Cryall and Peterman (No. 2)

[2007] FamCA 1634

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN (NO. 2) [2007] FamCA 1634

CHILDREN – live with – spend time with

Family Law Act 1975 (Cth)

APPLICANT:  Ms Cryall

RESPONDENT:  Mr Peterman

INDEPENDENT CHILDREN’S LAWYER: Ms Riches

FILE NUMBER: SYC 5885 of 2007

DATE DELIVERED: 6 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 6 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees

SOLICITOR FOR THE APPLICANT: Meyer Pigdon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Riches

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission
New South Wales

Orders

1. The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 26 November 2007.

2. The Court noted that those proceedings will relate in particular to the living arrangements following that date. Particular mention is made over arrangements for the Christmas school holidays and the question of the occupation of the former matrimonial home whether in terms of exclusive occupation or whether the children remain in the home and the parents come and go.

3. Any further documents on which either party seeks to rely in relation to those issues are to be filed and served not later than 21 November 2007.

4. Orders are made in terms of paragraphs 2 and 3 of the husband’s Minute of Orders marked Exhibit 3 as set out hereunder:

   “2. The children live with the husband and the wife forthwith make [T] and her clothing and school items available for collection by the husband forthwith after the making of these Orders.

   3.        The wife spend time with the children on a supervised basis:

   3.1    every second Friday, Saturday and Sunday as follows:

   3.1.1from 3.00pm until 7.30pm on the Friday;

   3.1.2from 9.00am until 7.30pm on the Saturday;

   3.1.3from 9.00am until 7.30pm on the Sunday.

   3.2every Thursday from 3.00pm until 7.30pm.”

5. By consent and without admissions an order is made in terms of paragraph 8 of Exhibit 3 as set out hereunder:

   “8.The wife will not approach, threaten or intimidate [Mr and Mrs Peterman] Senior.”

6. Orders are made in terms of Orders 13, 14, 15, 16 and 18 of Exhibit 3 as set out hereunder:

   “13.The wife have reasonable telephone communication with the children whilst they are in the husband’s care.

   14.The husband (and wife should the children be in her care at those times) facilitate the child [D] attending upon his psychologist [Mr C] once a week, and [M] attending upon a separate counsellor (noting that such counsellor will be arranged by [Mr C]) with such regularity as [M]’s counsellor recommends.

   15.The husband attend upon a therapist for psychodynamic counselling, such therapist to be as recommended by Dr [W] (“the husband’s therapist”).

   16.      The wife continue therapy with Dr [R].

   18.The Independent Children's Lawyer provide a copy of Dr [W]’s report dated 1 November 2007 to Dr [R], [Mr C], [M]’s counsellor and the husband’s therapist.”

7. The Court noted that Order 6 made on 5 September 2007 continues in force.

8. Supervision in accordance with paragraph 3 unless the parties or the Independent Children's Lawyer agree to the contrary, is to be undertaken by a supervisor employed by the husband.

9. Prior to any occasion of the children spending time with the wife the person retained to undertake supervision must have spoken to the Independent Children's Lawyer in relation to the issues in respect of which supervision is required.

10. Pursuant to s.65DA(2) and s.62B, 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 Cryall & Peterman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5885 of 2007

MS CRYALL  

Applicant

And

MR PETERMAN  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to three children: D, M and T.  They are 12, 9 and 6. Their parents, wife and husband, are 48 and 43 years of age respectively.  They started to live together in 1990, married in October 1993 and separated in April of this year.  The husband is a professional and the wife has been out of the paid workforce for a significant period. 

2. The proceedings were started by the wife.  In his response the husband sought that the children live with him and spend time with the wife for periods deemed appropriate, and highlighted that he might need to amend his application.

3. The matter came before me in September and I made some orders.  There was then an order made that the children be represented.  I made some orders that made different arrangements for the older children from the arrangement for T. The older children would live with the husband in a cycle - in week one they were to live with the husband until after school on the Thursday - that was to commence on the 6th - and then they would live with the wife until the beginning of school the following Monday.  Throughout that week the child, T, lived with the wife.  In the second week T was to be with the wife until after school on Thursday when she, together with the older children, lived with the husband until the next Monday.

4. Further orders made on 5 September were that the parties be restrained from consuming illegal drugs and alcohol, during any period when the children were in their care or for six hours prior to any such period; denigrating or criticising each other to or in the presence of the children and, to the best of their ability, were restrained from permitting any other person to do that; from discussing the proceedings in the presence or hearing of the children or permitting anybody else to do it; and bringing the matter back on 24 October.

5. That adjournment was in aide of a report that had been forwarded from a Dr W; and I think what happened was that report was not available, and a single expert's report was filed under cover of an affidavit of 1 November by Dr W, and the matter was, by arrangement, put over to today. 

6. The orders sought by the parties have changed.  The husband seeks that the children live with him, and with the wife every second Friday, Saturday and Sunday during the day, and every Thursday during the afternoon and on each occasion that time was to be supervised. The wife’s position is that until some issues about the report of Dr W can be clarified things should not change significantly; but in the event that the Court determines that the children should live in the primary care of the husband, then her preference in those circumstances would be that the children spend time with her each alternate weekend from after school on Thursday afternoon until the commencement of school Monday morning; and then she seeks some orders about Christmas time.

7. The orders sought by the husband include an application that he have exclusive occupation of the former matrimonial home at L.  That is not an application of which the wife had much notice and I indicated to the parties earlier that I would grant an adjournment of that aspect of the application to enable the wife to address it.

8. So the issue became, what was to happen in the meantime. There are two things to be done: the children's lawyer is going to speak to Dr W and see if she can flesh out what he thinks the arrangement should be for the children to spend time with the wife; and secondly for the wife to address this issue of occupation of the home. 

9. That then left, for today, what is going to happen in the medium term, and the parties have made some submissions and a decision needs to be made. The orders will be expressed until further order, but it might be of necessity that something will be said on the adjourned date that means that there should be some significant change to the pattern set.

10. That then elicited an amended proposal on behalf of the husband which is a sort of nesting arrangement whereby the parties would come and go from the former matrimonial home but the children would stay; and one can understand that.  That is not a proposal, which attracts itself to the wife, even though one can see the sense in it.  The question of occupation of the home still seems to me to be a matter of some significance and a matter that the wife is entitled to get some advice about and to put some material on. 

11. It is the husband's proposal that the parties swap houses.  He has bought another property at L which is a unit, and he is suggesting either on the basis of the nesting arrangement, if the wife would like, she could occupy that property when she was not in the former matrimonial home, or in the event that the exclusive occupancy is granted simpliciter, she could occupy that other property.

12. So I think those issues all need to be dealt with on another day.

13. The history of things was that the parties sought out Ms B, who is a very experienced psychologist. From soon after separation, I think, in April, through until August, they had her assistance in trying to work out some manageable arrangement.  Those efforts came to an end in August. 

14. The wife's view of things is that the husband refused to leave the former matrimonial home until there was some sort of agreement in place; that she agreed to something in June that was something less than ideal from her point of view. Then each of the parties, in great detail, gives evidence about difficulties they have had, difficulties the children have had, ever since.

15. It is an unusual case in that normally there is a breakdown of a relationship and that is the issue that goes to the Court and that is the issue that goes to the expert. It is clear from Dr W's report that there were significant problems between the parties before separation.  It is a very unusual report, in my experience.  It is a very long report, it is been prepared very quickly, Dr W is obviously very worried by the situation. The parties too have come to appreciate that there were significant problems and there is a job of work to be undertaken in terms of what is going to happen in the medium term.

16. There are real problems and the adversarial system has not achieved much except to highlight the problems that Dr W observed in the interaction between the children, between the parents and between the parents and the children. 

17. Dr W says that the wife was the primary caregiver and that her capacity to care for the children has been compromised and continues to be compromised.  He says that may be because of things that happened long ago; a process of a loss of self worth over the course of the parties' relationship; self-medication in relation to alcohol and drugs; leading to problems that cannot be simply resolved; and on the other hand, there is a husband, who has not been either physically or emotionally available to his children.

18. I would imagine Dr W's report came as something of a shock to the parties, perhaps as much as it did to anybody else. Dr W has made some recommendations.  The first thing to be said is that he might not be right.  We do not have a system whereby these decisions are made by somebody in his position.  His report will go forward to a hearing, it will be tested by the parties, including by cross-examination if they would like.  He can be asked questions in the meantime by the parties and by the children's lawyer about why he reached certain conclusions. 

19. His report is very much based on a series of unknowns about what the parties are going to do in the future.  In simple terms, he has real doubts that the wife is going to make any effort to address the things that she needs to address to improve the outcome for her children, if she is to spend unsupervised time with them.  He says that she is not likely to address those things because she does not acknowledge them. 

20. He says that the husband has no track record of being available in terms of time or in terms of emotions to his children; but at least, he says, in relation to the husband, he has more insight into the impact of what is happened on the children and has expressed the desire to change the physical arrangements.  Dr W comes to those proposals with some cynicism, obviously. How does reduce his commitment to what has been a very absorbing and very satisfying working life. There are instances raised in the material of opportunities that the husband has had to become more involved with the children. I think there was an occasion between jobs when he left one firm and joined another, referred to in the documents as "gardening leave”. Dr W concluded that resulted in no significant change in the availability of the husband to the children.

21. At the point of separation the parties were working towards an arrangement whereby they accepted that the wife would continue to be the primary caregiver to the children and were trying to work out how the children would spend time with the husband. Through the evidence-gathering exercise, through their experiences of what is happened since, and Dr W’s report they have come to accept that there is a bigger problem than that. 

22. It is not necessarily for me to belabour what has happened. I appreciate the sensitive approach of the advocates today. It would be easy for them, as the initial affidavits demonstrated, to simply criticise the parties. Dr W deals with capacity, he does not deal with motivation.  He does not say that the parties have set out to cause the circumstances that they have arrived at.  It is just that these are the circumstances.  So again I say, I appreciate the tone in which the matter was conducted today. There is an acceptance, I think, by everybody, that there is a job of work to be done.

23. I need to say that Dr W is very worried about D and M. He observed damage done to them during the course of his interventions.  He stopped some sessions at various points; he witnessed attacks involving the children and observed the children in real pain; and I do not need to recite the detail of those observations.  Suffice it to say he recommends that D continue with therapy that has been arranged by the parties for him and that a separate therapist be found for M. D’s therapist says it needs to be somebody different. Although no real pathology was observed in T, the least disturbed of the children, it is obvious that Dr W is very worried about the availability of the parents to meet her needs.

24. Dr W mentions on a number of occasions the parentification of the children.  That is what happens when the children become responsible for their parents' behaviour and feel responsibility for their parents rather than the other way around. That is a very worrying feature of the case. 

25. The recommendation that Dr W makes is that the husband's arrangements be put in place. I do not know whether Dr W knows of the husband’s amended proposals. They are not much different, I think, from the husband's application.  There is no detail from Dr W about what time and under what circumstances the wife will have with the children.  In the course of submissions there was a dialogue about proposals for supervision. The wife’s preferred position is that supervision is not necessary. However, a minute has been provided to me on her behalf in the event that her preferred position is not accepted, seeking that supervision be provided by somebody employed for that purpose.

26. The husband has named a number of people.  The wife thinks that not all of them have agreed to do the work.  She thinks some of them are not suitable, such as the husband's father; and she thinks that others will not agree.  In any event, to the extent that they are friends of hers, she thinks that it is not appropriate to involve them for various reasons in this supervision arrangement.

27. Thus there is an agreed position between the parties, if there has to be a supervisor, that it will be somebody retained by the husband. Dial an Angel or some similar agency has been mentioned. That is not ideal. It is going to be unusual for the children to have somebody there all the time when they are with their mother.  It will be very unusual for them to have a stranger there, but I do not think we have a choice. 

28. As I say, Dr W might not be right, but he is independent of the parties; he is qualified to draw conclusions; he recites things that happened during the course of his intervention with the parties, during the course of qualifying himself to give his opinion that are objectively concerning and entirely consistent with the conclusions that he is come to.

29. So in terms of my task in making an order that is in the best interests of the children, we are right back at the danger level.  The primary considerations set out in the legislation are that children spend appropriate time with their parents and that children be kept safe. They are the key issues here.

30. Going through the additional considerations: as to the wishes of the children -  it is agreed that to a significant extent, they express a wish to live with their mother or spend significant time with their mother.  In relation to that there is the question of parentification that I mentioned, and through the terrible affidavit narrative in the case there are countless occasions when the children have stepped in physically and metaphorically between the parents or between a parent and a child. Occasions when a child has tried to protect one parent from the other, or to protect one parent from the truth, or protect one parent from a situation.  At this stage their wishes about matters are compromised.  They are of an age where their views will start to be important, but they will not be determinative today. 

31. As to the nature of the relationship of the children with the parents, Dr W goes into some detail about that.  I think it is best summarised to say that the wife has been the primary carer of the children but there are aspects of her interaction with the children that provide a concern, that represent a danger to the children.  The best of the husband's relationship with the children is potential rather than actual.

32. As to the likely effect of changes in circumstances – the issue here is weighing the risks.  There is harm everywhere you look in this case.  There is not much doubt that the children are likely to miss their mother to some extent; and if the parties cannot manage things well, they are likely to feel some responsibility for her and her position.  For the time being they are going to be away from the home where they have lived for most of the time.  The wife needs to think about that, for the medium term. She needs to weigh up, I guess, whose needs are best met by the occupation of the home. I appreciate that is a dreadfully hard thing to do.

33. The changes I envisage will put the children back together more often. That is the joint proposal of the parties. There is no real practical difficulty and expense associated with the arrangements that are proposed. The capacity of the parents is in issue that is untested. Dr W flags it, expresses his concerns about it for the reasons that I have said.  It is the real issue in the case.

34. Any special characteristics about the children: D has been criticised by each of the parties and that seems to have had some impact on him. He has been criticised because he is overweight and he has been criticised in relation to his application to school work; and he has been the victim of a campaign, at times, by the older of his sisters, in relation to various matters. He is not an average 12‑year-old and has special needs.

35. Dr W observed a very cruel course of conduct by M in the course of his interviews.  He is quite worried about her.  That is why the recommendation in relation to her having some therapy.

1. T, is in Dr W's words the least disturbed of the children. She is six, and will have less natural capacity to process what she is seeing and what she has heard. She has seen and heard more than any child should ever have to see or hear.

2. As to the attitude to the children and the responsibilities of parenthood demonstrated by each of the child's parents: I think a fair reading of Dr W's report, without being patronising about it, goes to the question of capacity rather than motivation.  I think there is no reason to think - and Dr W does not say this - that either of the parties, when their own concerns are dealt with, wants anything other than the very best for their children.

3. As to family violence: there has been family violence. Dr W was satisfied with the account that D was punched in the stomach by his mother.  D, on one occasion, physically restrained his mother when the husband was trying to remove M from the house. I think that was around 13 August of this year. There has been family violence.  It appears that M fabricated a story that the wife had tried to choke her but there have been other occasions when the wife has struck her. So there has been, no doubt, family violence. 

4. The issue of making an order that avoids any further litigation does not arise today.

5. All of that, I think, commends the proposal that the husband's made.  In short order, the acute concern is that the wife has not been able to protect the children from her feelings and the situation in which she has found herself.  There is evidence suggestive of the fact that there has been a breach of the orders that I made on 5 September in relation to substance use.  The wife underwent urine analysis on a weekly basis, roughly, during September, and on each of the reports she provided - 10, 17 and 24 September - samples were taken and in each case cannabis was detected. The orders that I made were that the parties were restrained from consuming illegal drugs altogether.  It is said on behalf of the wife that I cannot be satisfied that that is not a background level or something from a time before the orders were made.  That may be technically true, but the wife obtained these reports.  If she wanted to make a case about background levels then she needed to make it.  There is a concern about that.

6. Dr W was satisfied that the wife underestimated and was in denial in relation to her consumption of alcohol.  The husband has taken to emptying or looking in the recycling bin at the wife's house on regular occasions and found evidence of the consumption of alcohol.  He says the children have spoken to him about the wife consuming alcohol during periods since the orders.  There is a police report from prior to the last orders, suggesting that a policeman observed behaviour in the wife that was inconsistent with what she said has been her practice of consuming only one or two glasses of wine. It is likely, as Dr W says, that the wife understates and is not careful about her consumption of alcohol.

7. The other thing I want to say is that it is quite proper and very important, and it is really what Dr W is saying to the parties in this report, that the parties get themselves well.  The parties have a huge task to undertake and it will be in their children's best interests if they focus on their own wellbeing.  This is the problem with litigation, of course.  It encourages you to say, "Well, there is not really a problem," or, "The problem has been resolved," or whatever, and, "I am looking better than the other person."  It is quite the reverse here, that is what Dr W has said.  Dr W is looking for the parent who steps up; looking for the parent who says, "Yes, I have some problems and I am going to take some steps to do something about it."

8. These are young children.  You are going to be their parents forever, so you have got to worry about bigger things than the next few weeks or the next few years.  You have 21sts to worry about, you have graduations, you have grandchildren, you have weddings – I should probably put that in the other order - weddings then grandchildren.  You have a long time to go, and it will devastate the children if you do not address the current issues. They are already carrying around on their backs problems that Mum and Dad are having.  The greatest gift you can give to them, apart from any arrangement that you make about where they live, will be putting yourself in a position where you are well and able to provide the proper parenting relationship so that they can enjoy a relationship with you for 50 years, or 60 years, or whatever it is going to be.

9. I adjourn these proceedings to 26 November in the judicial duty list at 9.30 am.  I note that those proceedings will relate, in particular, to the living arrangements following that date: particular mention is made of arrangements over the Christmas school holidays; and the question of the occupation of the former matrimonial home, whether in terms of exclusive occupation or an arrangement where the children remain in that home and the parents come and go.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date:  13 February 2008