Formio and Kermesse

[2008] FamCA 1171

FAMILY COURT OF AUSTRALIA

FORMIO & KERMESSE [2008] FamCA 1171

FAMILY LAW – CHILDREN – Magellan – interim orders

Family Law Act 1975 (Cth)

FATHER: Mr Formio

MOTHER:	Ms Kermesse
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3288 of 2008

DATE DELIVERED: 3 December, 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 3 December 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr G.Q.C. Ambrose

SOLICITOR FOR THE FATHER: Whyte Just & Moore

COUNSEL FOR THE MOTHER: Mr J.S. Livitsanos

SOLICITOR FOR THE MOTHER: Einsiedels

THE INDEPENDENT CHILDREN'S LAWYER Mr. Finn

Orders

1. That pursuant to orders made herein on 20 August, 2008 and 27 October, 2008, until further order the father spend time with the children K born … June, 2006 and N born … October, 2007 :

   (a)from 9:00 am. until 4:30 pm. on each Saturday (save on Saturday 27 December, 2008); 

   (b)from 3:00 pm. until 5:00 pm. on each Wednesday;  and

   (c)at such other times as are agreed;       

   and the changeover arrangements be as set out in those earlier orders, subject to any agreement to the contrary between the parties. 

2. That the father have additional time with the children as follows :

   (a)from 9:00 am. until 3:00 pm. on Boxing Day 2008, the children to be collected by the father at the C Police Station at the commencement of the period and collected by the mother at the W Police Station at the conclusion of the period;

   (b)from 9:00 am. until 4:30 pm. on Sunday 28 December, 2007, changeovers to be as provided for changeovers on Saturdays.

IT IS FURTHER ORDERED BY CONSENT

1. That for the purposes of changeovers generally, the parties and/or their nominees be permitted to collect and deliver the children at the commencement and conclusion of time spent periods.

IT IS FURTHER ORDERED

1. That the competing applications for final parenting orders be fixed for trial at 10:00 am. on 26 March, 2009, subject only to a part-heard case. 

2. That the report of Ms. L (which is undated but refers to assessments conducted in October and November 2008) be indexed on the court file. 

3. That each of the parties file and serve an updating affidavit on or before 20 February, 2009. 

4. That the parties file and serve any additional affidavits on which they intend to rely by 20 February, 2009. 

5. That the independent children’s lawyer have leave to file and serve affidavit or affidavits of expert witnesses including, but not limited to, Ms. L, and any such affidavits be filed and served by 20 February, 2009. 

6. That the matter be listed for mention by telephone at 9:30 am. on 6 March, 2009. 

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

AND THE COURT NOTES

That this case has been transferred to the docket of the Honourable Justice Brown.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3288 of 2008

MR FORMIO

Father

And

MS KERMESSE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties have two children.  K was born in June 2006 and N was born in October 2007;  K is now two and a half and N is just over one.  The parties separated in January 2008.  Since separation, the mother has moved from the western area to the south-eastern area  Reading the material, of which there is much, it is clear the move has been a cause of significant tension and unhappiness between the parties.

2. When an issues assessment was conducted, Mr A identified the absence of a parental alliance and the absence of good functional communication between the parties as major issues.  It is clear from the material that although some gains have been made in these respects,  each of the parties finds it difficult to trust and have confidence in the other. 

3. The mother expresses concerns about the father's parenting capacity.  The father expresses concerns about the mother’s mental health status.  Many facts are in issue.  The mother makes significant allegations of physical violence directed at her, and allegations of verbal violence.  It is the father’s evidence that it was she who was violent during the marriage, not he.  There is evidence of concern about the behaviour of a little boy R, who was involved with the Department of Human Services, but this does not now seem central to the dispute. 

4. Mr A prepared the issues assessment.  He subsequently, as ordered by Bennett J, prepared a family report;  dated 14 October 2008, it is before the court.  Dr E has prepared psychiatric assessments, in reports dated 1 August 2008.  More recently, a report has been obtained from Ms L, a psychologist, who conducted a psychological assessment of K.  The report is undated, but it notes assessment dates in October and November 2008.  I will order, in due course, that it be indexed on the court file.

5. It is clear that concerns have arisen since separation about K’s development, and it was those concerns which prompted the assessment by Ms. L, on the recommendation of a paediatrician. K was 28 months old when he was assessed. 

6. The assessment notes some mild delay in K’s communication and motor skills.  His adaptive behaviours are within the adequate range, but the assessment showed that some of his maladaptive behaviours were indicative of autism spectrum disorder. 

7. K was assessed on the autism behavioural checklist, on which a total score (across the five areas tested) in excess of 54, is highly typical of autism spectrum disorder children.  His test resulted in a total score of 102.  When that is allied with the Gilliam Autism Rating Scale, on which he figured at 98 per cent, it is very likely that he is within that range of probable autism. 

8. Whatever differences the parties have about each other -  the circumstances of their separation, their trust and confidence in each other – the assessment is obviously of very considerable concern to both.  There is some cause for optimism, as K is doing quite well.  It may be that early interventions will lead to a very positive outcome for him. 

9. The case has been before a court a number of times.  Interim orders made on 20 August resulted in the father being able to spend time with the children from 9 am. to 4.30 pm. on each Saturday.  Subsequent orders, made on 27 October, added in two hours on each Wednesday afternoon.  There is thus in place a regime of frequent and regular time between the father and the children.  Not surprisingly, the father is pressing to see more of the children;  in particular, he would like to have them stay overnight.  That application is at the heart of the dispute before me today.

10. The father would like to maintain the Wednesday afternoon contact and see the children from 9.00 am. on Saturday until 4.30 pm. on Sunday;  it was submitted the additional time could be phased in.  He would also like to see the children from 3 pm. on Christmas Day until 10 am. on Boxing Day.  If unsuccessful in that application, he suggested some time on Boxing Day, rather than Christmas Day.

11. The submissions of the independent children's lawyer and that of counsel for the mother are broadly similar.  It is their submission that the father’s time with the children should stay as it is until trial, save that they should be with him for four hours on Christmas afternoon.  

12. It must be said that with children of these ages, building and maintaining a meaningful relationship has more to do with the frequency of contact and less to do with the actual duration of each period.  It is better that little children spend frequent time with the other parent, even if for a shorter period, than less frequent but longer periods.  I do understand that the father seeks both frequent time and longer periods of time, which is a reasonable aspiration.

13. Mr A’s observations are supportive of the father’s parenting, particularly in light of some of the concerns expressed by the mother.  The children have a relationship with their father;  he managed them well, he set appropriate boundaries, and they interacted comfortably with him.  Mr. A referred to the potential to consider overnight time after K’s assessment had been completed, and counsel for the father has submitted that there is nothing in that assessment which is contra-indicative of the introduction of overnight contact.

14. Ms L made a number of recommendations aimed at K’s learning and development.  It is her evidence that he is likely to continue to experience delays in the acquisitions of communication, motor, social and academic skills;  he will learn best in structured environments and ones that offer a high level of individual teaching support.  She spoke of the need for early intervention, the usefulness of three‑year‑old kindergarten in due course, and the likelihood he would benefit from a home-based ABA program.

15. I have been told from the Bar table, without objection, that following that assessment, arrangements have been made for K to start the ABA intensive program on 5 January 2009.  That will involve three hours each day, in each week, over a 12-month period.  That imposes a structure and significant obligations on those looking after K.  He attends playgroup on Monday, he goes to an ABC Centre - assuming it is still open - on Wednesdays, he attends a session at Yooralla on Thursdays and he goes to swim school on Tuesdays and Sundays.  His little sister, N, undertakes most of those activities with him, as is usual in families, whether children have special needs or not.

16. About the law I will only say this.  The law rests on two pillars.  The first is the importance of fostering, as much as possible, a meaningful relationship between parents and children and, indeed, other people of importance to children.  The second is the importance of protecting children from emotional and psychological harm. 

17. The mother's explanation for moving to the south eastern suburbs, as I understand the evidence, is tied to her allegation of violence directed at her and also referable to the family support which is available to her there.  From the father's perspective, the violence did not occur, and supports are available to her back in the western area.  These are matters that can only be determined at trial, on the evidence, by the judicial officer who hears the trial.  They are not matters that can be determined by sending the parties to be assessed by another psychologist or psychiatrist or social worker or other professional. 

18. Until the court can make a determination on those facts, and on a number of other important issues in dispute between the parties, the court has to err on the side of caution.  Parents often feel that is unfair, but the Family Law Act 1975 provides that the court must treat the best interests of children as paramount; parents' wishes and desires must give way to those best interests.

19. I am unaware of any order which has changed the allocation of parental responsibility.  In my judgment, it would be premature to consider today whether the presumption of equal shared parental responsibility applies, particularly having regard to the allegations of violence.  There is no evidence that the lack of a determination on that issue is impacting adversely on these children, which is much to their parents' credit.  That issue can be determined in due course.  In those circumstances, I need not consider the ramifications of application of the presumption. 

20. Taking all the evidence before me into account, bearing in mind that it has not been tested and that much of it is contested, I am not satisfied that overnight contact should be introduced at this time.  I propose that contact continue on Saturdays from 9 am. to 4.30 pm. and on Wednesdays from 3 pm. to 5 pm.

21. In relation to Christmas Day, I am comfortable in acceding to the father's submission.  This will be the first year that Christmas means very much to K.  Whilst N will no doubt have a lovely time, it is unlikely she will understand a great deal of what is going on.  Children can be very tired by the end of Christmas Day.  The orders proposed by the mother and the ICL - whilst generous, because often people prefer to see a child on Christmas Day, rather than the next day - would involve the children in a lot of travel on Christmas Day.  They may well have been up since crack of dawn and it is much more likely that they will enjoy time with their father on the following day.  At their ages, Christmas presents and treats on Boxing Day are no different to Christmas presents and treats on Christmas Day;  it can simply extend the fun.  I do propose to order that the children spend Boxing Day with their father.  It will be an additional day, not time in lieu of another day.  They will be with him from 9:00 am. to 3:00 pm. 

22. The contact that would otherwise take place on Saturday 27 December will take place on Sunday 28 December, between 9:00 am. and 4.30 pm. 

23. I note the parties have agreed to a variation to the existing orders to provide that, for the purposes of changeover generally, the parties and/or nominees can collect or deliver the children.  I will make an order in those terms. 

24. In terms of directions for trial, I propose to list the application for trial on 27 March, subject only to a part-heard case.  There is a lot of material on the file.  I will grant leave to the parties to file an updating affidavit and commend commonsense;  this is not a Royal Commission.  It is very expensive to churn out affidavit material, much of which is not contested or is no longer relevant. 

25. I propose that affidavits be filed by 20 February.  The ABA home-based program will have been implemented by then, and will have been running for about six weeks.  The parties will be in a position to say something about that.  The ICL will have leave to file another affidavit from Ms L, if that is considered necessary.

26. I will fix a phone mention for 9:30 am. on 6 March, to confirm the case’s readiness for trial. 

I certify that the preceding
27  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.