Danson and Danson - [2011] FMCAfam 1234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DANSON & DANSON

[2011] FMCAfam 1234

FAMILY LAW – Interim parenting – high conflict – Part 15 Expert’s Report from Dr G – parenting orders.

Family Law Act 1975, s.60CC(3)(c)
Federal Magistrates Court Regulations 2000

Goode & Goode (2006) FLC 93-286

Applicant:

MR DANSON

Respondent:

MS DANSON

File Number:

SYC 3088 of 2011

Judgment of:

Altobelli FM

Hearing date:

6 October 2011

Date of Last Submission:

6 October 2011

Delivered at:

Sydney

Delivered on:

6 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Lloyd

Solicitors for the Applicant:

Paul & Paul Lawyers

Counsel for the Respondent:

Mr Maurice

Solicitors for the Respondent:

Eleanor Murphy & Company

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parties have equal shared parental responsibility for the Children [X] born [in] 2005, [Y] born [in] 2006 and [Z] born [in] 2008.
Unless the parties otherwise agree, the Children live with the Father as follows:
(a)On 8 October 2011 from 9:00am until 09 October 2011 at 5:00pm;
(b)On13 October 2011 from 2:30pm until 5:00 p.m. on 14 October 2011;
(c)On 15 October 2011 from the 9:00am until 5:00 p.m. on 16 October 2011;
(d)On 20 October 2011 from 2:30 p.m. until 5:00pm on 21 October 2011.
Unless the parties otherwise agree, thereafter commencing on Friday 29 October 2011 that the Children live with the Father in a 2 weeks cycle as follows:
(a)(Week 1) from 4:30 p.m. on a Friday until 5:00pm on the following Sunday;
(b)(Week 2) from 4:30pm on each Thursday until 5:00pm each Friday.
Unless the parties otherwise agree, during school holidays in addition to the times referred to in the two weeks cycle set out in paragraph 3 above, unless otherwise specified, that the Children live with the Father:
(a)from Wednesday 14 December at 5:00pm. until Sunday 17 December at 5:00pm;
(b)from Thursday 29 December at 5:00pm until Monday 2 January at 5:00pm;
(c)from Tuesday 17 January at 9:00am. until Friday 20 January at 5:00pm
The Children otherwise live with their Mother, including from Friday 6 January 2012 at 5.00pm until 5.00pm Friday 13 January 2012.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the Children shall spend time with the Father as follows:
(a)At other times agreed between the parties in writing;
(b)From 9.00am to 5.00pm on Father’s Day;
(c)From 9.00am to 5.00pm on the Father’s birthday when it falls on a weekend or during the school holidays;
From after school to 7.00pm on the Father’s birthday when it falls on a school day;
(e)If the Children are otherwise living with the Mother, for no less than 4 hours on each of the Children’s birthday at times agreed between the parties or in default of agreement, between 3.00pm and 7.00pm;
(f)From 12 Noon Christmas Day until 6:00pm Boxing Day in years ending in even numbers and from 12 Noon Christmas Eve until 12:00pm on Christmas Day in years ending in odd numbers.
Notwithstanding anything else contained in these Orders and unless otherwise agreed between the parties in writing, the Children spend time with the Mother as follows:
(a)At other times agreed between the parties in writing;
(b)From 9.00am to 5.00pm on Mother’s Day;
(c)From 9.00am to 5.00pm on the Mother’s birthday when it falls on the weekend or during the school holidays;
(d)From after school to 7.00pm on the Mother’s birthday when it falls on a school day;
(e)If the children are otherwise living with the Father, for no less than 4 hours on each of the Children’s birthday, such times as agreed between the parties or in default of agreement, between 3.00pm and 7.00pm;
The Father do return the Children to the Mother’s nominee at the Mother’s home at the conclusion of each period of time.
During school holidays, that the Mother’s nominee deliver the Children to the Father’s home at the commencement of each period of time.
On Tuesdays during school terms in 2011/2012, that the Father collect the Children from school and preschool.
On Fridays during school terms in 2011, that the Mother’s nominee deliver the two younger Children to the Father’s home at 2:30pm and the Father do collect the Child [X] from school.
On Fridays during school terms in 2012, that the Mother’s nominee deliver the youngest Child to the Father’s home at 2:30pm and the Father do collect the two elder Children from school.
For the commencement of contact on forthcoming Saturdays, that the Mother’s nominee do deliver the Children to the Father’s home (on days when they do not have [extra curricular activity omitted]) at 9:00am. In the event that on a particular occasion the Mother’s nominee is not available she shall notify the Father who shall, if possible, arrange his own nominee to carry out the collection/delivery, provided the obligation shall remain with the Mother to deliver/collect the Children.
On Saturdays when the Children have [extra curricular activity omitted], the Mother’s nominee shall deliver the Children to the father at [location omitted] at 9:00am.
That notwithstanding any other order each parent may attend:
(a)Parent/Teacher meetings;
(b)School concerts and speech days;
(c)Pre-school parties;
(d)[extra curricular activity omitted] concerts; and
(e)[extra curricular activity omitted] concerts
provided that unless otherwise agreed the parent with whom the Children are not staying at the time shall not participate in or attend the Children’s other activities.
The parties forthwith arrange for the Child [X] to have psychotherapeutic treatment by a practitioner nominated by the Court expert and that they do each take part in such treatment in accordance with the requirements of that practitioner.
The Mother considers the benefits to her of undertaking psychotherapeutic treatment taking into account the matters raised in the report of Dr G dated 30 September 2011.
Each party shall take the Children to birthday parties, lessons, activities, concerts or competitions to which they would normally attend and/or have been invited, where these coincide with a period the Children are in their care.
Neither party may use corporal punishment on the Children.
Each party notify the other as soon as possible, and in any event, within 2 hours of any serious injury or illness suffered by the Children whilst with that party.
Each party notify the other, no more than 4 hours after any change to their address and/or landline and/or mobile number and/or their email address.
Each party notify the other of the address and telephone numbers of the place/s where the Children will be staying during holiday periods spent away from their residence no later than 24 hours prior to the commencement of any such holiday.
The Father use his best endeavours to make a [musical instrument omitted] available for the Children when they are in his care.

THE COURT FURTHER ORDERS THAT:

The matter be adjourned to 22 August 2011 at 10:00am for a three day Final Hearing.
The parties file and serve any further material on which they seek to rely no later than 1 August 2011.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.
No later than three (3) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
Leave be granted to the parties to file a Minute of Order in Chambers ordering an updated Pt 15 Expert’s Report, provided that this is not done within the next six months.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 3088 of 2011

MR DANSON

Applicant

And

MS DANSON

Respondent

REASONS FOR JUDGMENT

I provide the following ex tempore reasons in the matter of Danson. This case is about three children – [X], who is nearly six years old, [Y] who is nearly five years old and [Z] who is three years old. The applicant is the father, he is 37. The respondent is the mother, she is 40. The parents married in 2001 and separated in 2011. This case is about how much time the children should spend with their father and under what circumstances. By any reasonable interpretation and analysis of the evidence before me based on its history this is, regrettably for the children, a case where the parents are locked in high conflict, where there is low, if indeed any, communication between them and where there is probably no trust between them. Regrettably for [X], [Y] and [Z], they are caught in the metaphorical cross‑fire of their mother and father’s conflict.
The matter has a history before me going back to May this year when the matter first came before me. I made interim orders that provided for the children to spend time with their father each Saturday from 8:00am until 3:00pm. This was in circumstances where the father had been spending quite limited time with them since the separation. I also made orders restraining the parents from denigrating each other or discussing the proceedings. The matter then came back before me on 28 June when some consent orders were entered into providing for various injunctions and also appointing Dr G as a Part 15 Expert. The matter again came before me on 15 August and some consent orders were made dealing with what was to happen at changeover. Indeed, another impression that can be formed by reading the evidence in this case is that the high conflict between the parents seems to boil over at the time that the children go from one parent to the other.
The matter comes before me for interim hearing today with the benefit of a Part 15 Expert’s Report that’s been prepared by Dr G. The competing proposals are contained in the minutes of order that have been provided by the representatives for both the father and the mother and I will simply incorporate the terms of those orders into these reasons. There is some agreement in the sense that the mother agrees to some of the orders sought by the father and the father agrees to some of the orders sought by the mother but suffice it to say that there is not agreement about the key issue and that is how much time and under what circumstances the children spend time with their father. Looking at the orders sought by both parents, there is an element in which they appeared not to have taken on board the recommendations contained in Dr G’s report. Regrettably, the adversarial nature of proceedings in this court, even with Division 12A, sometimes encourages parents to seek to be opportunistic and to maximise gain for themselves and perhaps ignore the objective evidence that suggests that other courses of action are better from the perspective of their children.
The evidence before me was quite extensive and has been accumulated during the course of these proceedings. I will simply incorporate into these, my ex tempore reasons, a list of the various affidavits that have been filed by the father and also by the mother and her respective witnesses. In addition, of course, I have the evidence of Dr G to which I will make reference in due course.
The applicable law is, of course, contained in part VII of the Family Law Act and the Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some context within which the relevant provisions are to be implemented.
This is a case where the evidence of the mother and the father conflicts, perhaps unsurprisingly, given my impressions of the nature of their relationship at the moment. In this context, I think the court is naturally drawn towards the evidence of a Part 15 Expert, such as Dr G. Of course, some criticism has been made of Dr G’s report, and again, I will deal with these in due course. Dr G’s report is dated 30 September 2011. Her recommendations are contained at paragraphs 54 onwards of her report. She suggests that the children should be spending extra time with their father and she recommends that in week 1 it be from Saturday 9:00am to Saturday 5:00pm for two weekends and then increase to Friday 4:30 pm to Sunday 5:00pm. In the second week, she proposes that it be 4:30 Thursday to 4:30 Friday. She makes recommendations about birthdays, special occasions, school holidays. She recommends that [X] have the benefit of individual psychotherapy and that the mother would also be assisted by psychotherapy. Her recommendations make it quite clear that it is an interim report. She suggests that the matter be reviewed in six months time. I certainly think that that is in the best interests of the children and I propose to order an updated report a few months before the final hearing of this matter.
Dr G’s report is based not just on material that was provided to her but on a series of interviews. Indeed, a series of four interviews involving the children, and certainly it would be three with each of the parents. I make that observation because there was a challenge to the methodology of Dr G’s report. I simply make this observation to the parents and their representatives. There are not too many Expert’s Reports that we see in this court that are based on observations of children on four separate occasions. That is something that, in my opinion, significantly enhances the weight that should be given to Dr G’s recommendations. She observes that the children have been exposed to high conflict parenting and that there are serious problems at changeover with [X] becoming increasingly distressed at leaving her mother’s care. It would be fair to say that Dr G is critical of the mother in some respects. For example, at paragraph 10, she refers to elements of the mother’s non-cooperation with requests by the Part 15 Expert. In terms of [X], she records at paragraphs 12 to 20 the very negative comments about her father. In relation to [Y] and [Z], likewise, there are observations there. That should be apparent and what I trust is apparent to Mr and Mrs Danson is that [X], [Y] and [Z] are very much aware of the conflict between the two of you. Indeed, to read those paragraphs and not be moved and not be worried would cause the court great concern. The parents ought to read what the children are saying and think very carefully about their actions.
In relation to the mother at paragraphs 29 to 35, and especially paragraph 29, Dr G forms the view that the mother is preoccupied with her account of the father’s shortcomings, deficient parenting and seems to be unable to reflect on her own possible contribution to the situation that exists between them. There is no doubt that Dr G refers to the mother’s concerns about the father’s anger and, for example, appreciates that it is one basis for the mother having concerns about overnight time. Paragraphs 41 to 43 of the report, I must say, are quite interesting in the context of such a high conflict case and potentially important, because in the joint interview between Dr Danson and Ms Danson, there were some limited points of agreement.
From the children’s perspective, this does provide a glimmer of hope and does suggest that perhaps, in the fullness of time, there is a light at the end of the tunnel; there is the opportunity for them to get on with their lives with both their mother and father having put their conflict behind them.
Dr G’s evaluation is contained at paragraphs 45 to 53 of her report. Again, she emphasises to any who will listen that the children are very much aware of the parental conflict. [X] is insecure, distressed and has overly identified with the mother’s attitude about the father. She has rigid and fixed negative views. [Y] and [Z] are angry with the father but still appeared to need his presence. [X] suffers from separation anxiety and grief. I trust that the parents noted with alarm that which I noted, and that is Dr G’s observations that [X] is at risk of depression if she continues to be subjected to such high parental conflict and any pressure by either parent to align one way or another.
Dr G explained that [Y] is an emotionally intuitive child and picks up what I would describe as “negative vibes”, though it is interesting in the context of Mr Maurice’s criticism of Dr G’s report that Dr G was not saying that it was necessarily the case that [Y] was coached by her mother. Certainly, [Y] longs for her father. Dr G described [Z] as being a vulnerable and anxious child. On observation – and remember that there were several observations – Dr G concluded at paragraph 48 that the children are not afraid of their father, though there is possible separation anxiety from their mother.
Dr G believes that the children are accurately reading the mother’s state of mind, that is, her fear and sadness. Dr G explains at paragraph 49 that the mother is anxiously concerned for her children and perhaps has an idealised view of life. As she felt that the mother’s actions at interview were consistent with the intimidation that she says that she feels – that is at paragraph 50 – Dr G formed the impression that the mother is determined to have time with the children, that is, the father’s time with the children, on her own terms. Dr G believes that the mother’s anxiety is excessive and is linked to her sense of loss relating to the relationship. In relation to the father, Dr G believes the father is stressed and certainly frightened of losing his attachment to the children.
The mother is clearly the primary parent and should remain so, and this is the recommendation at paragraph 52. The emphasis seems to be on repairing the children’s disrupted attachment with their father, so the children need to spend significant and meaningful time with him, but of course this needs to take into account [Z] and [X]’s separation anxieties, and of course there should be an avoidance of long periods of absence from the mother. Dr G expresses serious concerns about what is happening at changeover and raises the need to consider the use of a third party to facilitate at changeovers.
Mr Maurice was critical of aspects of the report and urges the Court to adopt a cautious approach in relation to its implementation. He says that Dr G formed a view, indeed, a view adverse to the mother early on in the report and then simply sought to justify it in her later observations. I do not accept this criticism. It is an unfair characterisation of Dr G’s report. Just because a report is critical of some aspects relating to the mother, it does not mean that its conclusions have no basis. The real issue in the present context of interim proceedings is how I use the report.
Mr Maurice is critical of Dr G having made findings of fact as to the mother’s credit. In the absence of cross-examination, that is an unfair characterisation of what she said in her report. The real issue for me is that I cannot make findings about anybody’s credit in the present context. In any event, the most relevant observation of Dr G about the mother is that she is anxious. That is neither a credit finding, nor is it a criticism. It is entirely understandable in the context of this case. It is an impression that I believe I am entitled to form based on the totality of the evidence before me, including Dr G’s report.
I make no findings about whether the mother’s behaviour was intrusive or not. I make no findings about the mother’s credit. I have formed a strong impression that the mother is anxious, and again I wish to emphasise that that is not a criticism, it is entirely understandable in the circumstances of this case. Moreover, even if Dr G’s reports could be characterised as forming an adverse view about the mother, which I reject, it doesn’t alter the fundamental gravamen of the report or its conclusions. Mr Maurice was critical of Dr G’s methodology, for example, in ascertaining the children’s views. Dr G can explain herself in cross-examination. My decision is uninfluenced by the children’s views. I cannot in any event discern how the children’s views in any way influence Dr G’s recommendations.

Dr G is an independent expert. I accept her recommendations and intend, subject to my discussion of the section 60CC considerations, to make orders that will be framed within the parameters of her recommendations. The real challenge the Court faces is making orders for changeover that protect these children from their parents’ unmanageable conflict. I have reluctantly come to the conclusion the changeover needs to be at a supervised contact centre whenever that service is available and otherwise in a public place or facilitated by third parties at other times.
I ask the parents to reflect on this. They are in a narrow category of case where the Court is so concerned about the welfare of children at changeover that the parents need to be physically separated. These children will be using a facility that is routinely used in cases where there is extreme family violence, where there is abuse, where there is neglect, where there are drug, alcohol or mental health issues, or where there is unmanageable conflict between the parents. The parents need to reflect on this. Perhaps with reflection, there will become a determination to change the circumstances that has necessitated the making of such an order.
I am satisfied on the evidence before me that there are no issues about the benefit to the children of having a meaningful relationship or the need to protect them from harm. I do not think there are any issues about protecting the children from any form of harm other than from exposure to their parents’ conflict. In reality, even the mother’s proposal would probably address, at least in a minimalist way, the requirement for a meaningful relationship. I am more than satisfied that Dr G’s recommendations address that.
There are no issues about the children’s views. They are, in my opinion, too young to have any weight attributed to their views. In any event these children are, as I described before, in a metaphorical way, caught in the crossfire of their parents’ conflict. The Court would be very wary indeed about giving any weight to their views. The children, based on Dr G’s observations, have a good relationship with their mother, who is their primary attachment figure, but also with their father. The nature of their relationship with him has clearly been affected by the separation, but Dr G’s recommendations provide a pathway for those relationships to be repaired.
Paragraph (c) of section 60CC(3) requires me to consider the willingness and ability of each of the parents’ children to facilitate and encourage a close and continuing relationship. I am not going to make any findings about this. It is not appropriate at an interim level. I have sought to emphasise what I consider to be my belief: that this is a case where the mother is anxious. I do not at this stage have any evidence that would lead to a conclusion that the mother is deliberately seeking to undermine relationships. I think, in the context of this case, it is about anxiety, and one hopes that with time those anxieties will pass.
The orders that are proposed by the father and recommended by Dr G will bring about a change in the children’s circumstances, but on the evidence before me, I am satisfied that they will be able to sustain that. There are no issues of practical difficulty and expense other than, of course, having to manage the conflict. It may well be that the exact timing for changeover will need to be based on the availability of a service for the parents, but that is something that will have to be accommodated.
I am satisfied on the evidence before me that both parents have the capacity to provide for the children’s needs. I note the mother’s concerns about the father’s capacity. Dr G appears not to be too concerned. On the evidence before, I do not have any concerns about his capacity to meet their needs during the relatively short periods of time that they will be in his care.
Can I make this observation, Dr Danson. Mrs Danson has asked me to make an order that you be personally there for the children. I am not going to make that order. I think that it would be intrusive and unnecessary, but I do ask you to consider what I think would be the great value to your children of being there personally as much as you can during the period that Dr G describes as a relationship repair period. I think everybody recognises the difficulties inherent in the work that you do, but it just strikes me that the next period of time for the girls is going to be a very, very difficult one for them and they would benefit from having you there all of the time or as much of the time as you possibly can.
I think there are no issues at this stage about the maturity, sex and lifestyle of the parents or the children. There may be issues about parental attitudes, but they are matters for the final hearing. I am satisfied that there are no issues of family violence that would influence a decision. There is no reason on the facts of this case why the presumption of equal shared parental responsibility should not apply. I intend to make that order. I am, therefore, required to consider equal time and substantial and significant time. Equal time is not sought. In any event, it is not in the children’s best interests. The recommendations of Dr G in the father’s proposal, and even to a lesser extent perhaps even the mother’s proposal, provides for substantial and significant time one way or another.
The orders I intend to make will be to implement Dr G’s recommendations. There has not been time this morning to actually draft those orders. I will undertake to do that during the course of the day. I believe the father’s solicitor has already sent an electronic minute of that order. Whilst I settle the orders, I think the solicitors need to work or talk about the nearest most practical supervised contact centre. For what it is worth, I understand that there are no delays so far as supervised changeover is concerned, so I am hoping that that will not be a significant obstacle.
I am going to set this matter down for hearing in 2012, on 22 to 24 August. I am going to give leave to file a minute of order in relation to an updated Part 15 Expert’s Report, though that should not happen before six months from today’s date. There will be the usual directions in the order about the filing of case outlines, affidavits and whatnot. The plan is to prepare some orders that reflect Dr G’s report. There is some common ground in the minutes proposed by each of the mother and father. I will incorporate that, but I just have not had time to do that this morning.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 21 November 2011