Firbank and Firbank - [2011] FMCAfam 1227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FIRBANK & FIRBANK

[2011] FMCAfam 1227

FAMILY LAW – Interim parenting – high conflict – revisiting earlier interim orders made – nature of decision making in parenting cases – interpretation of paragraph 68 of Goode – overnights for young children.

Family Law Act 1975, s.60CC

Firbank & Firbank (2011) FMCAfam 118 & [unreported]
Goode & Goode (2006) FLC 93-286

Applicant:

MS FIRBANK

Respondent:

MR FIRBANK

File Number:

SYC 4336 of 2010

Judgment of:

Altobelli FM

Hearing date:

2 November 2011

Date of Last Submission:

2 November 2011

Delivered at:

Sydney

Delivered on:

3 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Abrams Turner Whelan Family Lawyers

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Barkus Doolan Kelly

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

That Orders 3 and 4 of the interim Orders made on 3 February 2011 are varied as follows:
1.1Orders 3 and 4 are suspended; and
1.2Commencing as from the date of these Orders, [X] spends time with the father at the following times:
1.2.1In Week One,
(a)from 9.30 am – 3.30 pm Tuesday;
(b)from 10.30 – 12.30 Thursday and Saturday
1.2.2In Week Two
(a)From 9.30 am – 3.30 pm Tuesday;
(b)From 10.30 – 12.30 Thursday and Sunday
1.3Commencing as from the date of these Orders, [Y] spends time with the father at the following times:
1.3.1In Week One,
(a)from 3.30 pm – 5.30 pm Tuesday;
(b)from 10.30 – 12.30 Thursday and Saturday
1.3.2In Week Two
(a)from 3.30 pm – 5.30 pm Tuesday;
(b)From 10.30 – 12.30 Thursday and Sunday
That the mother and father within 72 hours do all acts and things necessary to make an appointment with Ms B, Clinical Psychologist for the purpose of the mother and father attending upon Ms B for non reportable therapy in relation to their own communication issues and to attend and continue to attend upon such times as Ms B arranges.

THE COURT FURTHER ORDERS THAT:

The matter be adjourned to 22 December 2011 at 9:30am for Interim Hearing in Sydney.
The parties are to file and serve any further material on which they seek to rely no later than 19 December 2011.
Any previous Orders for the preparation of a Family Report be vacated.
Leave be granted to the Independent Children’s Lawyer to file a Minute of Order appointing a Part 15 Expert.
Leave be granted to the Independent Children’s Lawyer to relist the matter on 48 hours notice.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4336 of 2010

MS FIRBANK

Applicant

And

MR FIRBANK

Respondent

REASONS FOR JUDGMENT

In the matter of Firbank & Firbank I provide the following oral reasons. This case relates to two children: [X], who is two years old, and his sister [Y], who is one year old. [X] and [Y]’s parents are locked in litigation over the children. Whilst this matter has only come into my docket, on my reckoning it is the third judgment being given in interim proceedings this year, the previous judgments being reported as (2011) FMCA Fam 118 and also [unreported]. [X] and [Y]’s parents would do well to remember this fact.
These proceedings started on 9 July 2010 when [Y] was one month old and [X] 17 months old. For most of [X]’s life and almost all of [Y]’s life their parents have been litigating about them. For the sake of these children, I urge the parents to take a step back and think about this. The relevant background matters and the history of these proceedings have been fully stated in Monahan FM’s reasons for judgment of 3 February and 29 August 2011. I do not intend to repeat them.
It is his Honour’s orders of 3 February that are sought to be revisited because of certain evidence that the mother adduces about how [X], in particular, is coping, but also [Y]. I make this observation that all judicial decisions made in parenting matters involve an element of prediction based on the available evidence. No judicial officer I have ever met or know of claims infallibility, especially when it comes to future predictions about matters such as human behaviour - especially that of young children. One just does the best one can on the available evidence in a totally fluid environment.
The mother’s proposal is as per a minute contained in her case outline document. I will incorporate that minute into these oral reasons. In relation to [X], it is the existing order 3.4 that is varied by the removal of overnights on Saturday, Tuesday and Thursday, though [X] continues to spend time with his father six times per fortnight. In relation to [Y], it is 4.4 of the existing orders that is most affected in that the length of time she would spend with her father is reduced, but, on my reading of the minute, the frequency is actually increased to six times per fortnight.
On the mother’s proposals there are times when the father has the benefit of time with both children at the same time and then with one child only. The father’s proposal is that the existing orders be maintained. The Independent Children’s Lawyer proposes a variation be made in relation to [X]’s time only and that is to remove one of the overnights in week 2 but to maintain day-time contact.
The father’s evidence consists of his affidavits, filed 11 August and 27 January this year. In addition, I have had access, of course, to the reasons for judgment of Monahan FM, as I previously indicated. The mother’s evidence before me consisted of the affidavits filed in the mother’s case, including hers sworn on 28 October and that of the maternal grandfather sworn and filed 9 August.
The issue is whether and, if so, to what extent I should vary the existing orders. The applicable law is contained in Part VII of the Family Law Act and specifically section 60CC to which I will make reference shortly. The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides a useful template for approaching these matters and I incorporate into these, my oral reasons, a number of paragraphs from the Full Court’s decision, including paragraphs 82, 60 and 68.
I turn now to discuss the evidence. The mother’s affidavit sworn 28 October contains her detailed evidence about the impact on [X] of the orders for contact made on 2 February this year. There are two distinct stages in this evidence. Firstly, the period from the making of the Order to 22 August and, secondly, the period from 22 August when overnight time commenced. In the first period the mother observed a deterioration of [X]’s behaviour which included irritability and anger, distress and tearfulness, aggression towards the mother and his sister, [Y], the maternal grandfather and also aggression directed towards things around [X] such as his personal belongings, toys, furniture. She observed that [X]’s sleeping patterns became unsettled and he became particularly dependent on his security blanket and she observed a regression of behaviour to that which she characterised as a baby.
In the second period, the mother observed a further deterioration of [X]’s behaviour that included not eating his food, becoming distraught at times with emotion, further regression, indeed, that was noted to be even more intense, including aggression directed towards his baby sister.
If the mother’s observations of this behaviour are correct, then [X]’s behaviour is self-evidently of deep concern. I make the observation that the mother is well placed to make these observations. The father’s evidence is that [X] does not demonstrate this behaviour with him. I observe that it is quite possible that the evidence of both the mother and father is correct. But that does not detract from the dilemma that confronts the Court and that is that [X]’s behaviour is, on the mother’s account, quite disconcerting.
Whilst on the one hand the real issue in this case is not so much what [X] is doing but why, the reality facing the Court is that [X] is plainly in distress and to wait the two-month period before the evidence is available that will give an insight as to why [X] is so behaving, does not obviate the distress he is clearly experiencing. In this type of situation, the Court proposes to adopt the course that is of least risk to [X] and which is the course most easily reversed should it transpire that after receiving the best expert evidence available and with hindsight it turns out that these Orders should not have been made.
One can understand the father’s senior counsel’s submission that I cannot make findings of fact in an interim hearing and on that basis I should not vary the current orders. With great respect to senior counsel for the father and to the countless counsel and solicitors who all too regularly make that submission in this courtroom, it misconstrues what the Full Court said in Goode & Goode (2006) FLC 93-286 at paragraph 68. That passage does not say that I cannot make findings of fact in the course of an interim proceeding, which, of course, is necessarily an abridged process. What that passage warns about is making findings of fact where it is not possible to do so.
In this regard the mother’s observations about [X]’s behaviour is not challenged, nor, indeed, could it be challenged. It is those observations I rely on in making the Orders I do. I do not rely on what she says the father said or did. I do not rely on what she says others said or did. I do not rely on the social science research that she refers me to. I rely on her uncontested observations of [X]’s behaviour which, as I have said before, I find deeply disconcerting.
Now, I openly acknowledge the possibility that once we have expert evidence, I may make a finding in the fullness of time that the mother is anxious. Who knows, she may well be inadvertently projecting her anxiety on [X]. This is but speculation. But what difference does that make from [X]’s perspective? None. He is distressed. This is an incontrovertible fact so far as the evidence before me is concerned. The cause of that is a matter for further evidence. The primary focus must be on seeking to relieve that distress as best the Court can.
Both the mother and the Independent Children’s Lawyer propose a reduction in contact, especially overnight time. In common is a concern that overnight contact is contributing to [X]’s distress. The Independent Children’s Lawyer’s proposal involves reducing one overnight time. The mother’s proposal involves eliminating it for now.
I am going to accept the mother’s proposal for the following reasons: firstly, the Order I make will be for a short term. This interim hearing is adjourned to 22 December at which time I reasonably apprehend that further evidence will be available. Secondly, even on the mother’s proposal the father remains substantially involved in the children’s lives, though not for overnights. Thirdly, the Order I make is very easily reversed if I am wrong. It is the Order that presents the least risk to the child. If it turns out that overnight is contributing to [X]’s distress, then the Order that I intend to make is clearly in his best interests because to allow further overnights to continue would cause further distress.
If it turns out that overnights is not the cause of [X]’s distress, given the level of contact that the father will have anyway there is no danger to their relationship and it is easily fixed up. There is no damage. At one point in his submission, senior counsel for the father referred to the question of rights. The assertion of rights in this Court is a much vexed issue. The Act does not give rights to parents. The Act gives rights to children. It is the best interests of children that is the focus of decision-making, not the best interests of parents.
In relation to [Y], I also accept the mother’s proposal and I do so fully acknowledging that her observations are not nearly as disconcerting as in relation to [X]. On the mother’s observations, [Y] has been on the receiving end of [X]’s aggression which is difficult not just for the obvious reasons, but because the context of the mother’s observations suggest that general context is of a good relationship and a close bonding between the two children. Paragraph 71 of the mother’s affidavit sets out her concerns about disruption to [Y]’s sleeping patterns. In these circumstances, a cautious approach is warranted and I adopt the same reasoning as I have articulated in the context of [X].
Let me deal with the section 60CC considerations. Firstly, I am satisfied that on any of the proposals advanced by any of the parties, both [Y] and [X] will have a meaningful relationship with both parents. Specifically, I am of the view that the changes proposed by the mother do not detract in any way from the meaningful relationship that the father appears to enjoy with [X] and [Y]. There are no issues of harm arising from abuse, neglect or family violence. There are no relevant views of the children. The children seem to have a good relationship with parents and the other significant people in their lives and none of the proposals will change that.
At an interim level, there is no evidence before me to suggest that either parent lacks willingness to facilitate and encourage a close relationship between the children and the other parent. The changes proposed by the mother and the Independent Children’s Lawyer are not such as to affect the children’s relationship with their father given the frequency of contact they have. There are no issues of practical difficulty and expense. There are no issues of parental capacity. These are very young children. They are both vulnerable due to their age. They are at an important developmental stage. The distress is evident and I have made reference to it in my reasons and this warrants a reduction of their time with the father, though not a reduction in frequency.
There are no issues of parental insights or responsibilities except to the extent that this is clearly a high conflict case. Might I remind the parents that it is they who control the level of conflict, not anybody else. There are no issues of family violence. It appears that no Orders have been made in relation to equal shared parental responsibility. Certainly none was sought before me. Nonetheless, I still consider the question of equal time. It is clearly not appropriate and was not sought. I consider substantial and significant time. I observe that the current order probably meets the definition of substantial and significant time in Part VII.
The mother’s proposal, if accepted, would probably take it out of that definition, but nonetheless I find that substantial and significant time is not reasonably practicable because of the impact of this on the children and in this regard I refer to paragraph (d) of the definition.
I want to stress to Mr and Ms Firbank that this is a temporary decision. I hope you have heard what I have said. I am adopting the course that I think is of least risk.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 22 November 2011