Fearne and Fearne - [2012] FMCAfam 920

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEARNE & FEARNE

[2012] FMCAfam 920

FAMILY LAW – Interim arrangements for care of children aged 9 & 4 – best interest – parties have poor parenting relationship – application of presumption of equal shared parental responsibility – consideration of section 60CC factors – children each have special needs – overnight time.

Family Law Act 1975, ss.60CC; 61DAA; 65DAA

Applicant:

MR FEARNE

Respondent:

MS FEARNE

File Number:

ADC 3796 of 2011

Judgment of:

Brown FM

Hearing date:

16 January 2012

Date of Last Submission:

16 January 2012

Delivered at:

Adelaide

Delivered on:

16 January 2012

REPRESENTATION

Counsel for the Applicant:

Ms Du Barry

Solicitors for the Applicant:

Pederick Lawyers

Solicitors for the Respondent:

In person

Solicitors for the Independent Children’s Lawyer:

Legal Services Commission of SA

Counsel for the Independent Children’s Lawyer:

Mr Kent

ORDERS

The parties’ competing parenting and property application be fixed for final hearing before Federal Magistrate Brown on 6, 7 & 8 June 2012 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
The Independent Children's Lawyer commission a Family Assessment Report, to be prepared by an expert as nominated by him, with the report to be obtained at the joint expense of the parties and completed no later than 26 April 2012.
The matter be listed for further directions following the Financial Mediation Conciliation (listed for 17 February 2012 at 11.00 am) on 2 March 2012 at 9.30 am.

UNTIL FURTHER ORDER OR OTHER ORDER THE COURT ORDERS THAT:

The children of the marriage [X] born [in] 2003 and [Y] born [in] 2006 live with the mother.
The children spend time with the father as follows:
(a)On each Tuesday and Thursday for the remainder of the 2011/2012 school holidays between 9.00 am and 5.00 pm and from 10.00 am Saturday until 10.00 am Sunday on the weekend commencing 21 January 2012;
(b)During school terms as follows:
(i)On each Tuesday commencing 31 January 2012 from after school until 6.30 pm;
(ii)In the first week of each fortnight commencing 4 February 2012 from 10.00 am Saturday until 10.00 am the following Sunday; and
(iii)In the second week of the fortnight commencing 9 February 2012 from after school on Thursday until 6.30 pm the following Friday.
(c)During the end of the end if the first school holidays as follows:
(i)From 10.00 am on 6 April 2012 (Good Friday) until 6.00 pm on 7 April 2012 (Easter Saturday);
(ii)From 9.00 am on 10 April 2012 until 9.00 am on 13 April 2012; and
(iii)From 9.00 am on 18 April 2012 until 9.00 am on 22 April 2012;
Each party inform the other of all illness or injury suffered by the children when in his or her respective care.
The parties inform the other in writing of any medical, dental or psychology appointment arrange for the children.
The children be exchanged between the parties whenever possible at their school but when the school is not available the father collect the children from the mother’s residence at the beginning of time spent and the mother collect the children from the father’s residence at the conclusion of time spent.
The parties utilise a communication book in respect of each alternative week periods of time and each block period of school holiday time to advise the other parent of all relevant issues pertaining to the children, including issues pertaining to their health, welfare and developmental issues.
It is a condition of the father spending time with the children that he be personally available to supervise the children at all times.
Leave is granted to all parties, their legal representatives and the Independent Children’s Lawyer to inspect and copy the documents produced in answer to subpoena to Dr U and Dr B, pursuant to subpoena filed 30 November 2011 subject to any privilege claimed. Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses. Leave is granted on the condition that all copies are destroyed at the conclusion of the matter.
Each party make all necessary enquiries to enrol at the KidsAreFirst program and make enquiries as to completing a course and undertaking the first available course which is available to each of them. The parties need not attend the same course.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3796 of 2011

MR FEARNE

Applicant

And

MS FEARNE

Respondent

REASONS FOR JUDGMENT

The reasons for judgement were delivered ex tempore, immediately following the interim hearing. The reasons have been revised from the transcript.
The matter of Fearne is listed before me this afternoon. The parties to the proceedings are Mr Fearne and Ms Fearne. They are the parents of two children: [X], who was born [in] 2003 and [Y], who was born [in] 2006.
These reasons for judgment should be considered in conjunction with the other detailed reasons for judgment, which I provided to the parties on 20 October 2011.
Those earlier reasons for judgment related to an application that

Ms Fearne, to whom I will refer as the wife, made in respect of the sole use and occupation of the parties’ former family home, which is situated at [omitted] in [H]. .
At the time of that application, Mr Fearne was about to be discharged from hospital. He had fractured his pelvis, as a result of being involved in an [omitted] accident. It was his position at the time that it was reasonably practicable for him to return to the [H] home and live there whilst it was also occupied by Ms Fearne and the two children concerned.
From the wife’s perspective that was unacceptable. It was her case that Mr Fearne had injured himself because he had been behaving in a strange manner prior to the accident. Essentially it was her case that he had injured himself when he was behaving in a threatening manner towards her. This was a matter which was denied by Mr Fearne.
The wife’s position, at the time, was that come what may it was untenable for her and the children to live at [omitted] in [H] and she would be making her own arrangements. At that time there was no dispute, I think, between the parties, that [X] was a child with special needs.
I was concerned at the potential disruption to the two children if the wife had to move and at that stage there was no dispute that

Mr Fearne, due to his injuries, was not in a position to parent the children.
For that reason, I made an order that the wife have the sole use of the parties’ former matrimonial home. At the time I was well aware that that was highly controversial, certainly so far as Mr Fearne was concerned.
At the time of the orders of October 2011, it was agreed between the parties that Mr Fearne would spend some supervised periods of time with the children on each Tuesday and Thursday, from 3.30 pm until 6.30 pm and again on each Saturday.
The time was to be supervised by either a person called Ms H or one of the husband’s support workers. From the husband’s perspective he conceded the need for such supervision, because he was largely immobile due to his injuries. But from his point of view that supervision was a stop-gap measure until he regained his mobility.
The matter came back before me prior to Christmas. At that stage the wife’s solicitors had ceased to act for her, because of her straitened financial circumstances. The wife filed a lengthy affidavit on the day of the hearing.
The husband objected to what he said was the late filing of that affidavit, which he said was unfair to him. As a consequence, at the stage, for the short to medium term, I made some holding orders, which saw the children spending time with their father during daylight hours, on a regular basis, but I discharged the need for supervision.
On 20 December 2011 I also made an order that the two children be independently represented. The rationale for that appointment was that it was clear to me that the positions of the parties were polarised in the extreme and the parties themselves had a difficult and mistrustful relationship with one another.
There was also no controversy that [X] has special needs. From the wife’s perspective, it was asserted that [Y] also had been recently diagnosed as suffering from autism spectrum disorder. Accordingly, both children are likely to be vulnerable to the on-going conflict between their parents.
At that stage the husband was not in a position to comment on that diagnosis, because it was his position that he had not been consulted in respect of the medical consultations which had resulted in it.
In the longer term, it is the husband’s position that the presumption of equal shared parental responsibility should be applied to the parties and that thereafter it is likely to be in the best interests of the children that they be cared for in a shared care regime, living with each of their parents for equal periods of time.
The wife is opposed to such an outcome. In her most recent amended response, it is her position that she should have sole parental responsibility in respect of major long term issues to do with both children.
At the final stage, she proposes that the children should spend time with their father at such times and on such conditions as may be agreed between the parties and in the interim the children should spend time with their father during daylight hours only on each Saturday, from 8.30 am until 6.30 pm.
I have already indicated to the parties that I will fix the matter for final hearing on 6, 7 and 8 June this year. Mr Kent, who is the Independent Children’s Lawyer, is going to obtain a family assessment report, which is likely to be available to the parties, possibly in late April, early May.
Accordingly, it falls to me to make some interim arrangements for the care of the children between now and the hearing. This period of time will include the end of first term Easter school holidays but, more importantly, will include the first term and a large proportion of the second term of the forthcoming school year.
The husband’s position is that up until the parties separated, which was on the day of his accident or shortly thereafter, he was significantly involved with the care of the children.
As I understand matters, he is a motor mechanic by profession or a panel beater more particularly. He is currently in receipt of WorkCover payments, not as a result of his [omitted] accident, but because, as I understand it, he suffered a psychological injury at his workplace.
The wife’s position is that the husband has all manner of psychological issues, arising both from his own particular personality and psychological makeup, but also as a result of the incident at his work, where he was subject to some bullying and mistreatment. It is her position that the [omitted] incident was a manifestation of this instability.
It is essentially the wife’s position that Mr Fearne is incapable of caring for the children without a great deal of support. It is also her position that, whilst the parties were involved in a relationship, she provided the vast majority, if not all, of the parenting of these two children, who are challenging to parent because of their special needs.
Ms Fearne has major concerns about what is the present position regarding Mr Fearne’s psychological state. She is particularly concerned that medical material, which was been provided to me prior to Christmas, which indicates from the perspective of Mr Fearne’s medical advisers, that there is no impediment to him providing care for the children, is incomplete and the expert concerned has not been provided with the full picture of Mr Fearne’s mental state.
At this stage, the husband advocates spending time with the children from after school until 6 pm on each Tuesday during their school terms, but he would also seeks to spend some overnight time with the children on both a school night and on a weekend on an alternating basis.
It is his position that this is the modest regime, but will ensure that the children concerned have a meaningful level of relationship with him which will build on the arrangements that were put into place shortly prior to Christmas, which saw him spending regular periods of time with the children during the day.
The wife has filed a lengthy affidavit, as I say, prior to Christmas. She has many criticisms of the husband. She has enlarged upon them today. It is her position that the husband favours [Y] over [X], which is deleterious emotionally for the children.
In her submission, she indicates her view that Mr Fearne lacks insight into the needs of the children, but particularly [X] who, undoubtedly, has issues so far as his special needs are concerned. There is no doubt that he has delays which are significant in terms of his speech.
Another major evidentiary issue between the parties concerns the relationship between Mr Fearne and Ms H. Ms H has been involved as a speech therapist for [X]. The wife’s position is that there is a romantic relationship between Ms H and Mr Fearne.
Mr Fearne refutes this suggestion. Rather he would describe Ms H as a person who has been an honest broker between the parties. But by far the greater dispute between the parties is this issue as to whether Mr Fearne can cope with the children and what is the nature of his adjustment disorder at the present time.
Ms Fearne, I think, makes the concession that Mr Fearne can cope with the children up to a point. In terms of the practicalities of parenting she concedes that he can put them to bed, can feed them. But she has some concerns about whether he will be able to deal with the more challenging aspects of their behaviour, if they fight with one another and, more specifically, I think she says that if Mr Fearne is placed under any pressure, he will not be able to cope with the challenging needs of these two children without extensive support.
In this case, as in all cases to do with children, I have to focus on the best interests of the two children concerned. In doing that I am directed to look at a long list of matters in the Family Law Act contained in section 60CC. There are two categories of matter: primary considerations and additional considerations.
There are two primary considerations. They are, firstly, the benefits to the child concerned of having a meaningful level of relationship with both his or her parents and, secondly, the need to protect the child or children concerned from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
As is invariably the case, where the position of the parties are so polarised, they each approach the case from one, but not necessarily both of the two primary considerations. From the father’s perspective, [X] and [Y] will benefit from being able to interact with him in a variety of settings, including both daytime and overnight settings. He place weight on the benefit of the children having a meaningful level of relationship with him.
The wife, I think, acknowledges that the children need to have some form of relationship with their father, but she would say that there is a significant risk of the children coming to some sort of physical or psychological harm, because of concerns she has about the potential for Mr Fearne to neglect the two children concerned because of his psychological make-up..
I have to make an assessment of Ms Fearne’s concerns. In making that assessment, I have to bear in mind that I am dealing with this case at the interim stage. What that means is that I am not in a position to make concluded findings of fact about the very many matters in dispute between the parties. That is invariably the case at the interim stage.
I cannot rule out entirely the possibility that the children will come to some form of harm, whilst in their father’s care. Life is necessarily full of potential risks. What I have to do is fashion a response, which is proportionate to the degree of risk involved.
If I think that the type of care Mr Fearne will provide for these two children, over the period of time he seeks to spend with them, constitutes an unacceptable form of risk to the two children concerned, I should not make orders in the terms sought by him.
But I must also bear in mind that there are risks for the children of not spending time with their father or spending any very circumscribed time with him. They may be deprived of the benefit of having a proper and meaningful level of relationship with him.
In this regard the children concerned are not infants. [X] has recently turned eight years of age and [Y] is five years of age. The children must know their father and must have some level of relationship with him because, until the parties separated around, I think, August of last year, the father, the mother and the two children lived in the same household.
So the children are unlikely to have forgotten their father. However, they are of an age, particularly [Y], where it would seem that their relationship with their father needs to be regularly refreshed and enforced, because of its importance for each of the children.
This is the important factor from the father’s point of view. He says, bearing in mind one of the additional considerations, namely the nature of his relationship with each of the children, that at this stage it is likely to be the case that the children have a significant relationship with him. He argues that is not likely to be in the children’s best interests for this important relationship to be artificially constrained or be confined only to daylight hours. It being his position that an artificially constrained relationship is not likely to be a meaningful one.
This factors, in his submission, at this stage, should lead the court to the view that the best interests of the children will be served by there being the relatively modest increase in the time they spend with him as currently proposed by him.
At this stage I do not consider that the issues which the mother has raised are of such moment that it would be unacceptable for the children to spend time with their father, nor do I think, at this stage, that overnight time should be ruled out.

The wife is entitled to have her suspicions about the husband, but at this stage there is no independent evidence before me of a medical nature, which indicates that Mr Fearne cannot cope with the two children concerned.
In terms of this issue of favouritism, I agree with the submission of Ms Du Barry, counsel for the husband, that this of itself, is not sufficient reason to confine the husband’s time to daylight only. In any event that contention is, at this stage, supported only by Ms Fearne herself and others who are closely aligned with her.
In terms of the presumption of equal shared parental responsibility, it would seem to me, at this stage, that it should not be applied at the interim stage, because it would not be appropriate for it to be applied. I do not believe it would be appropriate for it to be applied, because of the parties’ extremely poor parenting relationship and compromised ability to communicate with one another.
Accordingly, it is not necessary for me to consider equal time or substantial and significant time and, in any event, Mr Fearne does not, at this stage, seek such time, although this is his aim in the longer run.
At this stage, in my view, the pre-eminent consideration needs to be how the children can have a meaningful level of relationship with both their parents. The underpinning of the wife’s case is, I think, that because of [X]’s and [Y]’s special needs – and I should say that [Y] was recently seen by a psychologist, Dr C, who provided a report on 9 December 2011, in which Dr C indicates that [Y] meets the DSM-IV criteria for autism spectrum disorder, high functioning – the court needs to exercise caution in too rapidly expanding the father time with the children, particularly in respect of overnight time.
The husband, for his part, is somewhat resentful that he was not involved in the process of obtaining that diagnosis, concerning [Y], from Dr C. It is his position that this is further evidence of the wife’s high handedness.
In any event, underpinning the wife’s position, I think, is that children who suffer from autism have a need for continuity in care. They do not cope well with change and, as such, I need to be very cautious about implementing any changes in respect of the two children concerned.
I do not dismiss those concerns, but at this stage I do not have any independent evidence from an expert who has assessed these children, in the actual context of the parental dispute between the parents concerned, which is an intense one.
The wife strongly opposed the orders I made on 20 December. She has some concerns that the children are not coping particularly well with those arrangements. I am not in a position to tie up conclusively those concerns with the orders themselves. It may be that the parties’ relationship with one another is a factor in any distress which the children are currently exhibiting.
On balance, turning my mind to the section 60CC factors, firstly I am not convinced that there is a significant need to protect the children from physical or psychological harm, as a result of abuse, neglect or family violence arising from Mr Fearne.
Accordingly I must give some pre‑eminence of the need of the children to have a meaningful level of relationship with both their parents. For reasons already provided I am satisfied that the children are likely to have a significant relationship with each of their parents, including their father.
There must, I think, be some concerns about the willingness and ability of Ms Fearne to support the children’s relationship with their father, but I am not in a position to make concluded findings of fact about that. The other significant issue in this matter is at this stage I am not in a position to make findings about the capacity of each of the children’s parents to provide for the children’s needs, including their psychological needs, other than that the wife concedes that Mr Fearne is able to cope with the children up to a point.
In all those circumstances I think it is appropriate that I make the orders which are essentially sought by the husband, which envisage some modest overnight time between him and the children concerned.
For those reasons the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 16 January 2012