Cryall and Peterman (No 3)

[2007] FamCA 1741

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN (NO. 3) [2007] FamCA 1741

FAMILY LAW – CHILDREN – Interim parenting orders – with whom children shall live – with whom children shall spend time.

Family Law Act 1975 (Cth)

APPLICANT: Ms Cryall

RESPONDENT: Mr Peterman

FILE NUMBER: SYC 5885 of 2007

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Meyer Pigdon, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

IT IS ORDERED PENDING FURTHER ORDER:

1. That the children live with the parties as follows:

   1.1In week1, [D] and [M] will live with the father until after school on Thursday, commencing 6 September 2007, when they, together with [T] will live with the mother until the beginning of school on Monday.

   1.2In week 1, [T] will live with the mother.

   1.3In week 2, [T] will live with the mother until after school on Thursday when she, together with [D] and [M] will live with the father until the beginning of school on Monday.

   1.4In week 2, [D] and [M] will live with the father.

2. That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [D] born … 1995, [M] born … 1998 and [T] born … 2001 and to facilitate such appointment the parties do forward all relevant documents filed in this matter to the Legal Services Commission of NSW as soon as possible.

3. That within 24 hours the solicitor for the father notify the Legal Services Commission of New South Wales of this order.

4. That each of the parties do all such things as may be necessary to facilitate the children’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

5. That the parties and the Independent Children’s Lawyer have leave to approach my  Associate in Chambers in relation to any order they may seek by agreement  for the appointment of a Chapter 15 Court Expert.

6. That pending further order the parties be restrained and an injunction is hereby granted restraining each of them from:

   6.1consuming  illegal drugs;

   6.2consuming alcohol during any period when any of the children are in their care or within six hours prior to any such period;

   6.3denigrating or criticising each other to or in the presence of the children and to the best of their ability, permitting any other person to do so;

   6.4discussing these proceedings in the presence or hearing of the children or permitting any other person to do so.

7. That further consideration of this matter be adjourned to the Judicial Duty List at 9.30 am 24 October 2007.

THE COURT NOTES:

1. It is the intention of the Court that the children’s living arrangements made pursuant to these orders will be revisited on the adjourned date.

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, 12, nine and six.  Their parents, wife and husband, are 48 and 43.  They decided to live together in 1990; married in 1993.  Separated, I think, under one roof in April of this year and then in June physical separation occurred with the husband moving out to a unit close by.  The child D is in year 6 at the Y campus of N School, M is in Year 3 and T at kindergarten at V School.

2. The litigation was started after the parties have made a valiant effort to try and resolve things for themselves.  They had the assistance of Ms B, a respected psychologist, to assist them in relation to parenting arrangements.  I think they had something like three appointments over three months, and I understand that it is accepted by them and by Ms B that that counselling has come to an end.  That prompted then proceedings in this Court.  When the parties came before me yesterday they had not seen a family consultant at the Court and I ordered counselling. When an opportunity arose today for the parties to have counselling before the matter was mentioned again, I took it and I appreciate the parties’ co-operation in making arrangements.

3. The critical aspect of that is not that the parties might have reached an agreement but it means that unlike Ms B's intervention there is some conversation with the Court about recommendations for the future. The family consultant is able and required to give an indication of whether there is any urgency, whether there is to be a notification of abuse, whether further mediation should happen before a judicial decision, whether judicial decision is essential, whether there should be an expert's report and the expertise of the report writer, whether there should be an independent child lawyer appointed, whether the State Welfare Authority should intervene, whether there is need for a judicial officer to manage the case. Those issues have been addressed today.

4. The fact is today Ms K was told there was an agreement on an interim basis in relation to where the children live with whom and the circumstances of them spending time with the other parent and communicating with the other parent and a part of an agreement about specific issues.  That agreement did not survive a couple of floors of this building and a few minutes. That is not unusual.  We would want an agreement in the best interests of children to be able to survive a bit longer than that, so to the extent that inferences are made from the fact that there was an agreement for a short period, no harm is done.

5. Without demur, I am told what the agreement was and I know that that is likely to have been an agreement, at least not inconsistent with the professional opinion of Ms K who saw the parties.  And that is an important thing because, as I have said a couple of times today, the evidence of the parties suggests that the parents have been very much impaired in their parenting over the last year or so, perhaps a bit long.  Each of them says that the other has been very badly affected by alcohol and drugs.  Each of them says consistently, and there is some concession about this, that the other has initiated or continued vile conversations in the presence of the children.

6. It is agreed that there have been physical scuffles between the parents in the presence of the children and between a child and a parent.  The parties each say that the children have said to them things that suggest that the children are suffering psychologically.  There is an issue about D's health and fitness and there is an issue about, to some extent, the children's physical safety.

7. The way the Court deals with parenting cases now is called a less adversarial process. It is enshrined in legislation and it involves parents coming before a trial judge before they have prepared affidavits, which can themselves exacerbate the hostilities, making offensive comments and before they become entrenched in a dispute. It involves them coming before the trial judge with the counsellor they have seen on a couple of occasions, to sort out what issues are relevant and then to limit the evidence to admissible, relevant, probative material, just about those issues.  A case like this completely frustrates that exercise. 

8. Here we have hundreds of paragraphs wherein the parties record the sins of the other.  And Mr Lethbridge is right, in my view, the father's evidence is inconsistent with his application that the mother have unsupervised time with the children and I would say that the mother's evidence is inconsistent with the father having unsupervised time with the children.  It is possible the parties have exaggerated their concerns to some extent and in her very careful way Ms B has been able to see through all of that, seeing that the parties have exaggerated to some extent and has not been so worried about it that she would make a notification. That is possible but in my view, almost every paragraph puts a child in harms way; talks about a child taking on responsibility for his or her parents’ conflict; talks about children becoming aligned;  children running away or going through windows or putting themselves in physical danger because of the conflict.

9. It is also possible that the parties’ evidence is substantially correct and they have become inured to it, do not think that is such a problem. The children are no doubt exposed to compellable notifiers - their GP, their school counsellors. We will get any documents from the Department of Community Services we will see if there have been notifications. It might be that the Department, overworked as it is, has felt that other families needed more attention.

10. Even if the parties had come out of that counselling session today with the suggested agreement, I would have asked them to tell me how the concerns raised in these affidavits are addressed in their agreement. The aborted agreement does address some matters. There was an agreement that neither of them will consume illegal drugs and neither of them will consume alcohol when the children are present. But there is no mention of any restriction on what they say or how they behave in the presence of the children.

11. In the circumstances I am greatly tempted to do nothing because I cannot be confident that making an order at this stage is going to make the lives of the children any better. It may be better to wait until we have some assistance from an Independent Child Lawyer who has at least spoken to them and can get a flavour of their concerns, who has spoken to the school counsellors and we get just a little bit better look at it.

12. The argument that Mr Maurice makes is that unless some definite arrangements are put in place then there is a risk of further conflict arising from the fact of there being no clear arrangement and I accept that.  The problem is what to do. It is not much help taking a line from what the parties have arranged in the past because, it is their evidence that the arrangements have left the children in harms way.  It does concern me.  There is some objective evidence that the mother has said to others that she has a problem with alcohol.  There are records from a consultant psychologist, Dr R, PhD, that reflect things that must have come from sessions conducted by him and he talks about it in terms of phases, through January 2005 right up to date, July of this year, consistently raising the same issues which include reference to underlying psychological problems. From those records I take it that the wife’s use of alcohol and drugs continues to be a concern, if not to the wife, then certainly to the psychologist.

13. There is not a sign of any concession of that in the mother's material.  Quite the contrary.  I do not think I could find a paragraph where she says that at any point alcohol has been a matter of concern for her. She mentions alcohol and drugs in a few places but only to dismiss the concern:

    While I consume alcohol at home and have smoked marijuana at home, I have never used Cocaine or Ecstasy.

    That is paragraph 172:

    I do consume alcohol -

    Paragraph 195:

    but not at the level that [the father] has tried to allege.  I will drink a glass of wine while preparing dinner and have another glass. 

14. There is something wrong with that because it does not account for her conversations with Dr R.  Unlike what he told her, there is no mention of her taking active steps to reduce her alcohol, I do not think, in the affidavit.  It is trite to say if she does not think there is a problem then she must have no intention of dealing with it.  She does say that the same complaints apply to the husband.  She says that he has been blind drunk on various occasions.  She has been concerned about him drinking and driving.  She says that he has consumed illegal drugs and been out of it as a result of that.  And she even said that they had a pact about not consuming a certain amount of alcohol.  Why, would there have been such a pact when she makes no concession it was ever a problem. 

15. Parenting is a high functioning activity.  These are intelligent, sophisticated children and they can be quite demanding.  The parties set out examples of very challenging behaviour by the children.  The mother says at paragraph 108:

    Meanwhile, [the father] was climbing through [T's] bedroom window and jumped down, at which point [D], at 12 years of age, grabbed me and pulled my arms behind my back so I could not stop [the father] from getting [M] out the window.

16. These are not unremarkable things.  There are children in our community who do not have any of this happening to them.  I do not understand why your children are not entitled to avoid such events. As I said, even if the parties had agreed about arrangements today, I need to be satisfied that the arrangements address the concerns raised by the evidence.

17. Each of the parties have made arrangements for the children to move between the households and that has a very crude advantage in that it means that if there are problems in one household, it is not long before the children are in the other household and can report those concerns to someone. There are allegations in relation to things both the parties have said, and they both agree with some of the complaints.  The father says that he wanted the mother to give him a lift somewhere and he said in the presence of the children:

    You fucking bitch.

18. So I can see the attraction of keeping the children moving. I am going to make the orders that are proposed by the father. There is some evidence that the parties recognise the alignments that have been established.  The weakness of continuing arrangements in recognition of those alignments is that if, for example the alienation between the older children and the mother is based on the mother’s behaviour then why on earth would not the younger child be protected from her.  I suppose an argument is available that it is only when challenging behaviour arises, more likely from an older child, that her parenting capacity is compromised. 

19. I think the main benefit of the proposed arrangement is that it is certain.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  19 October 2007