Fulham and Fulham

[2008] FamCA 984

FAMILY COURT OF AUSTRALIA

FULHAM & FULHAM [2008] FamCA 984

FAMILY LAW – CHILDREN – Interim – what time the children should spend with their father pending the receipt of the expert report and the outcome of family therapy – mother seeks suspension of time spent with the children by the father based on recommendations of the family consultant – balance of the benefit to the children of having a meaningful relationship with their father with the risk of the children spending time with their father

APPLICANT: Ms Fulham

RESPONDENT: Mr Fulham

INDEPENDENT CHILDREN’S LAWYER: Mr Rod Powe

FILE NUMBER: NCC 2067 of 2007

DATE DELIVERED: 19 November 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 3 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Turnbull Hill Lawyers

COUNSEL FOR THE RESPONDENT: Mr Graham

SOLICITOR FOR THE RESPONDENT: Smyth Turner & Wall

SOLICITOR FOR THE INTERVENOR: Rod Powe Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rod Powe Lawyers

Orders

Orders made 3.11.2008

1. Pending further order the current Orders relating to the children spending time with their father are suspended.

2. The Independent Children's Lawyer, as soon a practicable, is to arrange for the parents and the children to commence family therapy, that family therapy will be with Ms H if the father consents to that course, otherwise to be with Relationships Australia. 

3. Pursuant to Division 15.5.2 of the Family Law Rules 2004, Dr R be appointed to inquire into and report upon matters relating to the welfare of the children E (DOB ….9.1996), W (DOB ….4.1998) and M (DOB ….6.2002) and that in preparing her report to the Court, Dr R is requested to consider the following matters:-

   3.1.Any views expressed by the children and any factor (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

   3.2.The capacity of the parents to meet the children’s needs psychologically, emotionally and developmentally;

   3.3.The willingness of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent;

   3.4.The physical and emotional safety of the children in the household of each parent;

   3.5.The impact of any mental health issue of either parent upon the parent’s ability to care for, or spend time, with the children, including the mother’s possible eating disorders and the father’s possible depression and personality disorder;

   3.6.The capacity of each of the parents to provide for the needs of the children, including the emotional and intellectual needs;

   3.7.The willingness and ability of each parent to facilitate and encourage the close and continuing relationship between the children and the other parent;

   3.8.The likely effect on the children at separation from either parent and the other children of the relationship;

   3.9.The attitude to the children and to the responsibilities of parenthood demonstrated by each parent;

   3.10.The interrelationship between the children;

   3.11.The interrelationship between each child and:

   The half brother, N;

   The father’s partner, Ms Z;

   The children of the father’s partner;

   The maternal grandmother.

   3.12.The level of cooperation and/or communication between the parents;

   3.13.The insight of each parent as to the emotional and psychological wellbeing of each child;

   3.14.Any mental illness or condition of either parent; and

   3.15.Any other matter Dr R considers important.

4. The Independent Children's Lawyer provide the expert with the affidavits, a copy of the exhibits, a copy of the subpoena materials and a copy of the Children and Parent’s Issues Assessment.

5. Leave is granted to the Independent Children's Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr R and the fees in respect of that photocopying are waived.

6. The parties pay one half the costs of Dr R, such costs to be paid by each party to their respective solicitors prior to the provision of the report by Dr R to the Court subject to further order of the Court.

7. Liberty be granted to either party or the Independent Children's Lawyer on 7 days notice in the event some agreement is achieved at family therapy. 

8. This matter is otherwise adjourned 27 November 2008 at 2.15pm. 

IT IS NOTED THAT:

1. The estimated costs of the provision of a report by Dr R is $5,000. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2067 of 2007

MS FULHAM

Applicant

And

MR FULHAM

Respondent

REASONS FOR JUDGMENT

1. This matter is about what time E aged 12 years, W aged 10 years and M aged 6 years should spend with their father pending the receipt of a report from Dr R and the outcome of family therapy.

2. When the matter was before me on 14 October 2008 Mr Wright, on behalf of the mother, made an oral application for suspension of time.  Mr Graham, counsel for the father, opposed that application.  Mr Powe, the Independent Children's Lawyer, supported the mother’s application.

3. The application was made based on recommendations of the family consultant, Ms T.  Ms T had prepared a Children’s and Parent’s Issues Assessment Report (“CPIA”) dated 22 September 2008 (which became Exhibit A).

4. The issues assessment report indicates that E’s wishes were that she did not want to see her father.  W’s wishes were reasonably ambivalent but the Independent Children's Lawyer indicated that he is now saying he does not want to see his father.  M was showing signs that she may not want to see her father; she has not transitioned easily, although the father has said to the family consultant that it is better now that changeovers are at school.

5. The recommendations in Ms T’s CPIA are in the following terms:-

   ·Concerns are held in relation to the release of the assessment given the children’s state of views and their past experience of the consequences of expressing views different to their father’s. 

   ·A psychiatric assessment of both parents may be useful.

   ·A review of the current arrangements may need to be undertaken in light of the outcome of this children’s and parent’s assessment.

   ·It is recommended that unless the Court considers the views expressed by W and E have been inappropriately influenced, then the views expressed by the children should be given considerable weight by the parents as well as by the Court.

6. Ms T made it clear when the matter came back before me on 3 November 2008 that her recommendation was that in the short term, the children’s time with their father be suspended. 

7. On 14 October 2008 counsel for the father applied for an adjournment of the mother’s oral application for suspension of time, based upon two reasons:

   7.1.His client had only just seen Ms T’s written assessment and had not had a proper chance to absorb what was in it;

   7.2.There is evidence that counsel for the father wished to file from his client, his client’s partner and his client’s sister, setting out observations of the children whilst they were spending time with the father.

8. I accepted those reasons.  The other matter which influenced my decision on 14 October was the fact that no inquiries at that time had been made in relation to a Chapter 15 expert, nor the availability of family therapy. 

9. Consequently I adjourned the oral application for suspension of time for hearing to 3 November 2008 but made an order reducing the amount of time that the children spent with their father, taking it back from five nights a fortnight to three nights a fortnight.  I note that the five nights a fortnight had been in place since orders were made on 14 November 2007. 

10. The directions I made on 14 October 2008 were in the following terms:

    Application for suspension of time

    3.The mother be granted leave to make an oral application for suspension of the children’s time with their father.

    4. By 21 October 2008 the mother file and serve any evidence upon which she relies relating to that application.

    5. By 31 October 2008 the father file and serve any evidence upon which he relies relating to the issue of suspension of time.

    6.The matter be adjourned to Monday 3 November 2008 at 4.15pm in the Sydney Registry and the parties and the Independent Children's Lawyer may each attend by telephone if they choose.

11. The mother filed her affidavit relevant to the issue of suspension of time on 21 October 2008.  That affidavit details the fact that during the last school holidays W’s time with his father was aborted after two nights. W reported to his mother some fairly dysfunctional conversations between himself and the father.  It does not seem a matter of dispute that the father consented, after two nights, to W returning to his mother. 

12. The father filed no further affidavit material, notwithstanding the opportunity that had been granted to him. Counsel for the father said that he had drafted material but could not offer any explanation as to why it had not been filed and made available for the purposes of the hearing on 3 November 2008.

13. The Independent Children's Lawyer had complied with other directions in relation to ascertaining the availability of the Chapter 15 expert. Dr R had been chosen.   Nobody spoke against that choice. Counsel for the father indicated that his client consented substantially to the orders to be made for the preparation of a report by Dr R.  One of the things that Dr R will look at is the mental status of both parents and in particular the mother’s possible eating disorders and the father’s possible depression and personality disorder. 

14. Ms T told me on 14 October 2008 that the father had depression and had been treated for depression and she indicated that she had some concerns about the father having a personalty disorder.  Her concerns about him having a personality disorder were heightened as a result of further discussions she had with the father during the morning of 14 October 2008 after he had read her report. 

15. The Independent Children's Lawyer had also made inquiries in respect of possible family therapy.  It is my intention that that family therapy be conducted on a confidential basis.  Ms H, said to be an experienced family therapist, is available reasonably promptly to commence that therapy. Counsel for the father is going to obtain instructions from his client as to whether or not there is any issue arising from Ms H’s husband’s connection with Mr Wright’s firm at some time in the past.  In the event Ms H cannot start the therapy because of the father’s objection, then the Independent Children's Lawyer should make arrangements with Relationships Australia for the therapy to commence.  The only information I will receive from family therapy is that it has achieved some agreement or not.  In the event that it has achieved some agreement which is different from the interim order that I have made, then the matter can be relisted on seven days notice.

16. Otherwise the matter will be relisted before me after Dr R’s report becomes available.

17. I note that the matter is otherwise listed before me for hearing of the issue in relation to future schooling (again on an interim basis) on 27 November 2008.  The mother has filed material in relation to that matter. The father’s time for filing material has not yet expired.

18. In making interim orders of this nature I need to have regard to the matters set out in s 60CC of the Family Law Act 1975 (“FLA”). I am heavily guided in this matter by what the family consultant says is W’s and E’s current expressed wish and the reaction that they have to the current arrangements.

19. In relation to M, the family consultant said that whilst she is too young to express a view, if the elder two children are reacting against their father in the way described, then it points to some dysfunctionality to which M would be exposed should she go to see her father by herself.  Also, Ms T opined that at the current time M may be somewhat shielded from the existing problems by the attendance of the two older children and if they no longer attended, M’s situation may not be as good it is now.

20. On an interim basis I have to balance the benefit to the children of having a meaningful relationship with their father with risks that I am being told currently exist in the present situation and on the material I have I find that the second primary consideration is one to which I need give more weight.  I acknowledge that this is on material that has not been tested and in the future Dr R’s report and opinions may shed a totally different light on the family situation (as might a full exploration of the evidence at the final stage of this hearing). 

21. None of the other s 60CC matters weigh heavily in making a decision about short term interim arrangement.

22. When considering an arrangement of this nature I need to be mindful of whether or not the provisions of s 65DAA of the FLA have some applicability. They would if an order on an interim basis was made for equal shared parental responsibility. I do not, however, in my view need to consider the presumption of equal shared parental responsibility in the circumstances of this oral application for an interim order. I rely upon s 61DA(3) of the FLA to say that in this case I consider that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order of the nature that I am making.

23. I will review what I have done today once I have Dr R’s report available or if new material is filed by either party which would convince me to change my current position or if the parties, as a result of family therapy, are able to reach some different interim arrangement. 

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

Associate: 

Date:  19.11.2008