be equal shared parental responsibility.  I find that the presumption is rebutted in accordance with s 61DA(4) of the Act.  These parents cannot at the moment at least consult with each other.  They cannot even talk to each other.  The presumption is clearly rebutted. 

   [2] In the form of the orders I have made.

5. The orders I have made provide for parallel parenting with connexions.  For some parents, it would not be necessary to prescribe the provision of some basic information.  For these parents, it is.

6. If the parents are unable to agree, my orders empower N to seek assistance to make his opinion known to the Court.  It would be a wonderful gift from N’s parents to him if he never had to use that power. 

7. Any decision I make about N must be made in his best interests.  And the matters that I am to take into account in determining what his best interests are set out in the Act in s 60CC(2) and s 60CC(3). 

8. The two primary considerations might be dealt with in these terms.  N wants a meaningful relationship with both his parents.  That is clear from the family report and from the evidence of both of the parents.  Both parents want a meaningful relationship with N.[3]  I accept that that is the case.  Both parents assert that they want N to have a meaningful relationship with the other parent.  The question really is how.  I do not believe that N is at any risk of harm physically from either parent.  However, unless both his parents “back off a bit” they will inflict potentially serious psychological harm on N.[4]

   [3] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [4] Family Law Act 1975 (Cth) s 60CC(2)(b).

9. The mother sees the father as domineering, dominating, self-opinionated and controlling. I am prepared to find he is all of those things.  But he is nevertheless a good father to N.  The mother is quietly determined, and I find somewhat inflexible.  She is to some extent the immovable object into which the irresistible force of the father crashes.  Sadly, N is in the middle of this train wreck.  Each parent has a good relationship with N.  I rely for that at least in part upon the terms of the family report (at page 3).  Each is important to N, both in his opinion – and that comes again from the family report – and from my own observations of the parties in Court and from the evidence that is presented. I can find that the relationship and the importance to N of that relationship is objectively determined.

10. There was in the course of the proceedings little evidence of the importance of wider family influences.[5]  But N’s sisters should be, and hopefully will be, with the assistance of these orders, a significant part of his life in the future.  The orders facilitate the maintaining of those relationships.  His relationship with his wider family is not a matter which had been a major feature in the evidence put before me. 

    [5] Family Law Act 1975 (Cth) s 60CC(3)(b) refers.

11. The Act requires that I consider the ability of either parent to facilitate a relationship of N with the other parent.[6]  I have no confidence that either parent will facilitate N’s relationship with the other parent at all.  They “talk the talk” but at the moment, they are but toddlers in the business of “walking the walk”.  N should not be separated from either parent.  He should also be able, so far as teenage boys can, to enjoy his sisters’ company. 

    [6] Family Law Act 1975 (Cth) s 60CC(3)(c).

12. The Act requires also that I take account of the likely effect of any changes in the child’s circumstances inter alia,[7] as well as the expense of the contact.[8]  In this context, if the father were to relocate as he originally proposed he would, the costs would be significantly increased for N to spend time and have any meaningful time with his mother.  If he is in proximity to her, the flexibility that became apparent as a requirement from the family report, and to some extent from the evidence of the parties about what N has said, is possible.

    [7] Family Law Act 1975 (Cth) s 60CC(3)(d).

    [8] Family Law Act 1975 (Cth) s 60CC(3)(e).

13. I am obliged to also under the Act to take account of the capacity of either party to provide for the emotional, intellectual, and physical needs of N.[9]  I have no doubt about the capacity of each of the parents to do this, with the limitations and qualifications I have set out above.  The difficulty for each of the parents is their almost total inability to get on with each other, and the effect that that has on N.  In many respects, if you looked at the question of the attitude of each of the parents and their responsibilities as parents,[10] N has a higher level of responsibility as a child to his parents, than the parents have as parents towards him.

    [9] Family Law Act 1975 (Cth) s 60CC(3)(f).

    [10] Family Law Act 1975 (Cth) s 60CC(3)(i).

14. There are no issues of family violence that I consider to be relevant to my determination in these proceedings.[11] 

    [11] Family Law Act 1975 (Cth) s 60CC(3)j) & s 60CC(3)(k).

15. While I think it is quaint that under the Act I am to take account of the fact that I should make orders that would be less likely to produce further litigation between the parties,[12] I do not hold much hope given the size of this file, my experience with the parties over the years and my determinations about their personal characteristics.  It would be a matter of optimism, not a matter of expectation, that I would hope that these orders might bring an end to the dispute between the parties.

    [12] Family Law Act 1975 (Cth) s 60CC(3)(l).

16. I am also obliged under the Act in s 60CC(4) to look at the way in which the parents were working together and have exercised their responsibilities as parents.  The attitude of each of the parents in this area is not a shining moment.  It is not really a shining year for either parent.  It would be hoped that today might represent a line in the sand from which each of the parents would be reluctant to retreat.  And in the words of the Hon. Julia Gillard MP, Prime Minister of Australia, they should “move forward” from today.  I should mention that in the course of proceedings, and I accept that the proceedings when they finally occurred were somewhat truncated because they occurred late in the day, the parties have had some opportunity to talk and to consider with their legal advisers, the implications of the some of the matters before the Court.

17. Wisely, in my opinion, Mr Hubert on behalf of the father, announced that his client was not pursuing, at this time at least, an application for relocation from his present area on the south coast of New South Wales to Canberra or to Sydney.  I have made orders about that in the course of these proceedings, and it is in my opinion a sensible view on the part of the father, and indeed an exercise of significant parental responsibility, that he withdrew in relation to that matter.  Equally during the course of the proceedings although they were in part listed to determine the matters, Mr Fleming – again, wisely in my opinion, presumably on instructions from his client – did not press the issues of contravention.  The orders I have made, terminated those applications.

18. It is important in my opinion that in these circumstances, N should have that level of freedom consistent with a boy of his age to pursue a proper relationship with both his parents.  I do not pretend that the orders that I have made are necessarily the only possible orders.  Indeed, the parties themselves have come up with variations which may or may not have worked more effectively than the ones that I have made.  My reasons for the particular orders that I have made are that it seems to me that it is important there should be some predictability and stability in N’s life.

19. That means I think that he should spend each second weekend with each of his parents, and that should provide an opportunity for each of them to be involved in and to be responsible for some part of his extensive sporting activities and requirements.  The second element of course is that in my opinion, it is also important that each of the parents should spend some part of his other life with him as well.  And to that end, I determined to adopt the flexibility that had been indicated by each of the parents acting upon the advice of the family consultant, but to move from the total flexibility nominated by Mr Hubert on behalf of the father which I think would probably have the view of continuing to put pressure on N, and to move away from the other more prescriptive opinion expressed by Mr Fleming on behalf of the mother, that there should be in effect a default position of “week and week about” arrangement.

20. The “week and week about” arrangement has not really worked now for some time, and it is clear that N would prefer to spend more time with his father at the moment than with his mother.  I do not want N to be in a situation, however, where he feels that if he does try to spend time with his mother, that this will in some way mean that he is not being loyal to his father and vice versa.  Hence the orders I have made; hence the flexibility involved; and hence, the obligation on the parents to relieve N from the business of being the “meat in the sandwich” between two parents who are pressing upon him quite heavily, even if they do not intend to do so.

21. Those then are the matters that constitute my reasons for judgment.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 17 December 2010.

Senior Legal Associate:

Date:  11 January 2011