Fells and Fells

[2017] FamCA 110

FAMILY COURT OF AUSTRALIA

FELLS & FELLS [2017] FamCA 110

FAMILY LAW – INTERIM PARENTING – Who the children live with/spend time with – Where the children have complex medical needs – Where a parent can effectively deal with the children’s medical needs – Where there is an allegation as to substance abuse by a parent – Where one of the children is very young – Whether the young child should spend the same time with each parent as the older siblings – Where there is no expert information available to the Court – Where there are no orders in place – Where the children’s medical needs require stability in their care arrangements.

APPLICANT:

Ms Fells

RESPONDENT: Mr Fells

INDEPENDENT CHILDREN’S LAWYER Independent Children’s Lawyer

FILE NUMBER: SYC 7172 of 2016

DATE DELIVERED: 2 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Doolan Callaghan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Fox & Sandiland Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Blackman Legal Pty Ltd

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the parents have equal shared parental responsibility for the children B born … 2007, C born … 2008, D born .. 2010 and E born … 2013.

2. That the children live with the mother.

3. That the three older children spend time with the father, during school terms as follows:

   (a)       In the first week of each two week period, from after school Friday until school commences on Monday;

   (b)       In the second week of each two week period, from after school Friday until noon on Saturday; and

   (c)       Each Tuesday from after school until 5.30pm.

4. That E spend time with the father, during school terms as follows:

   (a)       In the first week of each two week period, from 9am on Saturday until noon on Sunday;

   (b)       In the second week of each two week period, from after school Friday until noon on Saturday; and

   (c)       Each Tuesday from after school until 5.30pm.

5. That, in the absence of agreement, in the holidays at the end of the second and third school term:

   (a) the three older children spend the first half of the school holiday with the father, commencing at 9am on the first day after the last school day; and

   (b) E shall spend the last three nights of the period with her siblings, commencing at 9am on the first day she stays overnight.

6. That in the Christmas holidays, unless otherwise agreed, the three older children shall spend each alternate week with the father and E shall spend the last three nights of those weeks with her siblings commencing at 9am on the first day she stays overnight.

7. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fells & Fells has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7172 of 2016

Ms Fells

Applicant

And

Mr Fells

Respondent

REASONS FOR JUDGMENT

1. Ms Fells (“the mother”) and Mr Fells (“the father”) have four children, B born in 2007, C born in 2008, D born in 2010 and E born in 2014. B and D have been diagnosed with autism spectrum disorders.

2. The mother and father separated for a period between December 2014 and July 2015 but reconciled. They remained living in the same house at Suburb F.

3. The marriage ended in April 2016 but the mother and father have remained living in the same house, in circumstances which, on any version of events, are untenable for the parents and unacceptable for the children.

4. On 23 November 2016, they reached a temporary agreement that they would continue to live together during the week and that each parent would leave the house on alternate weekends, leaving the children with the other parent.

5. It is self-evident that this arrangement cannot continue and cannot be of benefit to the children.

6. An Independent Children’s Lawyer (“ICL”) has been appointed for the children. At the commencement of the hearing, the ICL, who had been able to speak to the two older children in past days, told the Court that the children loved and felt safe with both of their parents but that they were distraught at the level of conflict between their parents and that the children needed their parents to separate.

7. Both parents appeared to be distressed on hearing what the ICL told them about their children.

8. With the assistance of their lawyers, they were able to negotiate an arrangement where the father would leave the home in four weeks and also to negotiate final property orders which provided, inter alia, for the sale of the home and the division of the proceeds. Final orders for property settlement were then made.

9. The parents were also able to resolve the minor issues about special days and the Easter school holiday period.

10. The parties agreed that the current arrangements should remain in place until the father moves to separate accommodation.

11. The issue then for determination was the time that the children would spend with each of their parents after the father physically leaves the home and the arrangements for school holiday periods at the end of second term and thereafter.

12. The mother proposed that the father spend time with the three older children each Tuesday afternoon from after school until 5.30pm and, in the first week of every two week period, from after school Friday until before school the following Monday. In the second week of each two week period she proposes that the children spend time with the father from after school Friday until 10am on Sunday.

13. In relation to E the mother proposes that rather than spending the whole weekend with the father in each alternate weekend she should spend time with him from 9am Saturday until midday on Sunday.

14. The father’s proposals which were, in his response, for a week about arrangement, were varied in the course of the hearing. In submissions the father’s proposals were modified. He makes the same proposals in relation to all four children that, in the first week of each two week cycle they should spend time with him from Thursday after school until Monday morning before school and in the second week from Wednesday after school until Friday before school.

15. The ICL submitted that the children need a stable base during the school week and to spend a full weekend with each parent. He did not support the father’s assertion that E could spend extended periods away from her mother.

16. The mother’s case was that she had been the primary carer for the children, that the father had little involvement in the management of their medical issues and their schooling, and that he had difficulties with alcohol and with anger management. On her behalf it was submitted that the father could not manage the children’s complex needs for extended periods.

17. In relation to E, the mother submitted that she was too young to spend extended periods away from her primary carer, even in the company of her siblings.

18. The father disputed the mother’s assertions as to the primary care of the children, his involvement in their day to day management and his alleged difficulties with alcohol and anger. It was his case that E would be able to spend four nights away from the mother because she would be in the company of her older siblings.

19. These are interim proceedings and there has been no opportunity to test the respective cases by cross-examination. There has not yet been an opportunity for a Child Responsive Conference and memorandum although that will happen in late March. However, tendered in the mother’s case were a number of documents produced on subpoena from treating doctors and medical professionals which tend to support her allegations.

20. On 18 August 2011, the father’s general practitioner wrote a letter to a consultant psychiatrist which stated inter alia:

    [The father] has concerns that he has adult ADHD. He has a son who has just been diagnosed as probable ADHD and a fether (sic) whom he feels is probably undiagnosed ADHD also. He has a sense of restlessness and likes to always keep busy. He runs his own … business and can cope with most iof (sic) the stresses but sometimes becomes overwhelmed and reacts with aggiatation (sic) and anger.

21. In early 2012, the records of Suburb G Medical Practice indicate that the father described a history of depression as a young adult which did not respond to medication. The father told the doctor that his eldest son had been diagnosed with possible ADHD and the father felt that the same symptoms applied to him. The father told the doctor that he sometimes felt overwhelmed with stress and reacted with irritability and anger.

22. On 14 November 2012, the father’s general practitioner noted that the father had quit alcohol and cannabis “10 days”. On the same day the notes state “Standard letter to doctor Suburb F Hospital Drug and Alcohol Services”.

23. Later in 2012 the father’s psychiatrist noted that the father reported that he was working six to seven days each week. He was using alcohol and marijuana to self-medicate.

24. On 22 September 2014, the father’s psychiatrist wrote a letter to his then general practitioner in which he stated inter alia:

    Thank you for referring [the father] whom I first saw about 3 years ago. I last saw him 2 years ago. It was suspected he has adult ADHD (first suspected by his sons’ paediatrician). He had a very brief trial of Ritalin which he found made him more anxious.

    Two years ago I commenced him on a trial of Valproate for some symptoms of bipolar disorder although at the time I was unsure whether he did indeed did have bipolar disorder. … He did not see anyone to review his medication or mental state.

    He then went on to Paroxetine … which both he and his wife felt made him more irritable and angry.

    He presented today with unchanged symptoms of impulsivity and irritable moods. His wife has said she wants to move out despite marital counselling.

25. On 22 September 2014, the father’s general practitioner noted that the father had requested referral for management of alcohol abuse issues and the father was referred by his general practitioner to a psychiatrist “for management of alcohol abuse issues”.

26. On 22 September 2014, the father’s psychiatrist noted that the father reported excessive mood swings and yelling at the children. The father reported that he was smoking three to four marijuana joints a day.

27. On 20 October 2014, the father told his psychiatrist that he was going to join AA.

28. On 31 October 2014, the notes of the father’s general practitioner indicate, in relation to the father “Heavy drinker – decreased as of last month.”

29. On 17 November 2014, the father told his psychiatrist that he had stopped drinking alcohol.

30. On 17 November 2014, the father’s psychiatrist wrote a letter to his general practitioner where he stated:

    His anxiety has subsided significantly. He finds himself more even tempered and his wife has provided him with positive feedback about his progress.

    He has stopped drinking alcohol and is now focusing on better eating habits.

31. As to the mother’s assertion that she has been the children’s primary carer and responsible for the management of the boys’ complex medical issues, the mother deposed that she is the parent who is contacted by the school if parental attendance is required. She attends at school and participates in reading, canteen duty and school excursions. She deposed that she is also the parent who organises and attends all of the children’s medical and specialist appointments and who has attended to the treatment of the boys’ autism. She deposed that her involvement includes attending and participating at all of the appointments in relation to the children’s diagnosis including taking them to weekly occupational therapy and speech therapy sessions and working closely with their therapists.

32. The mother annexed to her affidavit ten documents which were either summaries of the children’s therapies or letters from treating doctors in relation to the children’s management. D’s speech pathologist refers to the mother’s active involvement in all of D’s therapy protocols. B’s speech pathologist refers to the mother’s primary contact and participation in all of his therapy sessions and the close association between the mother and the therapist over a period of years. B’s therapist states that the mother attended all planned meetings under the “Helping Children with Autism” early intervention program. There is no suggestion that the father attended on any occasion. It was the mother who sought occupational therapy for D. It was the mother who took D to Sydney Children’s Hospital for review following an admission to hospital in 2013 and provided information about D’s progress.

33. The mother took B for assessment by a paediatric occupational therapist in 2011.

34. The mother took D to a specialist paediatrician for assessment in 2013.

35. The mother arranged for D to be assessed at the H Clinic in June 2016.

36. In none of the ten reports which are annexed to the mother’s affidavit is there any mention of any involvement by the father with the medical professionals.

37. The father deposed that the mother was employed in his business, working from home doing book keeping while the father worked in his business. I note that he deposed that he works flexibly Monday to Saturday, although in 2012 he told his doctor that he was working up to seven days a week.

38. The mother now works part time three days a week.

39. On any interpretation of the evidence, the mother has been the primary carer for the children.

40. The father will leave the house on 23 March 2017. He proposes that he will obtain suitable rental accommodation close by and close to the children‘s school. Whether he will be able to do so is not yet known.

41. It is not disputed that the children need to spend substantial and significant time with their father and that their relationship with him is close and loving and important to them. However, the time they spend with their father must be sufficient to maintain the relationship but be balanced against their need for stability and routine in the period immediately following the upheaval to their lives, caused, firstly, by their parent’s acrimonious separation under the one roof and then their physical separation.

42. It is not appropriate for E to be separated from her primary carer for long periods as the father proposes.

43. I accept the submission of the ICL that the children need a stable base from which to go to school during the school week.

44. Accordingly, the orders will put in place a regime, from the time the father lives independently, whereby the three older children will spend alternate weekends with the father from after school on Friday until delivery to school on Monday on the first weekend and from after school Friday until noon Saturday on the second weekend, in every fortnight during school terms.

45. While this arrangement does not allow the children to spend a full weekend with their mother, it has the advantage of being less disruptive to their schooling than an over-night during the week.

46. In addition the children will all spend time with the father after school on Tuesday which is the only afternoon they have no extra-curricular activities.

47. E will spend time with her father on Tuesday afternoon and from 9am Saturday until noon on Sunday on the weekends when the older children spend the full weekend with him, and from Friday afternoon until noon Saturday with her siblings in the alternate weekend.

48. In relation to the school holidays at the end of the first school term, the parents have agreed that the three older  children will live with the father from Easter Sunday, 16 April 2017 until 25 April 2017 and that E will live with him from Easter Sunday until the following Wednesday, a period of three nights.

49. The holidays at the end of first term are unusually long because both Easter and Anzac Day fall within that period. In the holidays at the end of terms two and three, the older children should spend half of the holidays with the father and E should spend the last three nights of the holiday period with her father and siblings.

50. If the parents are unable to agree about the Christmas school holidays, then the children should spend a week about with each parent, with E spending the last three nights of the week with her father and siblings.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 March 2017.

Associate: 

Date:  2/3/2017