Delaney and Timmins

[2011] FamCA 91

FAMILY COURT OF AUSTRALIA

DELANEY & TIMMINS [2011] FamCA 91

FAMILY LAW – CHILDREN – with whom a child lives

APPLICANT: Mr Delaney

RESPONDENT: Ms Timmins

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 9099 of 2007

DATE DELIVERED: 2 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 2 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Scriva

SOLICITOR FOR THE APPLICANT: Aloe & Co Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Piggott

SOLICITOR FOR THE RESPONDENT: DLA Phillips Fox

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. All prior orders relating to the parenting of the children M born … August 1996, A born … March 2000 and N born … May 2002 be and are hereby discharged.

1. The children M, A and N live with the Mother, this Order in relation to A is suspended until the Orders are explained to the children as provided for in paragraph 21 of these Orders.

1. The Mother and the Father have equal shared parental responsibility for the children M, A and N.

1. The child M spend time with the Father as agreed between M and the Father.

1. The children A and N spend time with the Father as follows;-

(a)    Until the commencement of the first school term in 2012,during the School Term as determined by the schools that each boy attends, each alternate week from after school or 3.30pm Friday to before school or 9am Tuesday commencing 18 February 2011;

(b)    From the commencement of the first school term in 2012, during the School Term as determined by the schools that each boy attends, each alternate week from after school or 3.30pm Friday to before school or 9am Wednesday;

(c)    Until the conclusion of Term 1 in 2012, during the school holiday periods as determined by the schools that each boy attends, each alternate week from 3.30pm Friday to 9am Tuesday;

(d)    From and including the school holidays that occur at the conclusion of Term 1, 2012 as determined by the school each boy attends, for one half of the school holiday period that occurs at the conclusion of terms 1, 2 and 3, as agreed between the parents and failing such agreement for the first half in the year 2012 and each even numbered year thereafter and the second half in the year 2013 and each odd numbered year thereafter;

(e)    Subject to orders in paragraphs 5g. and 6.a. herein, during the Christmas school holiday period as determined the school each boy attends;-

(i)     In the years 2012/13 and 2013/14, for one half of that holiday period to be taken in 7 day blocks alternating so that the Father has one week and the Mother the next week;

(ii)    In the year 2015/16 and each year thereafter for one half of the holiday period as agreed between the parents and failing such agreement the Father shall have the second half of the holiday period;

(f)     For the purposes of 5.e herein the school holiday period shall commence at 3.30pm on the last day of term 4 and conclude at 3.30pm on the day immediately prior to the day on which the children are return to school;

(g)    From 4 pm on Christmas Eve until 2pm Christmas day in even numbered years and from 2pm Christmas day until 10am Boxing Day in odd numbered years;

(h)    Each Father’s day from 9am to 5pm;

(i)     Such other times as specifically agreed between the parents in writing.

1. The children A and N spend time with the Mother and the Father’s time with the children A and N shall be suspended shall  as follows;-

(a)    From 4pm on Christmas Eve until 2pm on Christmas Day in odd numbered years and from 2pm Christmas day until 10 am Boxing Day in even numbered years;

(b)    Each Mother’s Day from 9am to 5pm.

1. The Birthday of each child, the parent who does not have the child in their care on that day shall spend 2 hours with the child as agreed and failing such agreement from 5.30 to 7.50pm.

1. That changeovers which do not occur at school be effected by the party with whom the children or any of them are spending time by delivering the children or any of them to the parent who is to spend time with the children or any of them and that party return the children at the end of his or her time with the children.

1. Forthwith the Father do all acts and things and sign all documents necessary to enrol and participate in the next available Parenting After Separation program conducted by CentaCare, such course to be commenced and completed within 6 months and each party send a copy of their respective certificates of completion to the Independent Children’s Lawyer.

1. The Father be at liberty to communicate by telephone with the children M, A and N each Wednesday at 7.30pm

1. The Mother and the Father do all acts and things to cause the children M, A and N or any of them to attend Dr K or such other therapist as recommended by Dr K (“the Family Therapist”) and participate in therapy with The Family Therapist for such period of time as recommended by the Family Therapist the cost of such Family Therapy to be borne by the parents equally.

1. The Mother and the Father attend upon the Family Therapist for family therapy as directed by him of her for such period of time as recommended by him or her.

1. The Mother attend Dr G for therapy as recommended by Dr G and for such time as recommended by Dr G.

1. The Father attend upon Mr C, psychologist (“the Father’s counsellor”) for counselling and therapy for a period of 6 months or such other time as recommended by the Counsellor.

1. The Independent Children’s Lawyer has leave to forward to the Family Therapist, Dr G and the Father’s counsellor copies of the Family Reports and the report of Dr E.

1. The Family Consultant is at liberty to discuss with the Independent Children’s Lawyer the meetings that she has with the parents and the children and to prepare a memorandum to the Court if in the Family Consultant’s view the arrangements for the children are not meeting their emotional and psychological needs.

1. The Mother authorise Dr G to discuss with the Independent Children’s Lawyer of the Mother’s attendance at therapy.  

1. The Father authorise his counsellor to discuss with the Independent Children’s Lawyer of the Father’s attendance at therapy.  

1. Each the Mother and the Father give all necessary consents to authorise the Family Therapist to discuss with the Family Consultant the progress of the children M, A and N in therapy.

1. Both parents be and are hereby restrained from;-

(a)    Removing the children M, A and N (“the children”) or any of them from the state of Victoria without first notifying the other parent of the intention to remove the children and providing to the other parent particulars of where the children will be staying and a phone number at which they can be contacted;

(b)    Abusing , harassing, belittling , rebuking or denigrating the other parent or members of the other parent’s family in the hearing or the presence of the children or any of them

(c)    Physically chastising the children or any of them;

(d)    Consuming alcohol to excess;

(e)    Consuming any illegal substances;

(f)     Permitting the children or any of them access to any Court related documents whether directly or by leaving such documents where the children might find or see them.

1. It is requested that these orders are to be explained to the children M, A and N and the Mother and the Father by the Family Consultant Ms B (“the Family Consultant”) and such explanation be undertaken within 48 hours of the making of these orders or as soon as practicable thereafter subject to the availability of Ms B.

1. The Mother and the Father attend upon the Family Consultant and cause the children M, A and N to attend upon the Family Consultant, as directed by her but not later than 31 May 2011 to discuss these orders and the effectiveness of their implementation.

1. The Independent Children’s Lawyer be discharged on 1 February 2012.

1. The parents will facilitate the reasonable attendance of the children or any of them at their extra curricular and sporting activities during the periods that the children are in their respective care in accordance with these orders.

1. Until 1 November 2011 the Mother and Father will not attend school, extra curricular or sporting activities of the children during periods that the children are in the other parent’s care.

1. Each parent notify the other as soon as practicable in the event any of the children suffer serious injury or illness which requires medical attention.

1. Within 28 days of the date of the making of these orders each parent provide to the Principal of  the children’s school written consent to permit the children M, A and N or any of them to attend upon the school counsellor at any time the children or any of them request.

1. 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 the 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.

1. Otherwise all existing applications shall be dismissed.

1. My reasons for judgment given this day shall be transcribed and retained on the Court file.

NOTATION:

Details within paragraphs 4, 5(a), 5(b), 5(c), 5(d), 5(e), 5(g) and 5(i), 6(a), 7 and 9 were determined by the Court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9099 of 2007

MR DELANEY

Applicant

And

MS TIMMINS

Respondent

REASONS FOR JUDGMENT

1. Mr Delaney (the father) and Ms Timmins (the mother) have three boys:  M aged 13½,  A aged almost 11;  and N, aged 8½ .  The parents agree on very little, but there is a loose consensus that in the 4½ years since separation, the boys have suffered terribly in the midst of parental conflict.  The proof of that is in the degree of dysfunction within this family. 

2. At times, M lived with his father and refused a normal relationship with his mother.  He was angry and aggressive towards her and accused her of physically assaulting him.  Then, from about 2008, M went to live with his mother and, since then, has made very serious allegations against his father.  He is now closely aligned with his mother and rarely spends any time with his father.

3. Young N, according to all the material, seems the least adversely affected of all the boys.  He goes back and forth between each parent’s home and seems to enjoy spending time with both of them.  He suffers, though, from the fallout of the family conflict, by missing out on normal sibling relationships, given the various and shifting alignments of his other brothers.  One way or another, all three boys are rarely together, or together less frequently than they need to be.

4. A, according to all the material, is a very troubled child.  Since about 2008, he has lived mainly with his father, with a growing alignment to him, matched by a deteriorating relationship with his mother, so that he has spent inconsistent time with her, and there have frequently been problems, including that several times he has run away. 

5. The case started before me several days ago, with the parties each offering, through counsel, deeply polarised positions.  The father sought orders that A and N live with him and spend five nights each fortnight with their mother, as well as half school holidays and some other special occasions.  He also sought a large number of orders about how the children were to be cared for.  He accepted that M would remain with his mother and should choose when to spend time with his father. 

6. The mother, for her part, sought orders for all three children to live with her, for her to have sole parental responsibility, and for the children to spend weekly supervised time only, with their father.  She also sought various other orders in relation to the care of the children, including that they continue in therapy with Dr K, the psychologist they have been seeing.

7. At the start of the case, the Independent Children’s Lawyer (ICL) offered no specific opinion in relation to orders. 

8. The evidence commenced.  The father, as the applicant, was the first witness.  He was being cross-examined by counsel for the mother.  The cross-examination was interrupted by the lunch adjournment.  In the course of lunchtime, counsel on his behalf apparently initiated discussions with the other counsel.  After the lunch adjournment, a change of heart on the father’s part was conveyed to me. 

9. He proposed, as the mother had sought, that A and N would live with her, but that they would spend five nights’ per fortnight with him.  I was then told that the settlement discussions had effectively stalled, and counsel for the ICL wanted to ask the father some questions in the witness box about his change of position.  I allowed that to occur.  There was no opposition to it. 

10. The father explained that he was deeply concerned about A’s behaviour.  He believed that the relationship between A and his mother, from A’s perspective, was “not healthy,” but with “a lot of encouragement” it could improve. 

11. Although he could not clearly explain his change of heart within a matter of just hours, he emphasised that being at court could help parents reach an agreement, and he was trying to “think outside the square”, to try something different.  He emphasised his sincere desire to do whatever was necessary to support A’s relationship with his mother in what he described as a “new beginning.”  He said in light of the evidence as to A’s mental health, to which I shall return in more detail in a moment, he would do whatever was considered necessary to support A and all the children.  That would even include a period of not seeing A if the experts supported that as what is sometimes called a “circuit-breaker”.

12. The parties’ settlement discussions then continued.  Yesterday, I was advised by counsel for the ICL that she would like to ask the Family Report writer some questions.  I was advised that the parties had a broad agreement as to the younger two boys living with their mother, along with M, and it was agreed that at least until November 2011, they would spend four nights’ per fortnight with their father. 

13. At that point, the areas of dispute were as follows.  First, whether the four nights’ per fortnight with their father would increase to five nights in November 2011 or at the start of February 2012, and whether A and N would spend half of school holidays with their father from the Term 2 holidays 2011, as it was put to me yesterday that the father was seeking, or half school holidays only from the end of Term 1 in 2012, as the mother was seeking.  There were also some differences as to how the long summer holidays would be handled. 

14. In the course of the Family Report writer’s evidence, that I allowed without any opposition, it became clear that there were other areas of dispute.  Through his counsel, the father set out a range of orders not agreed by the parties, including an order, for example, that the children not be left without supervision, a restraint against the children hitting or hurting each other, and a number of other matters all set out in the father’s proposed orders.

15. This morning, the issues before me narrowed.  In my view, before I turn to them, it is still important to make some observations. 

16. Due to the parents’ negotiations and agreement, I have not heard all the evidence in this case.  I have however read a great deal of material and heard some key parts of the evidence.  There is no need to record the detail.  It is easy to summarise that the hostility and antipathy between the parents has been intense.  It is also easy to summarise that although the parents have had shared care arrangements along the way, they have failed.  The lives of these boys have been chaotic.  They are seriously adversely affected.  That is the essence of this case.  The parents’ perspectives differ as to the cause of the chaos, but what is clear is the very deep concern held by the experts and the need for stability and certainty for these young boys. 

17. The seriousness and urgency of the situation is palpable when it comes to A.  Dr K, the psychologist who has counselled the boys, described A presenting as a child who is “currently emotionally disturbed” and as “anxious, unhappy and angry.”  Dr K said he had “serious concerns regarding A’s mental health,” raising “significant concerns about his long-term mental health.” 

18. According to the Family Report writer, when discussing A with her, Dr K went so far as to describe A as “a very disturbed child with a very unusual presentation.”  He told her that in his 30 years of having children consult him, “he had never encountered a young child who was so imbued with cynicism and sarcasm.”  He described A as an “extremely closed and angry child who demonstrated characteristics commonly observed in psychopathic personalities.”  Dr K was very concerned about A’s alienation from his mother in his father’s care, and referred to the need to “deprogram” A. 

19. The Family Report writer herself was very concerned about these three boys.  She described how she had known them over four years, interviewing them on at least five occasions.  She said that each time she had interviewed them, they had openly wept while they spoke about their family. 

20. At an interim hearing, I referred to the poignancy of A’s presentation to the report writer when she was preparing her report in the middle of 2010.  She said then that she found him noticeably “more angry and hostile” than in previous interviews.  He was very critical of his mother.  She said that he “wiped away tears during the interview,” and, although maintaining a very favourable outlook of his father and living with him and a very unfavourable outlook of his mother and spending time with her, the expert reported that “as he left the consultant’s office, he turned back adding, ‘I am so used to being lonely, it doesn’t matter any more’.” 

21. In her 17 December 2010 report prepared for this trial, the Family Report writer emphasised her “increasing concern” for the children.  She was very concerned that A feels “an all-consuming duty of care to his father, and in his mind he may feel he is the only person who can support him.”  She was concerned about a co-dependence having developed between father and son replacing a normal father/son relationship.  She was concerned that the father may not be accepting, or may not understand the gravity of the situation, and the alienation that this child was experiencing. 

22. She noted M as having developed a strong relationship with his mother, but that he was continuing to yearn for a closer relationship with his father.  In the previous interview, she had found M “extremely confused and angry”.  She described both A and M as “extremely traumatised by their parents’ dispute”, but she noted that M had “found peace living with his mother and he is enjoying an emotionally healthy lifestyle.” 

23. The report writer noted N, as I mentioned earlier, was not as affected by the conflict as his brothers, but that the most beneficial and important outcome for him would be to live with his brothers, which had been his request from the outset.  In that last report, Ms B recommended that the children live with their mother and have only supervised time with their father. 

24. Although the parents’ proposed settlement was not in line with that recommendation, when the Family Consultant gave her evidence, she was clear that, of the two options, she preferred the option for the children’s time with their father not to be increased to five nights’ per fortnight before February 2012, and for school holidays to be introduced in the manner proposed by the mother, again being more slowly than sought by the father.  She emphasised the need for a tight structure, as she put it, saying it would be imperative for these children to be able to settle down.  She also said that therapeutic support would be imperative. 

1. She reiterated her concerns for these children, repeating that there was no occasion when she had interviewed them “where the children haven’t wept inconsolably.”  She described A, in particular, as “emotionally very fragile.”  He is a “very confused little boy,” and she described M as having been “traumatised over a long period of time.” 

2. The Family Report writer was asked by counsel for the ICL to consider a circuit-breaker period whereby the boys would live with their mother and not see their father at all.  She said that although that arrangement could work in some families, she did not recommend it for this family.  She said that for A to move to his mother’s home, and to have that sort of enforced period of separation from his father, would only emphasise to him the separation from his father.  The parents live only a very short distance from each other, and the Family Consultant was concerned that A would, during that period, run away to his father’s home, which naturally, at present, he sees as his primary home.

3. The Family Consultant’s evidence was clear that the children need a home base.  They need certainty and predictability.  They have not had any of those things without disruption for many years.  It now needs to be cemented.  They need ongoing therapy to go with it, and it would be in their best interests, she said, for her to be the one to tell the boys of the outcome of this case, so that they could hear it from an independent person with the full sense of the authority of the Court behind her.  The boys need to understand that their parents have worked hard to resolve the issues, and that the judge has made the final decision on their behalves.  I note that it has been written into the proposed consent orders today for the Family Consultant to talk to the boys, and, shortly, I am going to ask counsel as to how that is to be arranged.

4. Having recited those parts of the material, I emphasise I have not heard all the evidence.  I recite those parts though, because the parents’ agreement seems to reflect an acknowledgement of the boys’ problems.  It seems to reflect the need for M now to decide when to see his father, and it seems to reflect an acknowledgement of the need for A to adjust to living with his mother, and the need for the boys to be a family unit again and to spend time as, and be treated as brothers.

5. What I have avoided reciting is some of the trenchant criticisms of the father’s role, particularly when it comes to A’s mental health, as recorded by the Family Consultant, the forensic psychiatrist and the children’s treating psychologist.  I am conscious that the evidence in that regard was not fully tested.  Accordingly, and given the father’s assurance of seeking any help required to right the family issues, I do not propose dealing further with that aspect of the material.

6. Finally though, before turning to the outstanding issues, I note the ICL’s helpful role in this case.  Although counsel for the ICL has made it clear that the agreement in principle between the parents is not necessarily reflective of the course that the ICL would have advocated, she has chosen not to disagree with the orders but, importantly, has worked within the framework of the parents’ in principle agreement to make proposals with the children’s interests to the fore.

7. As noted, this morning I have been presented with the proposed consent orders, and it was clear that the issues in dispute have considerably narrowed.  I shall deal with each remaining issue in turn.  I emphasise that when I refer to the children, it is to A and N, the parents having agreed on the completely different arrangement for M.

8. The first issue was whether the father’s four nights’ per fortnight with A and N should increase to five nights at the start of the 2012 school year, as sought by the mother and the ICL, or on 1 November 2011, as sought by the father.  I am satisfied it is in the boys’ best interests to start in 12 months’ time, at the start of school in 2012.  The Family Consultant was absolutely clear about that. 

9. Although there are only several months between the opposing proposals, given the expert’s emphasis on the need for these boys to be supported towards an ordered and structured existence, contrary to what they have experienced for so long now, I endorse the period of 12 months, with the cycle of one year of events, to promote that settling process.  It is more than four years’ of chaos that now has to be remedied.

10. The next issue is whether A and N should spend half school holidays with their father from the July 2011 term break, as the father seeks, or from the first term break in 2012 with the fortnightly routine being maintained in school holidays until then, as sought by the mother and the ICL.  I am satisfied that counsel for the ICL eloquently summarised the need for these fragile children to have time to settle into a structured fortnightly routine this year without four different interruptions to that, the first being in only nine weeks’ time, and for a full 10 days, given the boys’ private school holiday breaks that are generally longer than at government schools.

11. It is in the interests of these boys to be established psychologically and emotionally, as counsel put it, in their mother’s primary care, regularly spending time with their father before that much-needed routine is altered in any way.  Throughout the holidays, the fortnightly routine can be maintained so they shall still be spending time with their father.  That is important. 

12. The next outstanding issue arose from the mother’s proposal, endorsed by the ICL, that from the 2012/2013 summer break, and thereafter, the children should take the long summer holidays in seven day blocks with each parent – that is, week about.  I indicated that the value in that in the shorter term is clear for the same reasons as set out above, considering the need for certainty and routine and for the children to be able to settle.  I suggested that it could prevail for the two holiday periods of the summer of 2012/2013 and the summer of 2013/2014, but that thereafter it should be in half and half blocks, the parents agreeing to which half and failing agreement, the father having, as he suggested, the second half.  Ultimately, there was no argument against that suggestion.

13. The next issue was Christmas Day.  The mother and the ICL proposed an arrangement so that the boys could spend part of each Christmas Day with each parent.  The father proposed year about, predominantly so he could have the capacity to take the children to Sydney to be with his family.  As I said to the parties, determining Christmas Day is always fraught.  Frequently, a result whereby the children have the fun and joy of seeing their two loving parents on such a special festive occasion is the best that can be achieved for the children.  It is what is enjoyed by children in an intact family, and it is hard to argue that children in separated families are entitled to less. 

14. These boys in particular need the emphasis on the fact that they have two loving, contributing parents.  Doing the best that I can, I propose the orders that will have the boys seeing each of their parents on Christmas Day.  The father is certainly not precluded from having close family from Sydney in Melbourne, or from spending other holiday time interstate, provided the appropriate notice provided for in these orders is given. 

15. Then there was the question of the children’s birthdays.  I agree with the father’s proposal for the children to spend two hours of their birthday with whichever parent they would not otherwise be with on that day.  I understand the argument to the contrary from the ICL and the mother, but I am satisfied that for N and A, to have that time with the other parent on their respective birthdays is a treat that they should be able to enjoy on such celebratory occasions.

16. I am conscious, I should say to the parents, that special occasions like Christmas and birthdays can see emotions running high.  In my view, a parent’s capacity to put their child’s needs ahead of their own is never more sharply in focus than on such special occasions.  The children must be free of conflict and fully able to enjoy those days. 

17. The mother raised one other area of departure from the structure of orders written out by the ICL.  It related to attending a Parenting after Separation Program at Centacare.  No doubt in proposing that each parent attend such a program, the ICL intended to treat the parents equally.  Only the mother took issue with it.  In my view, her arguments were cogent.  She has already undertaken a program.  She has sought, and is continuing to seek help with parenting issues from Dr G, her own psychiatrist, and Dr K, the boys’ treating psychologist.  She works full-time and will have the primary care of three challenging and time-consuming boys.  The material persuades me that she does seek appropriate expert help, and I am satisfied she need not complete another course. 

18. So far as M is concerned, the order proposed by the mother and the ICL was that M would spend time with the father as agreed between M and his father, such time to be exercised when A and N are also spending time with the father.  The father’s proposal was that, although it was agreed that M would only spend time with him as he and M agreed, it could be either with the other children or separate from them. 

19. I propose allowing the degree of flexibility sought by the father because, on balance it might be better.  My strong suspicion at this point is that M might not choose to spend time with his father without his siblings being present but, not only would one hope that the relationship becomes healthier so that he might change his mind, but also he is older and may have some separate interests that he could enjoy with his father.  If there is going to be flexibility between M and his father, it should be genuine flexibility so that M can determine what makes him comfortable.  The boys are now going to be spending most of their time together in any event.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 2 February 2011.

Associate:  Alison Power

Date:  2 February 2011