Fort and McIntosh

[2016] FCCA 663

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORT & MCINTOSH [2016] FCCA 663

Catchwords:
FAMILY LAW – Parenting – interim issues – children have been separated – oral s.11F report.

Applicant: MS FORT

Respondent: MR MCINTOSH

File Number: DGC 389 of 2016

Judgment of: Judge Harland

Hearing date: 17 March 2016

Date of Last Submission: 17 March 2016

Delivered at: Dandenong

Delivered on: 17 March 2016

REPRESENTATION

Counsel for the Applicant: Ms Hughes

Solicitors for the Applicant: Quintessential Lawyers

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Taghdir

Solicitors for the Independent Children’s Lawyer: Taft Lawyers

ORDERS

1. The proceeding is adjourned for directions on 4 May 2016 at 9.45am.

2. The mother and the father are to have equal shared parental responsibility for the children X (‘X’) born on (omitted) 2007, Y (‘Y’) born on (omitted) 2008 and Z (‘Z’) born on (omitted) 2013 (collectively referred to as ‘the children’).

3. The children are to live with the mother until Saturday, 19 March 2016 at 4.00pm and thereafter, the children are to live with the father.

4. The mother is to spend time with the children as follows:

5. From Friday, 25 March 2016 at 4.00pm until Tuesday, 29 March 2016 at 4.00pm; and

6. From Saturday, 2 April 2016 at 4.00pm until Thursday, 7 April 2016 at 4.00pm.

7. Each alternate weekend from Friday at 4.00pm until Sunday at 4.00pm commencing on Friday, 15 April 2016.

8. The mother is to collect the children, including Z, from (omitted) Primary School at the commencement of her time with the children.

9. At the conclusion of the mother’s time, changeover is to occur at McDonalds on the (omitted).

10. During the school holidays, changeover is to occur at McDonalds in (omitted).

11. The mother is to live with the maternal grandmother when she spends with the children.

12. The children are to communicate via Skype or telephone with the parent that they are not living or spending time with every alternate day.

13. The father enrol X in (omitted) Primary School as soon as possible.

14. X and Y are to remain enrolled at (omitted) Primary School until further order.

15. The mother’s details are to be provided to (omitted) Primary School as an emergency contact.

16. The mother will be entitled to attend all events involving the children including:

17. Sporting fixtures.

18. Extracurricular activities that allow for parental attendance.

19. School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

20. The father is to engage with Families First as soon as possible and follow all of their directions for that engagement including accessing counselling services.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 389 of 2016

MS FORT

Applicant

And

MR MCINTOSH

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This case first came before me yesterday. I ordered the parties and children to attend an urgent child inclusive conference and appointed an Independent Children’s Lawyer (“ICL”). The ICL appeared today and was very helpful.

3. This has been a complicated and, complex matter where there are three children who I think are pretty vulnerable. There is no doubt that both parents dearly love all three of their children. There has been some real dysfunction in their relationship, and the children have been negatively impacted by that and by other issues as well. There has been a lot of instability for the children. It is also clear that the children want to spend time with both parents and also want to spend time with each other. The situation that has come about is that the siblings have been separated and I think it is certainly agreed by everybody today that the children need to be reunited because the children provide one another with a source of support when they feel like the adults around them are not always providing that support. 

4. It seems pretty clear, from what the family consultant has said, that these children and particularly Y and X are both vulnerable, are both clearly emotionally affected by what has been going on, that Y had a high level of anxiety about what was happening and needing to know from the family consultant what is going on, what is happening next and what is happening now. That indicates that he feels really insecure about where he is going to be and what is happening. X was really worried that she might have to make the decision or be asked to decide and that is something I often hear from children of that age. That is one of their biggest worries as they do not want to hurt either of their parent’s feelings and they do not want to be the decision-maker. They want to be heard. They want to be listened to but they do not want to feel like what they say is going to be the difference between being with the mother or being with the father because they love both parents. They feel torn and they do not want to upset anybody. What is going to be really important moving forward is that both parents are going to have to make it clear to the children that it is okay to love and want to see the other parent.

5. It is going to be really important that the children get that sense of permission from their parents. The parents might think that they have always done that but it may be that that message is not really getting through to the children because there has been this conflict. The children have been back and forth between their parents. It is going to be really important that both parents take on board the concerns that their children have and that they make sure there are phone calls between the children and that they are encouraging about the time they spend with the other parent. It requires more than complying with orders; it requires a positive reinforcement to the children and the extended family need to be involved in that as well to help the children get that feeling of security about what is happening. Their sense of security is not just about the physical place where they are; it is their sense of security in the adults around them and also the predictability about their circumstances. It is pretty clear that they have not been able to feel that. It is not a question of looking at either of the parents and blaming them. If the family can be positive and encouraging, the children will know they have permission to enjoy time with each parent.

6. There have been very complex things occurring however, what is clear is that these children need some assistance and that everyone understands that that needs to happen. There are actually resources available to make that happen fairly quickly. In an interim matter like this, I cannot determine the factual issues that are in dispute. There are a lot of factual issues in dispute. That is something that happens at a final hearing where evidence is tested. What I can do on an interim basis like this is much more limited and what I have to do is take a protective and cautious approach.

7. It is clear that there are risk issues with whatever I do, however, I am balancing what is going to be of less harm to the children in the short term. I am mindful of the Department of Health and Human Services’ report.  I am also mindful of what the family consultant said in relation to that and in relation to the issues of attachment. 

8. I should say, particularly for the father’s benefit, the references to primary carer and primary attachment is not diminishing his involvement with the children. It is talking about who the children have spent more time with historically and attachments tend to be primary attachments and other important attachments. Those kinds of terms are not designed to say that the father is not important to the children or that the children are not attached to him. It is not designed to say that they do not an attachment to you as they clearly do.

9. In my view, weighing up the balancing factors which have been covered in the submissions and exchanges between the court, everyone at the bar table and the family consultant, they balance in favour of the children living with the father.  The mother has certainly, it seems, put many things in place to deal with the issues that have arisen. That is a good thing and a credit to the mother for doing those things. Living with her mother and having the family support around her is important.

10. My concern is that it is very early days, and there are things that have happened that indicate that the mother has not been able to look after the children in certain ways as well as she should be and that the children have had some concerns about that and concerns about different people coming in and out and not feeling safe.  That does not mean that there might not be, as the family consultant and Independent Children’s Lawyer have said, a different outcome on a final hearing but I have to take a protective, cautious approach at this interim stage.

11. When I am looking at these things, there is a track record of the father engaging more and engaging consistently. What I would say is that this is an opportunity for the mother to continue to deal with the issues that she has been dealing with and to get things on track. I think it is very early days. It is also pretty clear that the children did not have anything to say about the mother’s partner and enjoy her partner being there as well.

12. I am concerned about the father’s ability to facilitate and encourage the children having their relationship with their mother and that is something that he is really going to have to make sure that he does. Both parents have acted in a way with the unilateral changes back and forth that has caused instability and stress for the children as there would be a sense, I imagine for both children of not knowing who they are going home with today and what school they are attending today.

13. It is really important these children are re-assured. They are going to need to hear from the adults that whilst mistakes have been made here, everyone loves them and that everyone wants what is best for them.  Both parents need to take some responsibility for what these children have experienced. Rather than looking back and making recriminations against each other or themselves, it is about looking forward. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 30 March 2016