Filles and Filles

[2008] FamCA 762

FAMILY COURT OF AUSTRALIA

FILLES & FILLES [2008] FamCA 762

FAMILY LAW -  CHILDREN – With whom a child lives – Family violence –  Magellan - Interim parenting orders

Family Law Act 1975 (Cth)

HUSBAND: Mr Filles

WIFE: Ms Filles

INDEPENDENT CHILDREN’S LAWYER: Mr P. Hannan

FILE NUMBER: MLC 5640 of 2008

DATE DELIVERED: 22 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 22 August, 2008

REPRESENTATION

SOLICITOR FOR THE HUSBAND: Mr. Moss
John D. Snodgrass & Assoc.

SOLICITOR FOR THE WIFE: Ms S. MacGregor Magregor Solicitors

THE INDEPENDENT CHILDREN'S LAWYER

Mr P. Hannan

Gorman & Hannan

Orders

1. That until further order the children J  born … September, 1994, T  born … July, 1996, S born … February, 1998 and B  born … April, 1999 (“the children”) live with the husband. 

2. That until further order the children spend time with the wife as follows:

   (a)on each alternate Sunday from 9:00 am. until 7:00 pm. commencing on 31 August, 2008;  and

   (b)at such other times as the parties agree. 

3. That subject to any agreement to the contrary by the parties, the husband deliver the children to and collect them from the wife’s home and during changeovers:

   (a)the husband stay in the vicinity of the wife’s residence for the shortest period practicable; 

   (b)the husband remain seated in the car;  and

   (c)the wife remain within her residence.

4. That the wife be at liberty to attend the children’s basketball games. 

5. That the parties attend on Dr N for psychiatric assessment and reports and IT IS REQUESTED that Victoria Legal Aid extend aid to the parties to cover the cost of the reports. 

6. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released by 29 September, 2008 and the psychiatric assessments be made available to the family consultant preparing the Family Report.

7. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

8. That the reasons for judgment this day be transcribed and copies made available to the parties.

9. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5640 of 2008

MR FILLES

Husband

And

MS FILLES

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The case concerns the parties’ four children.  J is 13, T is 12, S is 10 and B is 9.  It is a sensitive matter.  It is no doubt hard for the parents to sit in court this morning while strangers dwell over their lives, and with no opportunity to contest the other’s evidence, save by assertion.

Legal Principles

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

2. There is often a tension between those two aspirations.  Until the court can test the evidence, and hear expert evidence, it cannot come to a final and concluded view on where the balance lies.

3. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

4. 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 (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  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.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

5. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

6. The overriding matter for the court, at any stage of the proceedings, is the best interests of the children.  That, of course, is a subjective assessment; each of the parties will have different ideas about where the best interests of their children lie.  The court must do the best it can to focus on the best interests of the children, having regard to the evidence.  The parents' wishes and desires must give way to that.  It is important that parties understand - and this is often very hard - that a decision at this stage (whether a decision for limited or supervised contact, or a decision for lots of contact) is not determinative of the issues in dispute between them.  The court will make the orders that it finds, on the evidence now before it, are most likely to protect the best interests of the children in the interim, pending trial.  The court must err on the side of caution, rather than taking risks with children.

7. These proceedings commenced on 24 June this year when the father filed an application seeking that S, J and B live with him, and T continue to live with his mother, if he chose to do so.  At that time, the father proposed that the time S, J and B spend with their mother be reserved.  He sought to see T, if T were to remain living with the mother, from 5:00 pm. on Saturday to 6:00 pm. Sunday and after school on Wednesdays.  On the same day the father filed a form 4 in which he alleged physical abuse of the children by the mother and the maternal grandmother. 

8. Today, the mother has filed an affidavit in support of her case, together with a notice of child abuse or family violence in which she deposes to significant violence directed at her in the course of the relationship, as a result of which she asserts that the children are at risk in the father’s care.  There are thus significant allegations on each side.

9. The Department of Human Services was asked to prepare a report into its investigation of the form 4 filed by the father, and a report dated 13 August 2008 is before the court.  It is limited in its conclusions.  It is based on interviews with the children at their school.  Neither parent made themselves available for interview.  I have read what the mother says about that in her affidavit.  The father has not had an opportunity to comment on that.  That is the reality.  The children, DHS record, reported feeling unsafe in their mother's house due to excessive physical discipline from her and their grandmother.  They told workers that they felt safe at their father's home. 

10. A significant allegation was made by S to workers of what would, if proven, be an assault by her mother.  The child alleged she was so distressed her legs were shaking and she soiled herself.  This was clearly of concern to workers and was referred to F SOCAU.  The DHS report notes that S was interviewed by police on 28 June 2008 but at this stage SOCAU is not taking further action.  That, of course, is not determinative of the allegation.  The standard of proof in criminal matters is different to the standard of proof in civil matters.  As a general rule, the DPP will not support a prosecution unless there is a reasonable prospect of success; to succeed, the offence must be made out beyond reasonable doubt.  This court operates under a different standard of proof, being the balance of probabilities.

11. Senior Registrar FitzGibbon made a number of orders on 3 July 2008.  A number of parenting orders were made by consent.  He also made what might be called the routine Magellan orders.  The language of the orders is a little convoluted but it is clear that the aim was for all the children to be together at weekends.  The children were to live with their mother, but it was acknowledged in a note to the order that J was then living with the father, and whilst he would be encouraged to live as proposed by the order, he may not move to his mother’s home.  The parties acknowledged that reality.  The father acknowledged that T might not choose to have time with him, too.  The notations were a sensible acknowledgment of the children’s views, given their ages.

12. It appears the children have been, on any basis, and wherever the rights and wrongs lie, exposed to a very volatile relationship between their parents which is not good for their emotional development.  It is important that the court does not lose sight of that.  It must consider the allegations of physical abuse and family violence and also the psychological and emotional impacts on the children, which can be longstanding.

13. Today, counsel for the mother asks that orders be made which provide for the four children to live with their father.  On 13 July 2008, she asked the father to look after the children and they were delivered to him; they have been with him since.  She has been involved in what have obviously been very stressful County Court proceedings in which it was alleged by the Crown that she was the target of sexual abuse by her own father.  That trial has concluded.  The jury have found her father guilty and I am told he is to be sentenced next week.  The court should not underestimate the stress of involvement in proceedings of that sort.  It has the capacity to impact on parenting and it is for that reason, the mother says, that she sent the children to live with their father.  She has had some limited contact with them since.  The father says he initiated that time with her; I cannot say whether she agrees with that or not.

14. Psychiatric reports and a family report are to be prepared.  Until the case is back before the court, the mother seeks to spend the whole of each alternate weekend and half school holidays with the children.  That is opposed by the father. 

15. The father concedes that he consented to the orders made in July, which provided that the children live with the mother, in the interim.  In an open letter, he proposed a resolution of the current application which would have the children spending each alternate weekend with the mother, in the interim.  Despite that, he is now concerned that the children say they do not feel safe and do not want to go.

16. The independent children's lawyer has spoken with the children.  They expressed views to her which are consistent with those reported in the DHS report; that is, they do not feel safe in the mother's care.

17. There has been some talk of supervision of the mother’s time with the children.  I am unsure where the children got the idea of supervision but that may be an adult summary of the concept of feeling more comfortable if another adult is present.  They may not have used the word "supervision" but adults have characterised their expressed views as a wish for supervision.

18. I am satisfied, on the evidence before me, that orders should be made which ensure the safety of the children, while maintaining some time with their mother, while the family report is being prepared.  They will spend time with her on each alternate Sunday (that is, daytime contact) and unless the parties agree to the contrary, from 9:oo am. until 7:00 pm.  That is late enough for them to have dinner with her.  The period is long enough to ensure meaningful interaction but short enough to limit the prospect of behaviour which they may perceive as inappropriate or frightening.  They are old enough to express their views and voice concerns to their father.  The mother will be able to attend the children’s basketball, which gives them another opportunity to have her involved in their lives.    

I certify that the preceding Fifty Four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown AM

Associate:

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