Euston and Euston (No. 2)

[2008] FamCA 696

FAMILY COURT OF AUSTRALIA

EUSTON & EUSTON (NO. 2) [2008] FamCA 696

FAMILY LAW – CHILDREN – Interim parenting orders – split siblings – highly dysfunctional family

APPLICANT: MS EUSTON

RESPONDENT: MR EUSTON

FILE NUMBER: MLC 4022 of 2008

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.P. Hutchins

SOLICITOR FOR THE APPLICANT: Wilsons Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms H. Dellidis

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

INDEPENDENT CHILDREN'S LAWYER COUNSEL: Ms M. Vohra

INDEPENDENT CHILDREN'S LAWYER SOLICITOR: Victoria Legal Aid

Orders

IT IS ORDERED:

(1)      That the competing interim applications for parenting orders and the issue of interim financial matters be adjourned to the Judicial Duty List before the Honourable Justice Bennett on 7 October 2008 at 10.00 am estimated to take half a day and for a determination of any adjustment to the existing parenting orders including time to be spent between the boys M born … February 1993,J born … August 1994, and B born … December 2000 in the forthcoming October school holidays and any interim distribution of proceeds of sale of the former matrimonial home, being the property at T in Victoria.

(2)      That within fourteen days prior to the adjourned date of hearing each party file and serve any further affidavit material upon which they rely.

(3)      That by 5.00 pm Friday 20 June 2008 the husband return to the wife via their respective solicitors the duly executed authority documents to the estate agent and other associated documents for the sale of the property at S in Tasmania as provided for in paragraph 4 of the Orders made 23 May 2008.

BY CONSENT IT IS ORDERED:

(4)      That there be orders in terms of the minutes of consent orders as amended signed by the parties and dated 17 June 2008 (“the minute”).

IT IS DIRECTED:

(5)      That the minute be placed upon the Court file and marked “Exhibit A”.

(6)      That the solicitors for the Applicant Wife do engross the amended Minute and provide a clean, duly certified copy of the same (“the copy”) to the Registry of this Court electronically within two days.

(7)      That upon delivery of the copy to the court, the within orders be extracted and the copy be attached thereto.

BY CONSENT IT IS ORDERED:

(8)      That there be orders in terms of the minutes of Orders as amended, signed by the parties and dated 17 June 2008 (“the minute”).

IT IS DIRECTED:

(9)      That the minute referred to in paragraph 8 of this Order be placed upon the Court file and marked “Exhibit B”.

(10)   That the solicitors for the Independent Children’s Lawyer do engross the minute and provide a clean, duly certified copy of the same (“the copy”) to the Registry of this Court electronically within two days.

(11)   That upon delivery of the copy to the Court, the within orders be extracted and the copy be attached thereto.

IT IS NOTED:

(12)   That all of the orders in “Exhibit A” and “Exhibit B” are interim orders and paragraph 7 in the minute marked “Exhibit B” in relation to B are orders of the Court and not orders by consent of the parties.  All of the other orders which are minuted are sought by the consent of the parties.

IT IS FURTHER ORDERED:

(13)   That any changeovers for periods of time which are not expressed to commence or conclude at B’s school occur inside Macdonald’s Family Restaurant at D.

(14)   That the evidence of Ms L on 16 and 17 June 2008 be transcribed and when transcribed be made available to the parties.

(15) That pursuant to section 11F of the Family Law Act 1975 the parties do all acts and things necessary to have the children confer with Ms L, Family Consultant, at a time to be appointed by her as soon as practicable and it is requested that that be on Thursday 19 June 2008.

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

REASONS FOR JUDGMENT

ex tempore

1. These proceedings come before me as competing applications for interim parenting orders concerning the three boys, B born in December 2000, J born in August 1994, and M born in February 1993. 

2. The husband and the wife are both 42 years old, the wife is residing in the former matrimonial home with B (7 years old).  She is employed as a business agent.  The husband is residing in rental accommodation which he has recently taken with the two older boys M (15 years old) and J (14 years old). 

3. The parties commenced living together on 21 February 1987 and separated on 29 February 2008.  At the time of separation J remained in the care of the husband.  B remained in the care of the mother and M was notionally residing with the mother but spent most of his time at the home of friends. 

4. The proceedings were first before me on 23 May 2008, as best I can recall by way of urgent application.  The matter occupied some time by way of reading and submissions on that day.  Such was the magnitude of the facts in issue that, at the conclusion of the hearing, I ordered that there should be no time spent between the boys (who were split between two households) pending the appointment of an independent children’s lawyer and a child and family assessment by a family consultant attached to the court[1].  I made no orders other than to refer the family into the child responsive program so that there could be an assessment by a family consultant of the issues requiring determination and some description of the options available to the parties. 

   [1] [2008] Fam CA 275

5. The first round of appointments for the assessment by the family consultant was fixed for 27 May 2008.  Those did not take place, through no fault of the parties.  The parties were subsequently seen by Ms L on 3 June 2008 and the children and the parents seen on 12 June 2008.  Ms L has prepared a children and parents' issues assessment dated 12 June 2008.  That assessment is in evidence before me. 

6. Apart from the interviews for the intervention by the family consultant last week B has not seen J and M for nigh on three months.  M left the former matrimonial home to live with the father on or about 23 March 2008.

7. A reading of the parties' respective affidavit material shows a highly dysfunctional family life.  There are allegations by both parents against each other of domestic violence, excessive use of alcohol and inappropriate treatment of the children or at least some of them.  Since separation the husband has moved from temporary accommodation into spacious but more expensive rental accommodation.  He has reduced his hours of employment at a time when there has been a substantial increase in his outgoings.  He says that he can now only pay the rent on his own premises and the arrears of school fees to Y School but no contribution to the mortgage over the former matrimonial home where the wife resides with the youngest child of the relationship.

8. I have made orders separately in relation to money matters. 

9. As indicated the children and parents assessment is before the court.  Neither party gave viva voce evidence before me, however the family consultant was cross‑examined by counsel for the wife at some length for an interim hearing.  It was a cross‑examination done under circumstances which I am satisfied now with hindsight were difficult for the family consultant.  All cross‑examination was by telephone.  The first period was by landline connection to a family relationship centre in rural Victoria, the second part was unbeknownst to us at the time, with the family consultant by mobile telephone in less than comfortable circumstances, and then today there was further cross‑examination by landline connection.

10. The family consultant identified the issues in this matter as being the children's living arrangements and the need for urgent therapeutic involvement.  No-one takes issue with that description. 

11. At the moment B is not seeing J or M or the father at all and they are not seeing him. 

12. The father and the independent children's lawyer propose that B spend time with the father on an alternate week basis from after school on Friday until the commencement of school on Monday commencing this weekend and then on each alternate Wednesday after school until the commencement of school on Thursday commencing on 25 June 2008.  Otherwise they seek an order that B spend one half of each school holiday as a block period with the husband which would have the effect of B being in the husband's household from Friday 27 June 2008 until Saturday 5 July 2008.

13. The wife opposes those orders and seeks orders that there be no unsupervised time between B and the father or the brothers until the family has undergone therapy and the matter can be reviewed in approximately two months.  In the meantime she proposes that the boys can spend time under the supervision of her mother at some time on Saturdays which his agreeable to her mother.

14. The parties have been able to agree on the time and parenting arrangements for M and J at least on an interim basis.  They are to be commended for that.  M and J are to live with the husband until further order and are to see the wife and B each Tuesday evening for dinner to be extended to an overnight stay if either or both of the boys want to do so.  The time for J is not to commence until the parties agree that it should, or alternatively a family therapist recommends that it commence.

15. The input of the family therapist into the commencement of J spending time with the mother arises because it is agreed that the mother and J share a particularly difficult relationship.  J has been assessed independently of these proceedings as having anger management problems, and his relationship with the mother has been highly conflictual.  The independent children's lawyer through her counsel has described the mother's acceptance that her time with J has to be reintroduced carefully to reflect insight for which she is to be commended. It is said that it reflects an admirable preparedness on the part of the mother to accommodate and try to improve on their differences.  I agree with that submission.

16. The evidence of the family consultant will be transcribed.  I will not repeat it here.  It is to be remembered that the family consultant's issues assessment is not a family report in the nature of what the court and counsel are accustomed to receive.  In fact it is not a forensic investigation at all.  It is little more than a preliminary view, the purpose of which is to identify the relevant issues and what issues the parents could apparently agree upon and to establish what options the parties have to avoid progressing further through the court system.  It is to be used as a tool or opportunity for the parties to negotiate an outcome acceptable to them and to put on record what they think their competing issues are.  It was not intended to be and it is not a forensic family report.  It is investigative only up to a certain point which is based largely on what the parties tell the family consultant. 

17. The family consultant has recorded on page 4 of the assessment the following:

    SUMMMARY

    It is difficult to know what to make of [the mother and the father’s] current capacity to prioritise the children’s needs.  They both clearly love their children, however all three children are significantly affected by their family life and recent family break down.  [M], [J] and [B] are sad, polarised and distressed, and it would appear that above everything else, they are clinging to each other as a sibling group to make sense of their family breakdown and changed world.  Their interactions with each other are best described as heart wrenching.  The priority is clearly of the siblings to start spending time together immediately and frequently.  Similarly, [B] is desperately missing his father and needs to be having substantial and significant time with [the father].  Given [M]’s and [J]’s ages and expressed wishes, it is in their best interests to remain living with their father.  It is likely that therapeutic counselling is the only thing which will assist these two boys to slowly heal their relationship with their mother.  It is also likely to be in [B]’s best interests for him to remain living with his mother, however consideration could be given to [B] spending a week with each parent, in the next 7-12 months, once he has settled into and is coping with spending substantial time with his father.

    FUTURE DIRECTIONS

    ·[M] and [J] to live with their father, and to spend time with their mother as agreed between the parties.

    ·[B] to live with his mother and to spend time with his father and siblings from Wednesday overnight to Thursday evening one week and from Friday afternoon to Monday morning the following week.  Although [the mother] was not in agreement, consideration could be given to this progressing to a week about arrangement in 7-12 months, and as advised by a counsellor.

    ·Contact between the parents should be kept to a minimum.  [The father] to collect [B] from school and any other changeovers to occur at a mutually agreed upon public venue.

    ·The family to participate in family counselling at […]. This counselling to include joint post separation counselling for [the mother and the father], and focus on supporting [the mother] to improve her relationship with her 2 oldest sons.  This service could also advise if [B] is able to progress to a week about arrangement in 7-12 months.

    ·If this matter continues in Court, consideration could be give to a Family Report being undertaken following the implementation of these arrangements in 7-12 months.

18. The mother for her part denies that there was any agreement or any apparent agreement as is recited by the family consultant. 

The law

1. I must consider the s 60CC matters that are relevant, as to boys’ best interests, and if possible, make findings about them (although again it must be acknowledged that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).  Section 60CC(2) sets out the primary considerations, s 60CC(3), the additional ones. 

2. Section 60CC(2)(a) requires me to consider that the benefit to the children  of having a meaningful relationship with each parent. This is not a contentious issue. It is common ground that the boys will continue to benefit from having, a meaningful relationship with both parents. The contentious issue is how much time B should spend with his brothers and father in the immediate future in order to maintain the meaningful relationship he has with them without undermining the relationship which he has with the mother. It is the mother’s fear that the older boys have been turned against her unfairly and to their detriment and that, if B spends time with them, he will be persuaded against her as well.

3. Section 60CC(2)(b) requires me to consider issues of physical and psychological harm and abuse or exposure to family violence. Unfortunately, these loom large in this case.  Each parent makes allegations of domestic violence and abuse against the other.  At this point the two oldest children make allegations against the mother.  There has been tendered in evidence some correspondence which is consistent with feelings of remorse about inappropriate verbal exchanges by the father directed to the mother. However, at this interim hearing stage, there is simply insufficient evidence and ability to test evidence for me to be comfortable to make findings.

4. It is common ground, however, that this family is highly dysfunctional and that the dysfunctionality appears to have existed well before separation. 

5. In relation to the additional considerations I will discuss only those which I consider are relevant to my disposition of these proceedings in relation to B. 

6. B is described by the family consultant in the following terms:

   [B] is an energetic and talkative 7 year old boy who described feeling very sad about not seeing his brothers and father.  When asked to elaborate on this he stated ‘I’ve thought about it…I wanna live with mum 4 days and dad 4 days…that would be enough for me to see dad and my brothers enough and stop crying’.  When asked when he cried, he stated ‘at night…I look at photos of dad and [M] and [J] and I cry a lot in bed’.  He stated that his mother knew that he cries at night ‘but she doesn’t like me talking about them’. B said that he missed his brothers ‘cuddles and playing…doing stuff all together’.  He had many positive things to say about his mother, and emphasised that he wished to continue living with her, however his focus was clearly on missing his brothers and father.  When the writer stated that I would tell the judge what was important to him, he stated ‘tell the judge brothers should be together’.

7. The wife takes issue with the fact that B cries at night or cries a lot in bed.  She says that he is an active capable seven year-old-boy who is sad about not seeing his older brothers but she disputes that he is as burdened as the family consultant's description would indicate. 

8. In determining what is in B’s best interests I should consider amongst other things any views expressed by B and other factors which I think are relevant as to the weight to be accorded to his views.  B has clearly told the family consultant on 12 June 2008 that he wishes to spend time with his brothers and father, that he misses them to the extent that the family consultant describes as "heart wrenching".  He told the family consultant that he would like to spend four days with his mother and four days with his father.  B is however a child of only seven years and, at that age, I am not inclined accord much weight to his express views.

9. I do note, however, that B’s comments to the family consultant indicate that he regards himself as part of a fairly close family involving his older brothers.  He is very sad and somewhat lacking in understanding of why he is not able to see them.  He wants to see more of them and, I am prepared to infer, that he wants to do so as quickly as possible.

10. I take into account the relationship between B and his parents respectively and his older siblings.  I am satisfied that he has a strong relationship with both the husband and the wife and with his older brothers.  There is in fact no contest about the quality of the relationship which he has with either parent.  From the wife's point of view it is the extent to which B can be insulated from the risk that she perceives of alienation from her.  That is the gist of her case. Put another way, the wife does not contend that B ought not have a relationship with the father or with his brothers, she says that that relationship or the time he spends with his father and brothers has to be structured in such a way so as not to compromise B’s relationship with her. 

11. I take into account the preparedness of the parties to promote a relationship with the other.  The family consultant has recorded that the father states that he is prepared to promote a relationship between the two older children and the mother, and that when brought into the counselling environment by the father M at least appeared to be happy to be with his mother, said that he loved her and missed her.  Against those statements and observations made on 12 June 2008 is the fact that the boys have not seen their mother in the last three months or so.  There are arrangements now that M will be seeing the mother on a regular basis and, if that regime works, it may be a good indicator of the husband's bona fides and abilities in this regard. However, it is early days and I am cautious about accepting at face value the father’s assurances about promoting a relationship between the boys in his care and the mother against a background of the boys not having seen the mother for three months and the father having apparently done nothing to alter that situation.

1. The wife is not saying, as I understand it, that she is not prepared to promote a relationship between B and the father and the brothers, she just says it has to be done safely and conservatively.  The wife’s case is that there should be no unsupervised time between the father and the older boys and B until the "family has undergone therapy".  She says that the therapy can start with initial interviews as early as this week and the matter can be returned to court in two months time. 

2. With all due respect to the wife and those who advise her that seems to be to be a largely unrealistic view of therapy, how it can start and what good it can do that anything of the magnitude that this family needs could be achieved via a community agency in two months time.  However, I do not find that the wife's proposal is put in bad faith. 

3. The wife’s proposal is that, in the meantime, the children can have time together supervised by her mother, the maternal grandmother.  It is conceded, however, that up until March of this year the mother and the maternal grandmother were estranged.  It does not matter on what the estrangement between the mother and her own mother was based.  The fact is that the boys have not had a familiar and ongoing relationship with the maternal grandmother.  It follows that the proposal that the three boys spend time with the maternal grandmother does, in my view, indicate a lack of insight on behalf of the wife.

4. I take into account how the parties have discharged their responsibilities as parents.  The wife is remaining in the former matrimonial home.  It is to be sold in the short term after being renovated in accordance with a proposal of hers to enhance the value of the home.  The husband has moved.  He has moved into premises which he says are appropriate for the children.  I am concerned that the husband has elevated his desire to pay a longstanding debt to the school above seeing that the wife has adequate financial support.  The wife is employed but not to the same extent that the husband was prior to separation.  My assessment of the parties’ responsibilities as parents is something that must be informed by direct evidence and is best assessed at a final hearing.  In the meantime, my impression is that the husband is prepared to finance his household to the exclusion of the wife’s household.

5. So, the major concern of the wife is that B not be alienated from her, that her relationship with B not suffer as a result of B seeing M and J and "Coming under the influence of the husband" as she would put it.  Counsel for the wife cross‑examined the family consultant at some length.  It was put to the family consultant that the older boys had largely adopted views consistent with those of the husband and appeared to be saying things to the counsellor which would be very supportive of the father's case if not in words that the father would use.  The family consultant did not agree that the boys had been unduly influenced by the father.  She said that she saw no signs of it.  For my part I think it is difficult to imagine that these boys would not have come under considerable influence from the only parent with whom they have been living for some months on end, and I accept the observations of counsel for the wife, that the descriptions by the older boys of the mother at pages 1 and 2 of the report do seem to be somewhat adult observations and directed at the husband's cause rather than of their own.

6. The family consultant agreed with counsel for the mother that the safest and most conservative option would be to postpone any time to be spent by B with the father and the older boys until after there had been some therapy.  However, M is in full‑time employment, J attends school and B is not seeing either of his brothers.  Ideally the boys could be taken into some form of therapy immediately and it would be ongoing and intensive, but those ideal circumstances are not available to us.

7. The family consultant opined that the next best alternative was for the older boys to spend specific periods of each week with the mother and with B, that the introduction of J’s time with the mother be assessed by a family therapist and that B spend regular and frequent time with the father and the older brothers. 

8. As I have said I cannot make findings of fact about many of the contested matters in this case.  However, I think it is uncontested that there is a polarity and a division within this family that makes me particularly cautious about the rate at which B is to spend time with his older brothers and father.  I am satisfied that preserving and maintaining the relationship that B has with the mother is imperative.

9. Having considered the above matters and the evidence of the family consultant, I am persuaded that it is in B’s best interests to proceed with a regime of time more or less as sought by the independent children's lawyer and the father.  This would be subject to the proviso that if B is not returned to the mother without reasonable excuse then the matter can be re-listed immediately before me (if practicable) for the mother can make application for a suspension of any time between B and the husband.  I make this comment here because I intend all parties to be on notice that, in the event of allegations that parenting orders are not complied with, the matter can be re-listed prior to and in anticipation of an application being filed.

10. I will not accede to the proposal of the independent children's lawyer and the father as to school holiday time.  The regime of time on an alternate week basis can continue except during the holidays in the off week which would be a Wednesday night until the commencement of school on Thursday.  That can be a Wednesday night until 5 pm the following Friday, that extends it by an extra day.

11. I am satisfied that orders in these terms are consistent with B’s best interests.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: …

Date:  20 August 2008