DANWELL & MARTENS

[2018] FCCA 2609

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANWELL & MARTENS [2018] FCCA 2609

Catchwords:
FAMILY LAW – Parenting – interim orders – whether the Father’s time with the eldest child should be increased – recommendations of the Family Consultant – views of the child – best interests of the child – arrangements for the children to attend upon a psychologist or child counsellor – interim orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(1), 60CC(2), 60CC(3)

Applicant: MS DANWELL

Respondent: MR MARTENS

File Number: MLC 12646 of 2016

Judgment of: Her Honour Judge C E Kirton QC

Hearing date: 11 September 2018

Date of Last Submission: 11 September 2018

Delivered at: Melbourne

Delivered on: 11 September 2018

REPRESENTATION

Solicitors for the Applicant: Knight Family Lawyers

Counsel for the Respondent: Mr Foo

Solicitors for the Respondent: Midson & Associates

Counsel for the Independent Children's Lawyer: Ms Brennan

Solicitors for the Independent Children's Lawyer: Robert Halliday and Associates

ORDERS

THE COURT ORDERS THAT:

1. The matter be listed for final hearing in the Federal Circuit Court of Australia on 22 August 2019 at 10.00 am, with an estimated hearing time of 2 days (“the Final Hearing”).

2. That all previous orders be discharged.

3. That the parents retain equal shared parental responsibility for the long term care, welfare and development of the children [X] born 2005 (“[X]”) and [Y] born 2012 (“[Y]”) and thereafter collectively known as “the Children”.

4. That [X] live with the Applicant during school terms:

   (a)Each alternate week from 12.00 pm on Sunday to the conclusion of school or 3:30 pm in the event of a non-school day on Wednesday; and

   (b)In the second alternate week to the above sub-paragraph from 12.00 pm on Sunday to the conclusion of school or 3:30 pm in the event of a non-school day on Tuesday.

5. That the parents forthwith authorise the children to attend on a psychologist or child counsellor as recommended by Dr L or such other counsellor or psychologist as they may agree should Dr L not be able to refer and failing agreement or referral, then as nominated by the Independent Children’s Lawyer and the parties follow all reasonable recommendations and directions of such counsellor or psychologist, including their attendance if necessary.

6. Pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report (“the Family Report”) to be given to the Court no less than 35 days before the hearing date.

7. The Family Report to deal with the following matters:

   (a)any views expressed by the children and any factors (such as the child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);

   (c)the likely effect on the children if the Court were to make Orders in terms of the Applicant’s/Respondent’s proposed orders; and

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

8. The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.

9. If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

10. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

11. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

12. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 21 days prior to the Final Hearing.

13. Upon the Family Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. Unless a party objects, in writing, within 14 days of the date of releasing the Family Report, copies of the Family Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

15. Unless otherwise ordered, no person shall release the Family Report, or provide access to the Family Report to any other person.

16. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

    (a)The applicant electronically file and serve any further affidavits to be relied upon by the Applicant at the Final Hearing not later than 21 days prior to the trial;

    (b)The Respondent electronically file and serve any further affidavits to be relied upon by the Respondent at the Final Hearing not later than 14 days prior to the trial;

    (c)The Independent Children’s Lawyer electronically file and serve any further affidavits to be relied upon by them at the Final Hearing not later than 7 days prior to the trial;

    AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless the party has first obtained leave of the court.

17. Not later than 4:00 pm two business days prior to the Final Hearing all parties electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:

    (a)a list of the material relied upon;

    (b)a brief chronology listing significant events;

    (c)a list of the significant factual issues requiring determination;

    (d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60CC factors);

    (e)a list of contentions relevant to the operation of s.65DAA;

    (f)a list of any other contentions relevant to the decision; and

    (g)the actual orders sought.

AND THE COURT ORDERS BY CONSENT:

1. That [Y] live with the Applicant during school terms:

   (a)Each alternate week from 12 noon on Sunday to the conclusion of school or 3:30 pm in the event of a non-school day on Thursday; and

   (b)In the second alternate week from 12.00 pm on Sunday to the conclusion of school or 3:30 pm in the event of a non-school day on Wednesday.

2. That the children live with the parties by agreement and in default of agreement as follows:

   (a)For half of each school holiday period including the Christmas school holidays at times to be agreed between the parties or in absence of agreement on a week about basis to commence at 5:00pm on the date that the school term ends and to conclude at 5:00pm on the day half way through the holidays. During the holidays the arrangements contained in paragraphs 4(a) and (b) and 18(a) and (b) herein will be suspended.

   (b)With the Respondent at all other times.

3. That notwithstanding the Orders above, the Applicant and Respondent shall each spend time with the children on each of the following special days:

   (a)For half of each child’s birthday or if the child’s birthday is on a school day for at least 3 hours after school at times to be agreed.

   (b)With the Respondent from 10.00 a.m. to 4.00 p.m. on his birthday or if his birthday is on a school day for at least 3 hours after school at times to be agreed.

   (c)With the Applicant from 10.00 a.m. to 4.00 p.m. on her birthday or if her birthday is on a school day for at least 3 hours after school at times to be agreed.

   (d)If the Respondent would not otherwise spend time with the child on Father’s Day, with the Respondent from 5:00 pm on the Saturday before Father’s Day to 5:00 pm Father’s Day or otherwise as agreed.

   (e)If the Applicant would not otherwise spend time with the child on Mother’s Day, with the Applicant on the Saturday before Father’s Day to 5:00 pm Father’s Day or otherwise as agreed.

   (f)For half of Christmas Day at times to be agreed or in the absence of agreement:-

   (i)In 2018 and each even year thereafter with the Applicant from 12.00 pm Christmas Eve until 3.00 pm Christmas Day and with the Respondent from 3.00 pm Christmas Day until 5.00pm Boxing day.

   (ii)In 2019 and each odd year thereafter with the Respondent from 12.00 pm Christmas Eve until 3.00 pm Christmas Day and with the Applicant from 3.00 pm Christmas Day until 5.00 pm Boxing Day.

4. That both parties be at liberty to communicate with the children via email, telephone, Skype or other electronic means at all reasonable times and should there be a disagreement as to reasonable communication, the Applicant shall have telephone contact or other electronic means with the children on Thursdays from 6:00 pm to 7:00 pm

5. That the parties utilize the ‘My Mob’ app to communicate in relation to the children’s day to day issues and communicate with each other using text for emergencies only in relation to the children.

6. That for the purposes of changeover, the changeovers shall occur at the children’s school or in the event of a non-school day, at the Applicant’s home with the Applicant’s partner to facilitate the changeover.

7. That each party shall upon receiving notification of any school or extra-curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the other party with details or a copy of the notification of such event and that each party may attend any such event that parents are normally invited to attend.

8. That if either the Applicant or Respondent receives notice of a party or other special event for the children which will take place while the children is/are with the other parent, he/she shall forthwith give the other party notice of such event.

9. That the parties agree that whichever party receives a copy of the children’s school report/s shall forthwith provide a copy/copies to the other party, or if the school is agreeable, direct the school to provide copies of such reports directly to the other party.

10. That should either party wish to take the children or any of them interstate for the purpose of a holiday or for other purposes, they shall provide no less than 21 days notice of same to the other party and that the other party shall not unreasonably withhold their consent.

11. That both parties authorize any treating medical practitioners or allied health professions in relation to children to provide information to the other party and should either party receive any medical information in relation to the children, they shall provide such information to the other party forthwith.

12. That the parties ensure that the children attend all school days unless the children are ill and a medical certificate is provided to the children’s school and the other parent who does not have care of the children during the relevant period.

13. That the parents authorise the children to continue seeing the school counsellor through [X]’s secondary school.

14. That the parties ensure as far as possible that the children are to sleep in their own beds.

15. That the parties do all things as necessary and attend upon Dr G or a psychiatrist nominated by the ICL for the purposes of a psychiatric assessment and that the parties will be responsible for their own share of the assessment.

16. That the parties undertake supervised drug testing and that:

    (a)The testing occur randomly (but no more than 2 times in any 4 week period) and within 24 hours of a request being made by the ICL; and

    (b)Results of the testing be provided to the parties and ICL.

17. That liberty be given to the Applicant to apply on short notice in the event that the children or either of them are not regularly attending school in the times the children are in the care of the Respondent.

18. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them shall pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth), that time being no later than 28 days prior to the Final Hearing.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

B.At the date on which a copy of the Family Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

C.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12646 of 2016

MS DANWELL

Applicant

and

MS MARTENS

Respondent

REASONS FOR JUDGMENT

Ex Tempore

Introduction

1. This matter was listed for a final hearing yesterday, Monday, 10 September 2018. 

2. On 7 September 2017 Judge Williams ordered that pursuant to s.62G(2) of the Family Law Act 1975 (Cth), the parties and the children [X] born 2005 and [Y] born 2012 (the Children) attend upon a Family Consultant nominated by the Regional Coordinator of the Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court not less than 35 days before the hearing date (Family Report). 

3. Unfortunately the Family Report was not completed until Thursday 6 September 2018 and could not be released to the parties until the following day, Friday 7 September 2018.  This was the last business day prior to the day when this matter was listed for final hearing on Monday 10 September 2018.  The preparation of the Family Report on 6 September 2018 and release the following day, one business day prior to the final hearing is significantly short of the 35 days prior to the final hearing contemplated by the orders made on 7 September 2017. 

4. Even more unfortunately the report writer could not be contacted by any of the parties on Monday 10 September 2018 to ascertain her availability to attend the hearing and give evidence. 

5. As a consequence, the final hearing in this matter which was listed for two days, has had to be adjourned.  The next available two day listing is August next year.

6. The parties have been able to agree substantially upon interim parenting orders save for two issues.  A Minute of Proposed Interim Consent Orders has been provided to the Court by Counsel for the Father (Minute of Proposed Orders). 

7. The only two issues that remain in dispute are: 

   a)The amount of time [X] (also known as [X]) is to spend with each parent in the interim during the school term; and

   b)The arrangements for the Children to attend upon any psychologist or child counsellor. 

8. It should be noted at this stage that the Minute of Proposed Orders provide that the Children spend half the school holiday periods with their parents equally.

Current Spend Time Orders

1. I turn to the current spend time orders.  The current orders in relation to both [X] and [Y] spending time with each of their parents during term time were made on 19 January 2017.  There are as follows:

   1. That the children [X] born 2005 and [Y] born 2012 (“the children”) live with the parents by agreement and in default of agreement as follows:

   (a)     With the mother:

   (i)In the week commencing Sunday 22 June 2017 and each alternate week thereafter from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Thursday; and

   (ii)In the week commencing Sunday 29 January 2017 and each alternate week thereafter from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Wednesday.

   (b)     With the father at all other times.

2. These orders have been operative now for some 18 months.  They are in effect an arrangement where the Children spend four/three nights a fortnight with their Mother, being a total of seven nights per fortnight. 

Proposed Interim Spend Time Orders

1. I now turn to the proposed interim spend time orders.  The Mother proposes that the orders remain as they are until the final hearing of this matter (that is four/three, being seven nights a fortnight). 

2. The Father in the Minute of Proposed Orders has proposed that during school term time for [X], the following spend time with the Mother: 

   Each week from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Tuesday.

   (Two nights)

3. This would result in [X] spending two nights a fortnight with his Mother, so that is four nights a fortnight. 

4. The Independent Children's Lawyer (ICL) proposes that the arrangements are changed to a three/two nights a fortnight spend time arrangement with the Mother during school terms.  That is five nights a fortnight. 

5. The proposal is as follows. 

   (a)Each alternate week from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Wednesday; and

   (Three nights)

   (b)In the alternate week from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Tuesday; and

   (Two nights)

6. The Counsel for the ICL contends that the Family Report provides evidence that there is a proper basis for changing the status quo.  It is submitted that there is a proper basis for increasing the time that [X] spends with his Father on an interim basis. 

7. This is especially the case as the parties are facing a 12 month adjournment of this proceeding. 

8. Counsel for the ICL submits that a small change is required on the basis of the following:

   ·[X] is presently aged 13.  He was described by the Family Consultant as polite and articulate (paragraph 58 Family Report).  Counsel for the ICL submitted that this indicates that [X] is able to articulate what he wants. 

   ·[Paragraph 60] [X] referred to the challenges in his relationship with his mother.  He described his mother’s random mood swings.  He said she can be “mean and angry and she overreacts”. 

   ·[Paragraph 69] [X] said if he had three wishes he would wish to be mainly with his father.  He also wished to be happy and for his father and brother to be happy.

   ·[Paragraph 81] The mother presented as a parent who appeared to have a number of challenges in her parenting role, particularly in her relationship with [X].  She claims to have played an active role as the primary caregiver to the children but this was contradicted by the father who claimed that the mother’s parenting role was compromised due to what he perceived were the mental health issues.  [X] did describe a stressful relationship with his mother, characterised by exposure to her anger.  The mother had not complied with drug screens and as such it is difficult to determine whether her behaviours have been compromised by illicit substance usage.  It is of paramount importance for the mother to seek support to rebuilt her relationship with [X]. 

   ·[Paragraph 85] [X] presented as a young person who is exhibiting indicators suggestive of emotional harm.  The reported depression, sadness and unhappiness of the negative impact of his exposure to the parental conflict.  His relationship with his mother appeared particularly volatile, as indicated by her absence in his family drawing. 

   ·[Recommendation] That consideration is given to [X] spending more time with his Father. 

1. I accept Counsel for the ICL’s submissions. For the interim on the basis the Family Report it is clear that [X] is very unhappy. 

2. I also agree with the solicitor for the Mother’s submission that in the absence of evidence from the report writer and cross-examination a more substantive change is not warranted. 

3. In my opinion, pursuant to s.60CA of the Family Law Act 1975 (Cth) (Act), it is in [X]’s best interest that I make the spend time order suggested by Counsel for the ICL:

   (a) Each alternate week from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Wednesday; and

   (Three nights)

   (b) In the alternate week from 12 noon on Sunday to the conclusion of school or 3.30 pm in the event of a non-school day on Tuesday.

   (Two nights) 

4. In considering what is in [X]’s best interests, I have had regard to s.60CC(1) of the Act and in particular s.60CC(2)(a), the primary considerations of the child having a meaningful relationship with both parents.

5. Given the apparent difficulties in the relationship between [X] and his Mother at the moment, it seems the best course to preserve and work upon the future relationship between the Mother and the son. 

6. I also take into account s.60CC(3)(a) any views expressed by the child. [X] has expressed a clear desire to the Family Consultant that he would like to spend more time with his Father.  The Family Consultant has assessed [X] as being articulate, mature and able to express his opinions. 

7. I have also taken into account s.60CC(3)(b)(i) the nature and relationship of the child with each of the child’s parents.  

8. I have also taken into account s.60CC(3)(m) any other fact or circumstance that the court thinks relevant.  I have taken into account the fact that this matter is to be adjourned for a period of about 12 months.  By the time judgment is delivered it will be over 12 months. Therefore interim orders need to be made that reflect the needs of the Children and the contents of the Family Report.

9. In relation to [X], I will make the orders proposed by the ICL as I have already set out.

Counselling

1. The other issue of dispute that has arisen between the parties is the arrangements for the Children to attend upon any psychologist or counsellor. 

2. Counsel for the Father has submitted that the Children attend upon a psychologist or counsellor as recommended by Dr L who has had some involvement with the Children in the past. 

3. The solicitor for the Mother has suggested that the ICL recommends a counsellor rather than the Children’s previous counsellor Dr L. 

4. Counsel for the ICL has proposed the following order:

   15. That the parents authorise the children to attend on a psychologist or child counsellor as recommended by Dr L or such other counsellor as they may agree should Dr L not be able to refer the parties and failing such agreement or referral, then as nominated by the Independent Children's Lawyer, and the parties shall follow all reasonable recommendations and directions of such counsellor or psychologist, including their attendance as necessary.

5. I propose to make this order.  In my opinion, it adopts a common sense approach.  Dr L has had some previous involvement with the Children and is likely to be well placed to make an appropriate referral. 

6. In the event that Dr L is not able to make a referral, the ICL will nominate a psychologist or child counsellor.  I will make those orders. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 14 September 2018