Euston and Euston

[2010] FamCA 557

FAMILY COURT OF AUSTRALIA

EUSTON & EUSTON [2010] FamCA 557

FAMILY LAW – CHILDREN – Interim child and parenting matter – time to be spent with child aged 10 years of age – child has certain health, education and learning difficulties – influence of two elder siblings – family conflicts and police involvement with other children – mother’s application to suspend father’s time with youngest child – ongoing involvement of Family Consultant and further report to be delivered – amendment to current orders – referral of matter to Registrar pending further hearing

APPLICANT: MS EUSTON

RESPONDENT: MR EUSTON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4022 of 2008

DATE DELIVERED: 29 JUNE 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 29 JUNE 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WHEELER

SOLICITOR FOR THE APPLICANT: NOBLE LAWYERS

COUNSEL FOR THE RESPONDENT: MR WERNER

SOLICITOR FOR THE RESPONDENT: GADENS LAWYERS

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER MS SMITH

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER VICTORIA LEGAL AID

Orders

IT IS ORDERED

1. THAT paragraph 7(a) of the order made by consent on 18 May 2009 (“the prior order”) be varied to provide as follows:

   (a)during school terms on each alternate weekend from after school on the Friday until 8.00 p.m. on the Sunday, commencing on the first Friday after the commencement of each school term but in the month of July 2010 only recommencing 30 July 2010;

   (b)for the weekend commencing after school on 23 July 2010 until 8.00 p.m. the following Sunday.

2. THAT paragraph 7(b) of the prior order be varied for the June / July 2010 school holidays only so as to provide that B spend holiday time with the husband between 9.00 a.m. 30 June 2010 and 8.00 p.m. on Sunday 4 July 2010, with changeover to occur in the foyer of the D Police Station in accordance with paragraph 10 of the prior order.

3. THAT paragraph 7(g) of the prior order be varied to provide as follows:

   “By telephone on each Wednesday at 7.30 p.m. for a period of up to thirty (30) minutes with the husband to telephone [B] on his mobile telephone subject to:

   (i)it is the responsibility of the husband to ensure that the mobile telephone of [B] has sufficient credit on it from time to time to enable that call to occur;

   (ii)the wife must make [B] available to receive the telephone call and communicate with the husband in private;

   (iii)the wife must ensure that [B’s] telephone is turned on and fully charged.

4. THAT paragraph 9 of the prior order be varied to provide as follows:

   “By telephone during [B’s] time with the husband on Saturdays at 7.30 p.m. for up to thirty (30) minutes with the wife to telephone him on his mobile telephone subject to the following:

   (i)it is the responsibility of the wife to ensure that [B’s] mobile telephone has sufficient credit from time to time to enable the call to occur;

   (ii)the husband must ensure that [B] is able to communicate with the wife in private;

   (iii)the husband must ensure that [B] is available to receive the telephone call and that his mobile telephone is turned on and charged.

5. THAT B’s mobile telephone is to be exchanged between his parents at changeover to ensure at all times it remains in B’s possession.

6. THAT the husband is to be in substantial attendance with B or he is to ensure that his partner or an appropriate adult person is substantially present on all time spent occasions in accordance with these orders and the prior orders and he should ensure that B is not left in the sole care or supervision of his elder brothers, M or J, or either of them at any time.

7. THAT otherwise the prior orders continue in full force and effect.

8. THAT the interim orders sought on behalf of the wife in her amended initiating application filed 28 June 2010, and any interim orders sought on behalf of the respondent husband are otherwise dismissed.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties, including the Independent Children’s Lawyer

10. THAT the final child and parenting orders as sought by the wife in her amended initiating application filed 28 June 2010 and the final orders sought in response by the husband are otherwise adjourned to a date to be fixed and be listed before Registrar Mestrovic at a date and time when the further report from Mr P, Psychologist, and prepared pursuant to paragraph 4 of the consent orders made 8 June 2010 is available to all parties.  That further listing before the Registrar is to facilitate further directions and case management orders for trial and the report of that psychologist is to be filed with the court by the Independent Children’s Lawyer.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4022 of 2008

MS EUSTON

Applicant

And

MR EUSTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Euston was before the court as a pretrial issue to deal with what was said to be urgent children's matters.  Ms Wheeler of counsel appeared for the mother, Mr Werner of counsel for the father and Ms Smith is the appointed Independent Children's Lawyer. 

2. The background to the marriage and the children are set out in the substantial affidavits.  The parties were married for about 21 years and were divorced in July of 2009, having separated in February of 2008.  The children are:  M, who is 17 and a half years of age;  J, who is soon to be 16 years of age;  and B, the child the subject of the primary application, who was born in December 2000 and is nine and a half years of age.  B has certain learning difficulties identified in the affidavit material. 

3. Both the mother and father have re-partnered and each now live in their respective homes - the father in R and the mother in W - with their new partner of choice.  There are two children of the father's partner living in his household and they are 12 and 10 years of age.  Both parties and their partners have employment. 

4. The current order of the court is an order made by consent before Bennett J on 18 May 2009.  Those were final orders as to children and parenting issues and to financial issues.  As to the children and parenting issues, the overview of the orders is that the two elder children were to live with the father and B to live with the wife, and whilst an order for equal shared parenting responsibility was made, the mother was to have sole parental responsibility for certain matters concerning B.  Paragraph 7 of those orders identify the time that B was to spend with his father, predominantly alternate weekends and half school holidays and other special occasions.  There is a particular telephone order at subparagraph (g) thereof in favour of the father, and the mother's corresponding telephone order is provided for in paragraph 9 of that order. 

5. The mother and father have a longstanding hostile relationship.  There is no ongoing discussion or ability for one to talk to the other.  There are various past intervention orders and matters which I have read that are not fundamental to the interim orders now before me for determination.  An example of the conflict and lack of communication skills of the adults is that changeover occurs at the D Police Station for time spent orders, save otherwise when at school. 

6. The mother caused to be filed on 24 June a Form 4 Notice of Child Abuse or Family Violence and that document is now before the court and I have read and had very particular regard to the issues identified therein.  Otherwise, the mother's case is dependent upon her two affidavits filed 13 April 2010 and 28 June 2010 and the substantial exhibits annexed thereto. 

7. The father's case is contained in his affidavit of 21 June 2010 which likewise I have read. 

8. The other two affidavits which have been identified are each of the professional witness Mr P’s affidavits filed 5 December 2008 and 12 May 2009.  I have not read the affidavits but I have read the substantial reports prepared by Mr P dealing with this family and their substantial conflictual issues of and concerning the three children, but primarily for the purposes of this application today, focusing on B. 

9. Both counsel for the mother and father have sought to identify particular sentences or paragraphs in the professional reports, but I have read as an overview the whole of both reports and the issues concerning all children and relevant adults. 

10. It is generally clear that the two reports were prepared as a lead‑up to the final consent orders pronounced in May of 2009, and certainly one can well and truly understand that the conclusions and recommendations of such an experienced psychologist had some influence on the parties in reaching by consent, final parent and child orders.  I will not in more detail highlight the many concerns of Mr P and his recommendations. 

11. In simplistic and general terms, and dealing only with the second of the reports, there is the identification of and acceptance given to B spending time with his father and brothers, and that the arrangements that then were in place should continue with the sharing of holidays and many other consequential orders.  The reality is that the final orders providing to the father alternate weekends on an extended basis from after school on Friday until the commencement of school on Monday morning were made in the light of those recommendations as were the holidays and other orders.  That background is available to me in determining the interim issues now before me. 

12. Ms Smith appearing as the Independent Children's Lawyer has prepared for the court, and I have had marked as an exhibit in the proceedings, the orders that are considered by her as appropriate.  Those orders embrace the continuation of the current order that are fine tuned as to issues on the Monday morning at and prior to school, and otherwise as to restraining orders between parents, to the father being in substantial attendance on all times spent with and trying to monitor the relationship of B with his two elder brothers, and all of the issues touched upon in affidavit material or elsewhere by way of submission from counsel. 

13. I have carefully, therefore, considered each of the seven orders proposed and there is merit in some of them, though again issues of and related to ongoing protection of B and his best interests, which are fundamental, are perhaps more long‑term orders. 

14. The amended application of the mother primarily seeks to suspend the current orders whereby B has any contact with or time spent with his father and arising therefrom with his brothers. 

15. The father's response in his material is to continue his court‑ordered time, but there are amendments sought in respect of the telephone time provided for at 7.30 on a Wednesday which simply is not occurring. 

16. The current position is that B should be with his father for school holiday time, but that has been prevented by the mother.  A letter which identified issues in the matter was forwarded from her solicitors to the father's solicitor and that purportedly justified the withholding of B for court‑ordered time.  I do not endorse that letter, but certainly the context in which it is written is understood, but that is not to say that taking such direct action is both appropriate or acceptable. 

17. The affidavits in this case highlight the total breakdown in the parental relationship.  These two adults cannot, do not and will not talk to each other.  No order that the court could or would make will overcome that scenario.  There is both a lack of respect, no trust and bad blood between the respective parents and that is highly inappropriate and unfortunate, but perhaps a reality in this entrenched case. 

18. The greater concern is that M and J, the two older children of the marriage, have many social issues confronting them.  They have no relationship with their mother.  There are clear examples of totally inappropriate conduct and language and behaviour towards her.  I do not examine any of those matters in any detail and I refrain from any prolonged criticism in the context of the issues before me.  There are upcoming court intervention/family violence hearings that may explore in more detail these matters. 

19. The issue before the court and which the court must know and understand is that the father has the very heavy onus and responsibility of providing for, raising or giving some other level of parental guidance to M and J.  Each of them have police concerns and unacceptable community and social behaviour matters outstanding.  As recently as last weekend there was an issue with J.  Ms Wheeler on behalf of the mother sought to introduce a further proof of evidence for her client to adopt but I rejected that approach and have given previous extemporary reasons not to further open up those issues as I well understand that proof of evidence would have detailed matters reported to the mother but not witnessed by the mother or known to her firsthand.  They may be matters that are correct, but they were not going to influence interim orders made this day. 

20. The father has re-partnered and in his R home he lives with his new partner and her two children aged 12 and 10.  That is a matter of some importance in the case and in the context of M and J also living there.  It may be simply that there are matters that the court does not know of, but I can only understand that the parent of those two children has also a very appropriate understanding of issues concerning their welfare and there are no issues or complaints before the court at this stage, and hopefully there will not be.  The importance of that is that when B goes to his father's home on most occasions, and subject to court orders in that other household, then the 10 and the 12 year old child will also be present for B. 

21. There are many issues of language, behaviour, schooling and education and B’s learning difficulties touched upon in affidavit material.  All of those matters form the basis for a very substantial further consultation and report from Mr P, and that further conference has been fixed for 19 July 2010.  The intent is that - as I understand the position of the parties - there will be an updated report prepared at some future date after one or more consultations.  That may be available to the court to reflect upon for B’s concern and circumstances.  I will not pre‑empt or prejudge that report, particularly given the context of the earlier recommendations of Mr P. 

22. The outline before me from the independent children's lawyer was one of supporting the continuation of the current order.  I give due respect to that position, but in the best interests of B I will be making some changes to the existing order.  The instructions given by the mother to her practitioners are simply overarching of all issues with B.  Her approach, even on an interim basis, is almost to cull any time that B spends with his father or his brothers on the basis that isolation or separation will be in the best interests of B.  That is wholly at odds with the past reports of Mr P and the mother's own actions in the consent orders of May 2009. 

23. I well understand this is a developing scenario and seemingly the social conduct and behaviour of J is worsening.  Indeed, on one view it is appalling.  M’s behaviour is also poor in community and personal standards, but again I emphasise I make no judgment individually against those two members of the family.  The Family Law Act requires me to make an order that is in the best interests of B on the application before me. 

24. The primary considerations of s60CC are known to counsel and the parties and have been identified.  They are, first, the benefit to B of having a meaningful relationship with both of his parents.  He clearly has such a relationship with his mother.  On the view of the past professional evidence, and B’s evidence is introduced by the father, he has a meaningful relationship with his father that should be protected.  The only way he will have any time with his brothers, if that be in his continuing best interest, is through the father as most certainly on current evidence the mother's relationship with M and J is non‑existent. 

25. The other primary consideration that Ms Wheeler promoted substantially was the need to protect B from physical or psychological harm or being exposed to abuse, neglect or family violence.  Of course, that's of great significance and importance. There is a balance required between those two primary considerations. 

26. The father has a significant obligation to care, protect and provide for B if required, certainly to supervise and to be in substantial attendance.  Simplistically, however, B’s interests cannot be served by simply separating and isolating him from his father and his brothers.  I do not rule out any future order in this matter because it clearly is a case of tension and turmoil and adolescents somewhat out of control, ie M and J, but again I do not develop those matters outside of the ambit of B’s interests and concerns. 

27. The many additional considerations of s60CC are identified in subparagraph 3 and again they focus on the nature of B’s relationship with his parents and other persons, including his brothers, and the children now in the home which he shares with his father when he is there on time-spent arrangements.  Issues of the capacity of parents or the attitude of parents are, perhaps, more for a defended hearing. 

28. Issues of family violence as identified in subparagraphs (j) and (k) thereby are clearly matters of concern but which have been identified within all of the material before the court. 

29. Other issues such as touched upon in subparagraph (c) and subparagraph (l) are of importance but perhaps more so on a defended and not an interim hearing. 

30. The simple reality, but the difficult aspect of this case, is to have regard to all of the pressures that are confronting B in life.  He must know of the breakdown in relationship between his mother and his brothers.  He must know of the continual conflict between parents.  He is torn between two households because of his age and parents who do not or will not cooperate in any way with each other.  Certainly B has many, many issues and for a child with learning disabilities they are, perhaps, somewhat aggravated.  He is torn between two families, brothers and all that he must see and observe in the households. 

31. Then there is the issue of bullying, which is serious and substantial.  I do not in any way underestimate the appalling bullying in terms of the marks or injuries sustained to his neck or to his bottom and generally the concern that he must have with his brothers.  The father must better manage and protect and supervise those issues.  But they are not at a point where I could or would say that the answer is to isolate B from his father and family. 

32. I intend to provide only brief extemporary reasons.  This is a duty list hearing and the matter has now been continuing before me for three hours and I am delivering these brief reasons without leaving the bench.  This matter will come back to court after the further report of Mr P.  The parties have already expended a significant sum of money and will continue to spend moneys on these proceedings as they are privately funded by each of them.  I have already made the observation which was intended to be helpful that the moneys being spent on lawyers could better be spent on education, counselling, assistance for the three boys, perhaps particularly B, but how the parties deal with these matters is for their own determination and maturity. 

1. The primary position of the mother to suspend all court orders and B’s time with his father or brothers is not accepted by me.  It cannot be in B’s best interests simply to stop all time at this stage on an interim basis pending a further report and/or a further hearing.  Both parents have an onus to protect B in every way through counselling, discussion, comforting or supervision, and active management. 

2. Ms Wheeler otherwise identified that if I were not to deal with the orders I should ensure that there was no overnight time spent between B and his father.  I will not do that.  That clearly cuts away at any meaningful relationship. 

3. Issues of alcohol in the father's home are difficult matters and the acceptance of making orders that M and J could or would obey are matters somewhat unknown to the court, and my focus is on B. 

4. The father, in many ways from what I have read in material, needs to have a more understanding, responsible, mature attitude to issues touching upon B and give a greater level of direction to him. 

5. Clearly no affidavits in this court case should be shown to any children, and any reference to learning disabilities or any educational program designed for B should be carefully managed and be limited in its disclosure.  They are just commonsense matters.  There is no suggestion that there has been any breach of affidavit distribution or of the further education for B, that is special education and needs, and I will not make any orders in that regard.  The parents must have enough commonsense to know and understand those factors. 

6. I do intend to vary the court orders.  I do intend to stop the Monday morning delivery of B to school by his father, and the order will now terminate at 8 o'clock on the Sunday.  The mother sought 5 o'clock.  I understand the reason for that and I have to balance the homework and settling‑in period as against that time with the father on a Sunday evening until 8 o'clock, and I certainly require B to be fed and to be ready for changeover at 8 o'clock at the D Police Station punctually, and in a circumstance where he can go home and sleep.  If that means the father has got to show a level of responsibility about homework and education, then so be it, and he will be judged hereafter on how he does this and whether he is capable of ensuring homework is done rather than just watching movies.  At some point in time the father has to show some greater level of maturity and stand up and be counted.  So that provides him some opportunity to show his best side. 

7. As to holidays, the order I make will only relate to the current June/July school holiday period.  B should be with his father now.  He is not because of the actions of the mother.  I will not further develop that issue, but B can go immediately to his father.  In view of the time of day and some reasonable measure of the mother explaining carefully the developments of the day such as B may need to know them, he can go at 9 o'clock tomorrow morning to the D Police Station there to be collected by his father and to be returned at 8 o'clock this coming Sunday; that is, the father will have all of Wednesday, Thursday, Friday, Saturday and Sunday until 8.00 p.m. 

8. I make no other order about future holidays, and the current consent order unless otherwise varied in future hearings can remain.  The weekends for the father will recommence after school on Friday 23 July until 8 o'clock Sundays, and then the following, the 30th, which is the Friday, and then alternate weekly thereafter.   

9. As to the telephone it is going to be absolutely clear that both ways they will work.  The obligation is for the father to have sufficient credits on the phone so when he rings B there is talk time available, and likewise the mother can contribute so that when she rings B, there is talk time available; that is if we are talking prepaid SIM card or whatever. 

10. The way I see the draft of the order contained in the father's response, which says for up to 30 minutes, it is not to be expected that B will talk for 30 minutes.  A child his age might only want to talk for five or 10 minutes.  So the maximum is 30 but the minimum is as B determines, but it is certainly reasonable both ways that it be in private. 

11. So I will incorporate paragraph 2 of the husband's response in lieu of the current subparagraph 7(g), and likewise in paragraph 9 of the current order they will be varied to provide a like order for the mother to ring B when he is with the father between 7.30 and 8 on a Saturday and for up to 30 minutes with the parent with whom B is then staying or living to facilitate that it works.  These parents should at least be able to work a telephone call.  It cannot be too hard for whatever reason.  The logic is to approach it that B is getting the benefit not the other party if each of them are determined to upset on a continuing basis their former spouse, which seems to be part of this case. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: