DAWSON & WRIGHT
[2018] FamCA 266
•27 April 2018
FAMILY COURT OF AUSTRALIA
| DAWSON & WRIGHT | [2018] FamCA 266 |
| FAMILY LAW – PARENTING – interim orders – where the trial has been adjourned to enable a number of matters to be attended to – where it is appropriate to make interim orders because there is no unacceptable risk of harm to the children and no plausible explanation as to why the children are behaving the way they are as observed by a supervisor and by the family consultant – where it is appropriate and in the best interests of the children to make the orders. |
| Family Law Act 1975 (Cth) |
| Neil v Nott [1994] HCA 23 |
| APPLICANT: | Ms Dawson |
| RESPONDENT: | Mr Wright |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 6838 | of | 2014 |
| DATE DELIVERED: | 27 April 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20, 23, 24 April; |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Devine |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | White Cleland |
Orders
That all outstanding applications for parenting orders are adjourned part-heard to 17 September 2018 at 10.00am.
That paragraph 5 of the orders made by the Honourable Justice Johns on 28 June 2017 is discharged.
That paragraphs 7-8 of the said orders are discharged.
That until further order, the children C (born … 2004) and D (born … 2008) are to spend time with the father from the conclusion of school on the Friday until the commencement of school on the following Monday morning commencing on Friday 27 April 2018 for three consecutive weekends out of each four weekends.
That paragraph [4] of this order is suspended during all school holiday periods and shall resume as if not interrupted when the new school terms start.
That the father spend time with the children from the conclusion of the last day of their school term (and he shall collect them from the school) until 6.00pm on the middle Sunday of the school holidays (whereupon he shall return them to the residence of the mother.
That all parties (including the Independent Children’s Lawyer) shall have liberty to apply on short notice by application supported by affidavit in respect of these orders.
That the reasons for these orders be published as soon as practicable.
That 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.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawson & Wright has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6838 of 2014
| Ms Dawson |
Applicant
And
| Mr Wright |
Respondent
REASONS FOR JUDGMENT
On 24 April 2018, I adjourned the final parenting hearing between Ms Dawson (“the wife”) and Dr Wright (“the husband”) until later in 2018. The hearing was in its third day. For the reasons that follow, I made interim parenting orders at that time. The success of those orders may influence the ultimate outcome.
The adjournment
The adjournment arose out of a number of circumstances. The wife sought (and was granted leave) to issue subpoenae to two doctors to give viva voce evidence. Whilst one had provided an affidavit, it remained unclear what each would say having regard to what ultimately became the issues in dispute. Leave was granted on the first day but the wife told the court on the second day that her witnesses needed 12 days notice because they were busy medical practitioners. Having regard to the extent of this litigation which has included at least one directions hearing under which an order was made under s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) and the relevance of that order was explained and discussed, I do not accept the explanation of the unavailability of the doctors.
Another reason necessitating the adjournment was that some of the first day was spent ruling on the admissibility of evidence. Both parents appear in person and that situation required that they be informed about the process. That too should not have been complicated because at an earlier hearing, I discussed their then filed affidavit material and each sought to rectify what they perceived as shortcomings. That exercise was largely unsuccessful and time was therefore wasted.
The wife is the applicant. She initially wanted (and I consider she still wants) to present a case that the husband was a violent man and that there was one act of improper conduct that would have indicated he had been deemed inappropriate with the parties’ daughter. On the face of the wife’s material, an inference could be drawn that she was alleging that this conduct was sexually inappropriate. The allegation seemed to be that the husband had appeared before the child naked and with an erect penis. That evidence was, at best, unclear and at worst, confusing. I deal with that issue further below but suffice to say that the husband and his corroborating witness denied that it had ever occurred and the wife was entirely reliant upon what her daughter told her. But the subsequent evidence in cross-examination provided by the wife would indicate that there is uncertainty in her own mind. That is a matter that will be dealt with ultimately on the final hearing and determination because it is the husband’s case that the wife has deliberately endeavoured to destroy his relationship with the two children of this marriage.
Another reason why the matter could not be concluded within the time allocated related to the wife’s allegation of family violence. The doctors she relies upon apparently are said to corroborate that family violence. Whilst family violence is a scourge and the court is obliged to consider it in relation to determining both the protection of children and the best interests’ principles, the party asserting the facts has to show the connection with the orders sought. The wife has not done so to date at least in her affidavit and case outline. In this case, there have been 13 court hearings many of which related to contraventions by the wife of court orders. As the records considered on the first day of the hearing showed, most of those hearings resulted in consent orders including the resumption of the husband’s suspended time with the children. That wold normally indicates no concern about protection of children or problems in the relationship.
The need to clarify what evidence the wife relied upon here was important because on the one hand, she alleged family violence incidents that went back prior to separation but on the other, there were the consent orders. She explained these consents as having arisen because she was told by her various lawyers she could not succeed and the court would not do anything about the allegations.
Ultimately, time ran out because of my own commitments and the need to hear another litigant’s case which had been well-prepared and previously not reached before an interstate judge.
The most significant reason for the adjournment was that whatever the evidence, and whatever findings were to be made, the husband had not seen the children unsupervised for about 18 months and (as I will find), in the meantime, a number of unsatisfactory “supervised” visits with a “professional supervisor” had occurred. None of the evidence provided by the parties could assist in determining why the children were reacting to the husband as they were. That would have made the determination of best interests on a final basis difficult. Having heard the cross-examination of both parties, there seemed no reason why a trial period of time should not occur. That too, necessitated an adjournment.
The approach of the parties
The potted history set out does not do justice to these children. The parties’ relationship is bitter yet the wife’s refrain indicated that it should not be like that and the parties should try to get along together. That was a forlorn hope from the husband’s perspective as he observed in saying that the behaviour of the children had been orchestrated by the wife. During the hearing, I described the children’s behaviour towards him as “rude”. I could not think of a better description.
At the time of the adjournment, the wife’s evidence and her cross-examination was completed. In the final judgment, I shall make findings about credit which I do not need to do now. Suffice to say, the wife’s cross-examination of the husband was targeted (if not at times misguided) but she was well organised such that it could be said that the cross-examination would be the envy of some lawyers. The wife’s approach in cross-examination must call into question her desire to work cooperatively with her husband. Her explanation for not having made an earlier approach to the husband was that it would get her into trouble with her superiors. The husband’s response was that he too would like to see a cooperative arrangement but it was not possible having regard to the stance that the wife had adopted over the course of the litigation including a number of breaches of the relevant parenting orders. The hearing is, as yet, incomplete and it is unnecessary for me to now deal with more than those facts to explain why the interim orders were appropriate.
I have also referred to the parties throughout these reasons as the husband and wife notwithstanding they have been long separated and divorced. I do so for my own convenience referring to their former status rather than their relationship.
Background
The two children are C aged almost 14 years and D aged nine years. They live with the wife. As indicated, the parties had been married. Both parents are public servants. The husband has remarried. His new wife is a witness.
Of the 13 hearings in this court and the Federal Circuit Court it may be necessary to ultimately say something about whether the wife’s conduct leading to the issuing of contravention applications was appropriate and responsible parenting. It is sufficient to say here that these hearings arose out of cases predominantly involving the wife’s unilateral action to suspend the husband’s time with the children but they ultimately ended in consensual arrangements to resume his contact with the children. The one exception to that was in a Federal Circuit Court hearing where Judge Bender transferred the proceedings to this court and suspended the husband’s time in the interim. That suspension did not last long.
Intervention orders
It is also pertinent to observe in relation to s 60CC of the Act that on two occasion’s intervention order applications were brought against the wife by police naming the husband as the protected person. In the first, she gave an undertaking to a magistrate without admission as to the facts. In the second, both parties gave those undertakings but the application that brought the case before the magistrate had been issued by a senior police officer against the wife and, according to the evidence of the husband, largely unchallenged by the wife, the magistrate suggested both sign undertakings “without admission” as a compromise. The relevant undertakings are in evidence but I will be more focussed in final judgment about why the litigation seeking those orders occurred at all. It will be necessary to determine the respective attitudes of the parties to the parenting of their children. That issue does not affect an interim order here.
There are intervention orders against the husband and indeed, on one occasion, he was arrested and interviewed by the police presumably to investigate a prosecution of an assault relating to his daughter but the police chose not to proceed with that. It is unclear to me why there are intervention orders against the husband at all based upon the evidence that I have heard so far.
In respect of the two occasions under which the wife gave the undertakings, she now observes that there are no intervention orders against her. I am not particularly interested in whether there are orders but the circumstances that gave rise to them and the undertakings will therefore become relevant.
The husband’s view of the children
Along this litigious pathway, according to the husband’s evidence, whenever he had the children, they loved, happy and each enjoyed the other’s company. The wife has a different view but just exactly what it is, remains confusing because of what she says and what she writes.
The wife alleges that the husband injured D in February 2017 when he was said to have dragged the child across artificial turf and some rocks. Not only is that allegation denied by the husband but his corroborating witness supports his evidence that the incident did not happen at all. That brings in the medical evidence and what D told a doctor a day or so later but it also gives rise to an assertion by the husband that one of the options that could be found by the court is that the wife deliberately hurt her own daughter to give rise to the injuries. As I have not heard all of the evidence, I am not in a positon at the moment to make any such findings.
The events leading up to February 2017, when viewed in the context of the relationship between the husband and the children at that time, were innocuous. The husband’s time with the children stopped after the incident and the police became involved. The necessity to make findings about that will be the subject of the final determination.
The sexual abuse allegation
It is also unnecessary for me to make any significant finding at the moment about the allegation concerning the husband’s conduct and inappropriate to do so, because he has only been cross-examined by the wife and not by counsel for the Independent Children’s Lawyer.
It would seem on what the Independent Children’s Lawyer says, nothing of any impropriety is alleged by her.
The litigation after February 2017
With the wife stopping the husband’s contact with the children, the matter came on for hearing in the Federal Circuit Court and was transferred here. For reasons that remain unclear but do not need to be canvassed, Judge Bender suspended the husband’s time.
In June 2017, the transferred proceedings came before Justice Johns (to whom the wife refers inappropriately as a registrar. I say inappropriately having regard to her profession). Her Honour determined that the husband’s time with the children should resume but as a precaution, under supervision. In making that determination, her Honour said:
[6]The father denies those allegations. He says that the issues between the parents arise as a result of the mother’s conduct. He says that the mother has influenced and coached the children and, as a result, has caused them to be aligned with the mother and alienated from him. The mother denies those allegations and so it is that the matter finds its way to this Court and in this list.
Importantly, her Honour noted the parties’ positions:
[9]The issue that has emerged which requires determination by me is the question as to what, if any, time the father should be spending with the children pending the preparation of the report and the ability of this Court to hear and determine the parties’ competing parenting applications, it now being the position that each party seeks orders that the children live with them, and in the case of the mother, that they spend no time with the father, in the case of the father, that they spend supervised time with the mother. (My emphasis).
The background to the hearing before her Honour was noted:
[11]What is sought by the father is that there be some reintroduction of his time with the children. As a result of the allegations as to his conduct made in February 2017, that is, the sexually inappropriate conduct alleged to have occurred between he and D, as well as allegations of physical abuse, orders were made in March 2017, the effect of which was to suspend his time with both children.
[12]Up until that point, he had been spending alternate weekend times with the children as well as half holidays. What is sought by the Independent Children’s Lawyer is that the father resume spending time with the children, albeit on a supervised basis, that time to occur on alternate weekends with the assistance of a professional supervisor. It will be limited to daytime time only and, given the nature of the availability of supervision services, will likely be a period of a few hours once every alternate weekend. The mother opposes the resumption of that time.
…
[18]Both parties sought to highlight the same events, and both sought to press their views as to the faults of the other parent. Each alleged the other was a narcissist. Each said that they would pursue their applications to the end. Seemingly, their presentation demonstrated little focus on what might well be best for the children.
The Department of Human Services had been involved and her Honour noted:
[20]The Department communicated with the children’s counsellor and received information from both children’s counsellors as to their presentation and progress. Both children were observed by their counsellors to have made reports as to their concerns with respect to the father’s conduct towards them. Both children presented as expressing views that they did not wish to see their father at this time. The Department has also made contact with the children’s school.
Her Honour noted the Department thought there was a “likelihood” that the children had been influenced by the wife’s “attitudes” towards the husband. No “disclosures” were made by D. Her Honour considered sufficient sexual harm had not been substantiated.
Relevant to my earlier observations about the litigious nature of the background and in particular the allegations, her Honour noted that “nonetheless (the) orders have continued”. This was a reference to the fact that a number of allegations had been made by the wife in the past yet she continued to consent to orders when the matters were before courts. Her Honour therefore decided that supervision was appropriate. Her Honour concluded saying:
[29]However, having regard to the history of the children’s relationship with the father, their ages, the allegations made by each party, and particularly the allegations that the children might be subject to some influence in the mother’s household (and I note the mother’s denial of those allegations), and that that is a concern raised by the Department in its report, I am satisfied, at this point in time, that those views must not take precedence over the children having an opportunity of a meaningful relationship with the father. It is for those reasons that I consider that the orders as proposed by the Independent Children’s Lawyer are in the children’s best interests.
I have had the task of trying to sort out what has happened in this case. As was observed in Neil v Nott [1994] HCA 23, courts have to clarify the substance of submissions of litigants who do not have legal representation because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.
The husband’s cross-examination of the wife was limited leaving counsel for the Independent Children’s Lawyer to try to get to the bottom of the number of issues. On the other hand, the wife’s cross-examination of the husband was about issues of her complaints against his conduct towards her some of which may have relevance to the parenting issues but much did not seem to have any relevance. A more specific determination awaits the completion of the evidence and the parties’ submission. That said, I have had sufficient evidence to find that there is no unacceptable risk of harm to these children in the husband’s care.
The reasoning behind that interim finding is that the incident involving the husband and the erection, is not only denied by the husband whose evidence has been tested at least by the wife, but is corroborated by his new wife whose evidence is as yet untested. When asked about it, predominantly by me, the court was informed by the wife that she maintained she wanted the issue heard and determined but she did not believe the husband was doing anything wrong. According to the wife, it was just that he could not walk around the house without clothes on. That misses the point because the sexual connotation relates to the erection. The family consultant and the doctors may be able to explain how D came up with that concept. Nothing in the evidence of the husband or his new wife would suggest that what was described occurred nor, more importantly, was it put to the husband that nakedness was his modus operandi. There is much more to be considered about this particular incident and why the wife persists with it bearing in mind its timing and the fact that nothing was done about it for many months after it was said to have occurred is unclear. In my view, based upon what the wife now says, there can be no risk of harm to the children arising from that type of conduct as alleged.
In respect of the violence, the wife’s evidence is that quite some hours after D was returned home to her, a complaint was made against the husband of dragging her across some artificial grass and rocks as I have already described. That incident is not only denied by the husband but, it now transpires, he says that he had left his home with his son C to go to the drag races. D then went with his new wife to have her nails painted. The curious thing is that the allegation is specific to the husband. The wife’s cross-examination of the husband was along the lines that outside of his house there was artificial grass and gravel consistent with what D is said to have described. However, her cross-examination of him was limited. She asked him in a general way what happened and he gave a plausible explanation. How it was possible for D to receive those injuries is an entirely different matter but on the balance of probabilities, I consider that I can, at this stage, find there is no unacceptable risk (as distinct from any risk) of harm to the children from the husband.
I make each of the findings above on the basis of s 69ZR(1) of the Act for the purposes of enabling the parties to move on to something more important in the future.
The supervised visits
The supervised visits have been largely unsuccessful but an explanation for that included the very environment in which the contact occurred. One venue was an entertainment parlour and another, a bowling alley. The husband conceded he could not hear what was going on around him and the various statements of the children have to be interpreted from the notes of the supervisor whose evidence was simply somehow incorporated into the affidavit of the owner of the supervising business. The supervisor was a person described as Ms H. Without context as to what occurred, and no affidavit, her evidence must be seen as limited. I have the specific evidence of the husband who confirms that C sat with his earphones on and was rude. I have the evidence of the supervisor and the husband to the effect that D went to the toilet on one occasion, apparently contacted her mother who then came and collected her because of the presence of the paternal grandparents. The wife’s evidence about that particular incident is that she should have been consulted before the grandparents were invited but the husband’s retort was that he had undertaken the attendance of his parents with the knowledge of the Independent Children’s Lawyer and the supervisor without objection. The mother’s action certainly looks unilateral and inappropriate but I shall hear more submissions as this trial concludes.
It is the husband’s case that the children behaved poorly at these supervised visits and that was replicated in the family consultant’s interview which makes the wife’s evidence odd when she says that she would not accept that sort of behaviour including profane language from C as well as the frustrating rudeness to which I have referred. How the wife will overcome those matters is a subject that I want to review when I have the evidence of what has occurred over the ensuing weeks.
I have not heard the parties’ submissions or the evidence of the supervisor and I repeat that I am not particularly interested in what Ms J says but rather the person who was present.
In determining what should occur until the conclusion of the trial, I am heartened by the remarkable voluntary statement by the wife that if I made orders for the children to spend time with their father, they would do so. That is inconsistent with the picture portrayed in her outline of case document.
The outline of case document said that she wanted orders that the children and the parents attend family counselling “to support and facilitate the relationship between the children and the father and follow the counsellor’s directions and recommendations, with such counselling to support the children spending alternate weekends with the father on an unsupervised basis”. She then sought an order that:
[5]Pending the counsellor’s recommendation for unsupervised time between the children and the father, the children spend time with the father supervised by [J] Family Service (or any other supervised (sic) as agreed in writing), with some time to be between the children and the father only.
In endeavouring to explain why, in summary form, those orders should be made, the wife said the following:
· C is almost 14 years old and as such, his views must be given significant weight;
· C has expressed that he does not want to attend family therapy and was surprised that the mother had suggested this (indicating that the mother does not just simply accept C’s views);
· It is likely therefore that if C was forced to spend time with the father, or live with him as per the father’s application, he would (as he says to the family consultant) “sit in the corner and ignore him”. This situation is highly likely given the report from J Family Services where C spends most of the time ignoring the father and/or has his earphones in. C’s behaviour would likely impact on D, being the younger sibling who looks to her brother’s lead. This would be concerning if C carried out his threat to “run away”,
· Whilst C is currently very resistant to spending time with the father and that would be exacerbated should he be forced to live with him, he has still attended to supervised time and there has been some limited interaction with the father that has not been negative;
· The report from the J Service highlights that C is able to maintain his aloof nature with the father. Spending time with the father has not been enough to thaw and advance the relationship. It is therefore likely that family therapy is the only likely way that the relationship will have any chance of developing.
The outline went on to say that the children were unlikely to form a view that the father was able to provide for their needs without the benefit of family therapy. All of these conclusions do not sit comfortably with the wife’s position that the children will do what they are told. No plausible explanation is given as to why the children behaved the way they did at the supervised time save that there is some connection with the incidents that are alleged to have occurred in February 2017. The husband’s evidence, which is largely unchallenged by the wife, is that until February 2017, the children had a good relationship. The husband specifically reported that on the day in February 2017 when the alleged incident with D occurred, he and C had a great time at the drag races for the whole afternoon. He added that D and his wife had a great day together as well.
It is important to also observe that the wife concedes that she has done things wrong and involved the children in this conflict. While she accuses the husband of having done so, he denies it. The wife’s evidence is quite the opposite to that of the husband.
The outline to which I have referred was prepared for a residence dispute. It remains unclear what relationship the wife proposes if she was to retain the children in her care. As I have observed, the orders that she seeks are entirely dependent upon some therapist creating a relationship that in my view, is her responsibility.
The proposed interim orders
In contemplating what interim orders should be made, the Independent Children’s Lawyer was far more active than was the husband. He was initially content to accept two weekends out of four but that was on the basis that he thought that the mother needed time with the children. When he heard the Independent Children’s Lawyer’s position of three weekends out of four, he said that he could undertake that without any difficulty. Surprisingly, the wife’s position was that if interim orders were to be made, she would prefer alternate weekends for the very reason that the husband had initially indicated. However, in the light of her written position, it is hard to see how she will be able to get C to do any of the things that she asserts are barriers to any relationship between the husband and the children. That said, the husband’s proposal was that if he collected the children from school and returned them there including for holiday periods, there ought be no difficulty. He pointed to the fact that on the last occasion he collected D from school, she ran into his arms with joy. The involvement of the wife in the changeover is asserted by the husband to be the problem.
In the family report which is as yet untested (and the parties apparently want to do so) the family consultant understood the following:
[15](The mother) filed an amended application, filed 21 February 2018 proposes inter alia that the previous parenting orders to be set aside, the children to live with the mother, the mother to have sole parental responsibility and for the father’s time with the children to be suspended. The children to only spend supervised time with their father at their request and only in consultation with the children’s mother and their respective counsellors after the parents and the children participate in family therapy.
It will be apparent from what I have set out in relation to the mother’s outline of case that that is a different scenario to that portrayed in the outline of case and indeed how the mother seems to present her oral argument.
The family consultant’s description of the wife is also relevant. The family consultant said:
(The mother) 50 years, attended the registry with the two subject children and she spoke at length to [D] prior to her being signed in the play room. She presented as forceful at assessment and she was overly inclusive of extraneous information and appeared to respond defensively when clarification of issues was sought. She persistently sought to denigrate (the husband) throughout the assessment, requiring assistance to refocus from an adult perspective to the children’s needs, as she repeatedly returned to the impact on her personally.
It remains to be seen as to whether or not the description just given is apt. I can only make that finding after the family consultant is cross-examined. However, the very nature of the wife’s application here focuses on the conflict between she and the husband rather than on his relationship with the children save for the issues that are contentious as described earlier.
Importantly, the family consultant said:
[25](The wife) was clear that she did not intend to facilitate time with the children and their father should her application be successful, having the view that this would place the children at intolerable levels of risk. She denied all allegations of coaching the children and advised that there had been no evidence of this and that she was supported in this by the children’s counsellor. She advised that she was not in agreement with the DHHS material which had substantiated harm to the children in 2016 and that she had coached [C] to make allegations about his father. She reported that the children would have no stability if in the primary care of their father as he does not have a stable workplace or home to provide for them.
That statement too is clearly a synopsis of the views of the wife as seen by the family consultant. Again, cross-examination will tell whether that is an accurate reflection based upon the facts given to the family consultant. However, it indicates that at least as late as two months prior to the commencement of this hearing, the wife’s strident attitude about the role she saw for the husband, was clear.
The legal issues
In the June 2017 hearing before Justice Johns, her Honour dealt with how a court should approach an interim hearing. I respectively adopt her Honour’s approach.
I find there is no basis to be concerned about protection of the children at this stage. I find the children have been denied any relationship with the husband and for no discernible justification at this stage of the evidence.
Section 60B(1) provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CC requires the court to consider the benefits of the nature of the relationship between the parents and the children. Up until February 2017, the evidence enables at least an interim finding that the relationship should not have stopped. Why that changed is something that will ultimately have to be determined in the final hearing and it may be that if a finding is made contrary to the mother’s views, she will need to establish how she would foster a relationship with the husband bearing in mind the way her outline was put and what she told the family consultant.
The impact on the children of the absence of the husband in their lives can be seen in the notes of the supervisor but that behaviour is said to be inconsistent with what was happening up until February 2017. The family consultant seems convinced that the wife has orchestrated this arrangement although it is not entirely clear to me how that is possible. The impact therefore of any orders on the children is a matter for final hearing. I take into account the views of the children as expressed to both the supervisor and the family consultant but against that, I have the evidence of the wife that they will do as she tells them.
Having heard the cross-examination of the husband by the wife, nothing indicates his capacity to care for the children during weekends and holidays is lacking. The real issue seems to be the resistance of the children for reasons that remain to be decided.
Despite the assertion of the wife about the husband’s absence during their marriage and subsequent to separation because of work commitments, nothing now seems to preclude the husband from having a meaningful relationship in the lives of the children because his work commitments are manageable. Whilst the wife indicated in cross-examination that he had no corroboration of that, he dismissed that indicating that with his understanding of the his profession and his seniority, not to mention the fact that his supervisors have been told of what was going on, he saw no difficulty at all in getting the time off needed.
In my view, the wife’s objections based upon his past efforts including overseas postings, do not help me on the interim basis.
The court is obliged to consider s 61DA of the Act by applying a presumption that it is in the best interests of the children that their parents have equal shared parental responsibility save in some specified circumstances. Section 61DA however provides that in interim hearings, the presumption should be applied unless the court considers that it would not be appropriate. Having regard to the discrete nature of the application before me for interim orders and the fact that the evidence is as yet incomplete, in my view, it would not be appropriate to look at whether or not either of the circumstances under which the presumption would not apply, should be used. In those circumstances I decline to consider that issue.
The children need substantial time to enable an assessment to be made as to whether or not the conduct witnessed since February 2017 is attributable to the wife’s conduct or whether they are genuinely uninterested in any such relationship with their father. Whilst C is nearly 14 years of age and his views must be given weight, the same argument does not necessarily apply to D who is much younger. I do not have the benefit of understanding D’s level of maturity.
Accordingly, absent some good reason, and none has been proffered, the interim orders pronounced on 24 August 2018 are in the best interests of these children.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 April 2018 from chambers.
Associate:
Date: 27 April 2018
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