Farmer and Farmer

[2007] FamCA 1084

FAMILY COURT OF AUSTRALIA

FARMER & FARMER [2007] FamCA 1084

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Farmer

RESPONDENT: Ms Farmer

FILE NUMBER: AYC 340 of 2007

DATE DELIVERED: 28 August 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Cronin J

HEARING DATE: 28 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wheeler

SOLICITOR FOR THE APPLICANT: Loretta Terrill Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Belbridge Hague

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Wearne

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid NSW

Orders

1. The parties and their lawyers attend a pre-trial conference on 22 November 2007 at 2.15pm in Melbourne with a registrar.

2. The parties and their lawyers on the record, attend a conciliation conference with a registrar in Melbourne at 11.00am on 22 November 2007.

3. By no later than 4.00pm on 15 November 2007, each party exchange all documents containing evidence about:

   (a)    the financial matters mentioned in the financial statements of each party;

   (b)    the financial contributions made at the commencement of cohabitation;

   (c)    any inheritances, gifts or compensation payments received during cohabitation;

   (d)    any purchase or disposal of property in the twelve months prior to and subsequent to, separation;

   (e)    the payment of any liabilities at the time of separation;

   (f)     any increase or decrease in any liabilities subsequent to separation; and

   (g)    the value of any superannuation interest of any party.

4. That by 4.00pm on 21 September 2007, the husband file and serve any amended application for final orders.

5. That by 4.00pm on 5 October 2007, the respondent file and serve any amended response to the husband’s application for final orders.

6. That the husband file and serve any affidavit material upon which he intends to rely by no later than 4.00pm on 26 October 2007.

7. That the wife file and serve any affidavit material upon which she intends to rely by no later than 4.00pm on 9 November 2007.

8. That the husband and the wife each file and serve a financial statement by the dates referred to in the foregoing paragraphs in the event that any financial statement thus far filed by them is not up to date.

9. That by 4.00pm on 9 November 2007, each party file an undertaking as to disclosure pursuant to Rule 13.15 of the Family Law Rules 2004.

10. That each party file a compliance certificate by no later than 4.00pm on 14 November 2007.  The compliance certificate may be filed by facsimile transmission to the fax number of the Family Court of Australia, Albury Registry Fax Number (02) ….

11. That the husband and the wife and the children of the marriage attend upon a family consultant at Albury on a date to be fixed in October 2007 for the purposes of the preparation of a family report under s 62G(2) of the Family Law Act 1975 (Cth), such report to be released to the parties by 20 November 2007.  For the purposes of completing the family report, the family consultant has permission to inspect the court file and all documents produced on subpoenae once permission to inspect is automatically allowed under Rule 15.30(4) or has been granted to a party or the Independent Children’s Lawyer. 

12. That subject to any direction of the Registrar at the pre-trial conference to the contrary on 22 November 2007, this matter be given as much priority as possible on the basis that it is an interstate relocation matter.

13. That:

    (a)    the report of Mr C dated 26 June 2007 be marked as Exhibit “A”;

    (b)    the report of Dr F dated 26 June 2007 be marked as Exhibit “B”;

    (c)    the minutes of proposed orders of the wife be marked Exhibit “C”;

    (d)    the minutes of proposed orders of the husband be marked Exhibit “D”; and

    (e)    the minutes of proposed orders of the Independent Children’s Lawyer be marked Exhibit “E”,

    and all such exhibits remain on the court file.

14. That until further order the children M born … April 2004 (“[M]”) and B born … March 2006 (“[B]”) live with the parties as follows:

    (a)    with the wife from 11am each Sunday until 5pm each Wednesday commencing Sunday 2 September;

    (b)    with the husband from 5pm each Wednesday until 11am each Sunday commencing Wednesday 5 September;

15. That until further order Order 14(a) is conditional upon:

    (a)    the mother residing in the Albury-Wodonga area;

    (b)    The maternal grandmother, or maternal aunt, being present with the wife and children for the first six (6) block periods that the children are living with the wife;

    (c)    The wife consulting and continuing to consult, Ms K Psychologist, at such frequency and for such duration as Ms K directs;

16. That until further order each party continue to seek medical treatment for the children from:

    (a)    General Practitioners at X Medical Group;

    (b)    Dr C, Paediatrician;

    (c)           Dr F for M’s epilepsy management

    and that they be restrained from consulting other medical practitioners with respect to the children’s medical needs except:

    (d)    in an emergency; and

    (e)    as they may be referred to by any of the practitioners in 16(a) – (c) above.

17. That until further order that each party ensure that the children continue to attend the E Child Care Centre as and when required for day care and occasional care.

18. That until further order the parties continue to use the changeover facilities offered by the Albury Wodonga Children’s Contact Serve AND IT IS NOTED THAT the husband and the wife have already completed AWCCS’ intake procedures.

19. That IT IS DIRECTED that the Independent Children’s Lawyer provide a copy of my reasons and the orders this day to Ms K.

20. That IT IS DIRECTED that these reasons be transcribed and be made available to all parties.

21. Liberty to all parties to apply but specifically to the Independent Children’s Lawyer in the event that the transfer of these proceedings to the Victoria necessitates at change of Independent Children’s Lawyer for funding purposes.

22. That IT IS DIRECTED that the documents provided by the Department of Human Services pursuant to a subpoena be returned forthwith to the Department.

23. 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.

24. That all interim applications be otherwise dismissed.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: AYC 340 of 2007

MR FARMER

Applicant

And

MS FARMER

Respondent

REASONS FOR JUDGMENT

1. The interim parenting proceedings concern M who is three and B who is almost one a half.  The dispute centres around what time each parent will spend with these children and, more importantly, under what conditions or circumstances.  Underlying all of this is the wife's desire to relocate from the Albury-Wodonga area to Sydney.  Each parent says of the other that they wish the children to have a significant involvement in the life of the other parent but each then expresses concern about the capacity of the other to be that responsible parent.  Each views the capacity issue differently.

2. One thing which is clear is that there has been a significant and traumatic breakdown of the functioning family and that gives rise to two things:  First, the continuation of the litigation between the parents will require findings of fact to be made which may have a critical impact on who is to be the responsible parent in the future, notwithstanding the orders that I have made.  Secondly, the children are caught in a tug of war to such an extent that on either party's proposal, they are going to be shuffling backwards and forwards, interspersed with slabs of time in child care whilst the parents work.

3. At the outset, having made those observations, it is important to stress the following. First, I cannot determine issues of fact on untested evidence, nor should I. Secondly, I am required to determine the interim short-term future of these children not only on the basis of what is common ground, their respective proposals along with those of the Independent Children's Lawyer but also my own subjective judgment about what is in the best interests of these children. Thirdly, notwithstanding that parliament has set out the presumption of shared parenting, I need to address whether that can realistically be determined in this case. Fourthly, there are disputes here about not only what is evidence but also what procedure should be followed because of the introduction of Division 12A of the Family Law Act 1975 (Cth) (“the Act”); that is, even though the parties want to call a whole raft of evidence, subject to the dictates of natural justice, I have to decipher what is relevant and what will assist in the overall determination. 

4. Fifthly, Division 12A of Part VII sets out five principles. The first is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings; secondly, that the Court is to actively direct, control and manage the conduct of the proceedings; thirdly, that the proceedings are to be conducted in a way that will safeguard

   (a)the child concerned against family violence, child abuse and child neglect and

   (b)the parties to the proceedings against family violence.

   Fourthly, the principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal, technical and form as possible.  It is the fourth principle that troubles me most here because the wounds of separation are still raw. 

5. By way of background, the husband who is the applicant is 30 years of age.  He is an instructor employed by a government contractor. He earns about $60,000 a year.  His parents live in Melbourne but are very supportive.  The wife who is the respondent is 31 years of age.  She is a teacher.  Apart from periods of maternity leave, that is her chosen profession.  Her mother and sister reside in Sydney.  Her mother will attend the Albury-Wodonga area for a six-week period during her own leave of absence from school to assist the wife.

6. The parties began living together in 2001.  There was some evidence from the wife about the unusual circumstances of the commencement of the relationship but it has not assisted me, nor has it been taken into account.  The parties married in September 2002.  Chronologically, the marriage ended at the time of separation on 18 May 2007 but I think much more needs to be said about that period of time and I suspect it will be the future focus of cross-examination.  As I have said, I am not determining issues of disputed facts but there are some inferences that I can and do draw from what I have read.  Before turning to those facts, it is important to understand the sequence of events that commenced the litigation path.

7. On 31 May 2007, the husband sought and obtained a recovery order from the Wodonga Magistrates Court on an ex parte basis.  Bearing in mind firstly the husband's own evidence that he had agreed for the wife to go to Sydney with the children, secondly the very tender ages of these children and thirdly the probability that the children were in the company of the wife's extended family whom the husband knew, it was inappropriate to seek, or for that matter for the Court to issue a recovery order.  The appropriate course of action would have been to have sought and obtain an order that the wife return and deliver up the children to the area from whence they had come so that the children's future could be determined. 

8. More importantly, these types of orders should not be made on an ex parte basis.  There was ample justification here for an expedited hearing but not any basis for an ex parte one.  In saying that, I am conscious of the tyranny of distance and the shortage of resources of this court and the Federal Magistrates Court, but with children involved, a careful analysis needs to be taken in line with the five principles I have just mentioned, as well as principles of natural justice.  It just may be in this case that this sort of procedure is contrary to a number of the five principles and that simply exacerbates the problem for the children, let alone the family. 

9. Both parties in these proceedings were very well represented and provided a plethora of affidavit material which has been drawn to my attention.  An order had been made for the appointment of an Independent Children's Lawyer and I was assisted not only by her proposals but also her drawing my attention to some of the objective evidence.  The underlying problem of the wife's desire to move away to Sydney has abated temporarily because she has obtained accommodation and employment in the Albury-Wodonga area.  I shall endeavour to provide resources so that that issue can be determined as quickly as possible.  However, I am also mindful of the fact that the expert witnesses and the assets of the parties are also in the Albury-Wodonga and/or Melbourne areas.  I have made orders to cover those contingencies.

10. The children also have their own unique difficulties.  I have had the benefit of a report from Dr C who is a paediatrician.  In respect of M, he reported that he and the professionals in Melbourne at the Royal Children's Hospital are managing her epilepsy.  It is an uncommon seizure type which is fortunately a mild form.  M requires medication and regular paediatric and neurological review.  That requires, in turn, significant involvement and vigilance on the part of both parents.  Dr C reported no parenting concerns in his many dealings with the wife, with whom he mostly dealt.  He acknowledged the husband's involvement on a couple of occasions.  In respect of B, Dr C noted infrequent episodic asthma bouts.  He referred to B's excellent response to what he described as usual asthma treatment.  Like M, in itself this adds to the vigilance required of both parents. 

11. The facts about the latter stages of the relationship from each party's perspective seems to be as follows.  The husband said that the wife told him on numerous occasions that she could not cope with the children in the Albury-Wodonga area.  He said the wife regularly threatened suicide and that some of the threats included involving the children.  Because of what he described as her mental state, she had been attending counselling.  After a discussion in May 2007, the wife had taken the children to Sydney to stay at the home of the wife's mother, and despite his request for her to return the children home, she said she was staying.  That precipitated the proceedings.  He said the wife could not cope with caring for the children and that there was much screaming until he calmed the situation.  He asserted the wife had an anger-management problem. 

12. He referred to an incident in 2002 wherein the wife received stitches after cutting her wrist but there are so many other factors involved in that incident that I do not accept I should consider it relevant.  However, the husband used that incident as a springboard to say that the wife continues to threaten to take her own life.  He described much yelling and argument but denied ever hitting the wife.  He had restrained her to protect himself.  He referred to the fact that both parties had had counselling which had not improved the situation.  In respect of the future care of the children, he said he was able to work around the needs of the children.  The finer details of that probably do not matter now because both parties seem to say by their proposals that the other can find time to parent, even if it requires the assistance of day care.

13. The husband, however, urged me to order a psychiatric evaluation of both parties.  When I raised the question of the power to order that, counsel for the husband said that the husband's proposals for the wife to spend time with the children were conditional upon the wife undergoing the psychiatric evaluation.  In addition, the husband sought that the wife's time with the children be specifically supervised by her mother or sister.  The supervision issue arises because of the facts to which I have just referred and to which I shall return but also because in earlier proceedings the wife agreed to that arrangement and undertakings were given by the mother and the sister. 

14. The husband also relied upon his father's two affidavits which corroborated his evidence.  The grandfather referred to observations of his son trying to shield the children from their mother's rage.  He said his son had telephoned, reporting many phone calls about the wife threatening to kill herself.  There was nothing negative reported about the husband.  Mr H is a neighbour of the husband.  His evidence added little to the resolution of the immediate problem.  Ms S purported to be a friend of the wife yet filed an affidavit on behalf of the husband.  She said the wife told her she was considering suicide on or about 19 May 2007 and that she wanted to go home to her mother because she could not cope with the children on her own.  Ms S asserted that the wife said she was needing to create a case of domestic violence against the husband to enable her to go to Sydney. 

15. I have to balance this evidence against the wife's denials plus the evidence of the material in the Department of Human Services file that shows that the otherwise rosy family picture was not necessarily so.  I have also the contrasting version of the husband and wife that at the time Ms S reported, there was in fact an agreement that the wife should go to Sydney with the children.  The dispute was for how long and for what purpose.  The wife's evidence predominantly comes from herself.  She accused the husband of emotional criticisms of her about many things but also a series of violent issues in which she asserts he was the perpetrator.  What she said but what the husband did not accept was that the parties had involvement with the Department of Human Services in the middle of 2006.  This apparently came about after the wife sought assistance on a help line.

16. I have already indicated that I am not in a position to make any findings about factually disputed issues.  However, the matters raised by the wife are serious and seem to me to affect both parties depending upon their truth.  The violence alleged, which is denied, relates to serious assaults, and the husband not only denies the various incidents but asserts violence by the wife.  In respect of the children, the wife set out in her affidavit her comprehensive involvement as a parent and in particular her attendances upon doctors relating to the children.  That to a large degree was corroborated by the paediatrician.  The husband, however, was working as the primary income-provider, so his time was restricted, but it was the wife who set out all of the needs of the children arising out of their medical problems.  It is clear now that the husband can and is doing whatever is needed for the children in that regard and is to be complimented for that.

17. As for the future, the wife has returned to the Albury-Wodonga area, has rental accommodation and employment.  Until separation, the children attended the E Day Care Centre when both parents needed assistance for work purposes.  The husband no longer uses that centre but the wife proposes a return there.  Although I understand the husband's reticence about the E Centre, what I found attractive was that it has epilepsy accreditation, which for at least the short term is important for both parents who will be away at work.  In respect of the wife's evidence about her own health, her perception was that her counselling related to domestic violence issues.  She is now attending upon Ms K, who is a psychologist, for what the wife called her anxiety and emotional difficulties.  The question of the wife's own view about her suggested suicide ideation is somewhat vague and I prefer to rely more upon what I have read from a Dr W.

1. The wife's sister and her mother filed affidavits.  Not surprisingly, they supported the wife's version, including reporting their concerns about the husband's behaviour that his own family had not observed.  The wife's mother has had a significant involvement in the lives of the grandchildren and she disagrees with the views of the paternal grandfather.  It is a pity that the respective grandparents cannot get together to work out a positive solution for their own grandchildren.  The wife's mother has offered to assist by being with the wife for the next six weeks.  Needless to say, she does not see any significant psychological problems that are not being addressed.  Ms R is a friend of the wife who says the wife acknowledged saying something about killing herself but she did not believe the wife would do any such thing.  In essence therefore, I have the two sides lined up, pointing the finger at each other. 

2. The wife went to Dr W who is a clinical psychologist.  In the normal course of events, this expert evidence could not be admitted, but having regard to the immediate concerns about the wife's capacity to care for the children and the husband's assertions that they are at risk, I proposed and did admit the material.  Dr W clearly comes from a partisan perspective but has administered professional tests.  She reiterated much of what the wife told her.  It goes without saying that Dr W could not objectively test the truth of what the wife said, nor did she see all of the relevant participants in this dispute. 

3. Dr W said that the wife told her that on the night she learned of the husband's desire to separate, she wished she was dead.  However, the wife added she was horrified about the allegation she was thinking of killing the children.  Dr W observed and opined the wife had symptoms of tension, anxiety and depression.  In her conclusions, Dr W said the wife appeared to have sunk to a depth of despair where she considered suicide but then added that it was very doubtful that she ever contemplated consciously killing her children. 

4. Dr W said the wife's protective mechanisms continued to be her secure attachments with her mother and her siblings.  What would happen if those attachments were removed is not clear, but Dr W felt that the wife's dependent personality features did not justify a diagnosis of a disorder.  In a loaded question, Dr W was asked whether it was in wife's interest to remain in the Albury-Wodonga area and she responded that it would be most unwise because she would benefit from being in Sydney with the strong emotional support of her family.  Dr W opined that the wife would benefit from therapeutic intervention.  That now seems to be happening.

5. Against this evidence I have to contrast the wife's agreement to remain on an interim basis and the husband's consent to having the wife have a significant involvement in the lives of the children, subject to the assessment of a psychiatrist.  Whilst Dr W has raised the issues of what the wife said about suicide ideation and her need to have the support of her family, I do not believe there is any evidence upon which I could justify a conditional parenting order.  I too would be ultimately assisted by an independent diagnosis from a psychiatrist but I would have thought that might be about the issues of depression, issues of dependence on the extended family and wife's own paranoia.  Dr W did not see the children being at risk, and with the involvement of the new psychologist, I feel there is a sufficient monitoring at this stage of the wife's mental health. 

6. Much has been made by both sides of the disputed facts about violence.  What is clear is that in the last 12 to 18 months, the marriage relationship has been dysfunctional.  The Department of Human Services file is enlightening.  The Department of Human Services became involved in July 2006 with a home visit.  The parties were still together at this time.  According to the file, the wife detailed her concerns about escalating violence but the department felt that there were no protective concerns regarding the children, notwithstanding the parties were still together.  On the following day the wife reported that the husband and wife were discussing the issues that she had discussed with the workers the day before.

7. When the husband was interviewed the following day, the department reported that he spoke openly about the violence.  What that means is hard to say, but the husband said he was willing to attend a men's behavioural change program and also relationship counselling.  Two weeks later a meeting occurred with the husband and wife together.  The husband is recorded as saying he did not realise the children may have heard and been affected by the verbal and physical arguments.  There is no clear and unequivocal statement about the role of each party to that point in time.  However, both were committed to change, whatever was causing the problem.  Sadly, that resolution for change seems to have held for little time because for some months the parties had various counselling. 

8. The serious incidents seem to have calmed down until the breakdown of the communication in May 2007.  At that time the wife says the husband told her the relationship was at an end.  The husband reported in his affidavit the wife saying, "I'd like to put the kids in a car and drive them off a cliff," yet he then said in a very general way, "Why don't you take a week off work and go and stay with your mother and sort yourself out?"  Notwithstanding all that had preceded that, he was content for the wife to drive to Sydney with the children. 

9. In any case the Court has to make any parenting order based upon what is in the best interests of the children.  The presumption of equal shared parenting does not apply in an interim proceeding if I am satisfied that I cannot make findings and do not have information to determine whether it should be applied.  The presumption is also rebutted by evidence of violence or if I am satisfied that it is just not in the children's interests for it to be applied.  I find that I do not have enough information or evidence to be confident about the presumption.  However, with the current state of the parties' relationship, I could not be satisfied that they could work collaboratively in the interests of their children, even in respect of the serious medical issues.

10. To assist me, therefore, to make a decision, I need to turn to the s 60CC factors.  The primary consideration that is relevant here is that the children are protected from physical and psychological harm.  I am satisfied that the separation of the parties to some extent alleviates the potential conflict but there are two other areas of concern.  The first is that too many changeovers where there is a prospect of confrontation and conflict cannot be good for these children at this time.  The contact changeover service may alleviate that problem.  The second problem is that if the wife's depression and anxiety causes a deterioration of her health to the extent that she harmed herself that would in itself have at least a deleterious emotional impact on the children.  Notwithstanding the partisan views of Dr W, I am still satisfied that there is in place a counselling the therapy regime to monitor the wife's progress.  I propose to order that the therapist have access to these reasons to indicate my concerns.

11. I have also contemplated the other additional factors in s 60CC.  The views of the children at this stage are not something that can be taken into account, having regard to their ages.  The issues of domestic violence cannot be determined without evidence being tested.  The capacity of the parents does not seem to be an issue for either.  Both say they want the other involved in the lives of the children.  The attitude to parenting leaves me puzzled at the moment because of the unclear period from the first involvement of the Department of Human Services.  Something has occurred, despite all of the intensive counselling, to cause the relationship to falter in circumstances where both parents talked positively to the department 12 months ago about the other party.  I am not able to make any finding about this issue without the evidence being tested. 

12. The other issues in s 60CC are not particularly relevant or helpful.  Whilst I have expressed some concern about the initiating process, I am now satisfied that for the purposes of s 60CC(4), both parents have availed themselves of the time with the children and have encouraged the ongoing involvement of the other parent.  Accordingly, I am left with three proposals which basically have no scientific basis.  Counsel for the wife urged me to order an equal sharing of time such that mathematically, I could not distinguish between the husband and the wife.  To do such an exercise, by reference to precise time, to calculate half does not seem to me to be in the children's best interests but rather in the interests of the parents. 

13. Counsel for the husband urged me to set up a regime which gave parties a weekend each and various daytime combinations.  That too may be a longer term solution but it gives rise to a number of changes, some of which cannot be under the watchful eye of the contact centre.  Too many changes along with the day care facilities must create confusion and an unsettled environment for these children.  The Independent Children's Lawyer said just to simplify the time by using the contact centre as a point of exchange.  There was no mathematical calculation but rather a division based on limited handovers and the children not being away from the other parent for too long. 

14. I prefer the Independent Children's Lawyer's position.  However, the Independent Children's Lawyer said that on Sundays the changeover should occur at 11 am.  The exact times really need to fit around the contact centre's availability.  I propose to make the time 11 am to ensure that each weekend the parties get at least the best part of the day with the children when they do not have to work.  Interested extended family members who also only have weekends off from work can fit around the children in the interim period rather than the children around them. 

15. Notwithstanding my hesitance about the objectivity of some of Dr W’s recommendations and opinions, I do see the sense in the Independent Children's Lawyer's suggested orders.  In this case the wife's mother has agreed to come down and stay, and the wife has agreed to orders about her ongoing medical treatment.  In those circumstances I will make those orders.  I also understand that the parties will continue to at least have a united front about the medical treatment of their children.  I propose to make orders that will restrict the parents accordingly.  I have already mentioned the day care centre.  I appreciate the husband's sensibilities but I am more concerned about E Day Care Centre’s accreditation.

16. The other question is a family report.  I think a trial judge would benefit from having one but that seems to have become contentious.  I propose to order one be prepared by the family consultant in Albury.  The parties also have modest but unresolved financial and property issues.  They have not had a conciliation conference.  That needs to occur, as does a trial notice, so that the whole matter can be heard expeditiously and in one hearing.  I have made orders today for the trial notice process.  I also indicate that in my current thinking, having regard to the number of witnesses involved and the issues that are still at stake, this is not a matter appropriate for the circuit.

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

Associate: …

Date:  17 September 2007