FURY & FURY

[2013] FamCA 564

FAMILY COURT OF AUSTRALIA

FURY & FURY [2013] FamCA 564

FAMILY LAW – CHILDREN – best interests – interim application – with whom the children shall live and spend time – children to live with the mother and spend supervised time with the father – earlier consensual interim orders for equal time not reasonably practicable or in the best interests of the children – high parental conflict – children acting out when with the mother – the Family Consultant considered the father was aligning the children against the mother

Family Law Act (Cth) 1975 ss 60CC, 62B, 65DA, 65DAA, 91B

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Fury

RESPONDENT: Mr Fury

INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW

FILE NUMBER: NCC 2683 of 2012

DATE DELIVERED: 8 February 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Turnbull Hill Lawyers

COUNSEL FOR THE RESPONDENT: Mr Windus

SOLICITOR FOR THE RESPONDENT: Mason Lawyers Inc Wood Roberts

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. Orders 1.2, 1.3, 1.4 and 1.5 made on 15 November 2012 are discharged.

1. The children B, born … 2001, C, born … 2003, and D, born … 2004, (“the children”), shall live with the mother.

1. Each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the father for 2 hours each week at one of the following venues in descending order of priority:

a.E Contact Service, F Town New South Wales; or

b.G Care (…); or

c.Such other contact centre as the parties may agree.

(“the supervisors”)

1. For the purposes of implementing the preceding Order:

a.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisors;

b.Each party shall comply with all reasonable requests and directions of the supervisors;

c.The mother shall cause the delivery of the children to, and the collection of the children from, the supervisors at the commencement and conclusion of the time spent by the children with the father;

d.The dates on which, and the times during which, the children spend supervised time with the father shall be determined by the supervisors;

e.The costs of the supervision are to be shared equally between the parties; and

f.Leave is granted to the parties to provide a sealed copy of these Orders to the supervisors.

1. The mother shall cause the children to be presented to the Independent Children’s Lawyer by 5:30 pm today for the purposes of the Independent Children’s Lawyer explaining these Orders to the children and, if thought appropriate by the Independent Children’s Lawyer, the reasons given for such Orders.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. Any and all outstanding applications for interim orders are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fury & Fury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2683 of 2012

Ms Fury

Applicant

And

Mr Fury

Respondent

And

Independent Children’s Lawyer

Ex tempore

REASONS FOR JUDGMENT

1. The parties to these proceedings unfortunately endure a fraught relationship.  They have three children who are now aged 12, nearly 10 and eight years of age, respectively. The past consensual arrangements reached between the parties about the care of the children have proven an abject failure.

2. The parties separated in or about May 2012.  At that point in time the parties agreed that the children would spend time with each parent for equal time and, for that purpose, they entered into a reasonably complicated arrangement where the children’s residence with each of them was split over fortnightly periods.

3. The mother commenced the current proceedings in October 2012 following the father’s unilateral decision to retain the children in his care some weeks before in September 2012. 

4. The parties and the children were referred to the Family Consultant and the Family Consultant produced a memorandum dated 16 October 2012, in which opinions and recommendations were expressed that were critical of the father and more consistent with the proposals of the mother for future parenting orders.  In the main, the Family Consultant recommended that the children live primarily with the mother.

5. An interim hearing as to parenting orders was due to be conducted between the parties in November 2012 but the need for a hearing was averted when the parties presented the Court with consent orders.  With the consent of the parties and over the objection of the learned Independent Children’s Lawyer, the Court adopted the proposal mutually submitted by the parties and made orders for the parties to have equal shared parental responsibility for the children and for the children to live with the parties for equal time on weekly rotations. An order was made for the children to be exchanged between the parties at a public venue and an additional order was made compelling the parties to submit the children to family therapy with a psychological organisation. 

6. It was only a month or so later on 20 December 2012 that the mother filed an Application in a Case seeking to review the interim parenting orders on the basis that the arrangements had, within a space of weeks, become chaotic. One of the very few things the parties agree upon is that they have inordinate difficulty in having the children comply with the orders they agreed upon in November. In the course of submissions the chaos has been described as “a disaster” and more benignly as the orders “not working”. 

7. It is accepted across the bar table by the parties and the Independent Children’s Lawyer that the Court simply cannot sit on its hands. Something must be done to change the consent orders made in November 2012. The debate is about just what should be done.

Proposals and evidence

1. The proposal of the mother set out in her Application in a Case filed on 20 December 2012 is that the children should live with her and spend only supervised time with the father at a contact centre for two hours each weekend.  In support of her proposal the mother relies upon her affidavit filed on 20 December 2012. 

2. Conversely, the father proposes in his Response filed on 31 January 2013 that the children live predominantly with him and spend time with the mother each alternate weekend and on other special occasions. In support of his proposal the father relies upon his two affidavits filed on 9 November 2012 and 31 January 2013.

3. As I have already indicated, the Independent Children’s Lawyer previously did not agree with the consensus reached between the parties. In November 2012 the Independent Children’s Lawyer tendered a Minute of Order that he proposed, which on that occasion became Exhibit B. Today the Independent Children’s Lawyer, subject to a qualification which I will shortly explain, adopted and proposed the orders set out in that Minute of Order tendered months ago. In essence, he proposes that the three children live with the mother and that the children spend time with the father for two hours each alternate week at a contact centre.  As would be apparent, his proposal is more consistent with that of the mother and, in fact, he proposes that the children see less of the father than even the mother proposes. 

4. The qualification placed by the Independent Children’s Lawyer upon his proposal was some degree of circumspection about the appropriateness of such orders for the eldest child, who I have already said is 12 years of age. The Independent Children’s Lawyer expressed some equivocation about whether the relationship between that child and the mother had now corroded to such an extent that it was almost impossible to salvage and for that reason the child should remain living with the father.

5. Before explaining reasons for the orders that I intend to make it is apposite to explain at this point that I do not intend to separate the children’s residence at this interlocutory stage. The mother did not propose it, the father did not propose it and, in the end, neither did the Independent Children’s Lawyer.  Such an outcome was mooted merely as a possibility by the Independent Children’s Lawyer. There is simply insufficient evidence to warrant a finding at this point in time that it is in the best interests of the eldest child to make orders providing for him to live in a place different from his younger siblings.

6. The Independent Children’s Lawyer tendered a number of documents extracted from those produced on subpoena by the New South Wales Police. Those documents became Exhibits ICL1 to ICL5 inclusive. The tender of those documents merely supplemented the tender of documents by the father, whose tenders also included documents extracted from those produced on subpoena by New South Wales Police and Ms H, psychologist.

7. The Independent Children’s Lawyer did not call evidence independently from a witness but did invite the Court to read the Memorandum of the Family Consultant dated 16 October 2012. The contents of that Memorandum have also been taken into account. I should say that, although the evidence of the Family Consultant is taken into account, at this stage her opinions and recommendations remain the subject of strident challenge by the father. Nonetheless, that is the only evidence at this point in time, besides the documents which have been tendered as exhibits, which attracts any inference of independence and objectivity.  The evidence adduced in affidavit form by the parties is largely incompatible, which brings me to the point where it is necessary for me to give a brief explanation as to the applicable legal principles.

Applicable legal principles

1. The procedure for conducting an interim hearing has been authoritatively established by Goode & Goode (2006) FLC 93-286 in which case the Full Court said:

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. Relevant findings of fact may only be made by the Court based on uncontentious evidence, of which there was little, or inferences that fairly arise from the available evidence, of which there were few. 

3. Although these are interim proceedings they are still parenting proceedings and orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of the parenting order.

4. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

5. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies in section 60CC the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

6. The Court is required to apply a rebuttable presumption that it is in the best interests of the child for the child’s parents to be allocated equal shared parental responsibility.

Conclusions

1. As I have already indicated, when the parties reached agreement in November 2012, they agreed that they should have equal shared parental responsibility. Today, some three months later, neither party nor the Independent Children’s Lawyer advocated for any change to the allocation of that parental responsibility. In the circumstances, I assume that neither party suggests the presumption of equal shared parental responsibility either ought not apply or is rebutted. Were it otherwise, they would have made a submission to the contrary. Their mutual wish to retain equal shared parental responsibility manifests an acceptance that they each have the capacity to participate in decisions which have a bearing upon the long‑term interests of the children.

2. However, when equal shared parental responsibility is allocated to parents, whether that is done presumptively or otherwise, the Act mandates, pursuant to section 65DAA, that the Court must give consideration to residential arrangements under which the children live either for equal time with both parents or, alternatively, live predominantly with one and spend substantial and significant time with the other.

3. It is neither practicable nor in the children’s best interests to live with the parties for equal time. That was the very arrangement that the parties agreed upon in November 2012 and it is the very arrangement that has now been described in submissions quite fairly as “a disaster”. Since neither party sought such an outcome and both accepted the equal time arrangement needed revision, it would be an impossible outcome to force upon the parties and the children continued adherence to that failed regime. Necessarily then, the Court must give consideration to the children living primarily with one and spending substantial and significant time with the other.

4. In the determination as to with whom the children should live, as I have already remarked, the Court is enjoined to consider the factors prescribed by section 60CC of the Act. Without referring to those factors individually I now turn to address the evidence placed before the Court which has a bearing upon the application of those statutory factors.

5. The children previously had meaningful relationships with both parents before the matrimonial separation. Such an inference clearly arises from the father’s evidence (at paragraph 11 of his first affidavit) that following separation he and the mother agreed the children should live with them for equal time. It beggars belief that the father would have agreed to such an outcome unless he was satisfied with the mother’s parenting capacity and that it was in the best interests of the children for them to live in such a residential arrangement.

6. For reasons about which the parties have significantly divergent opinions, since that arrangement was initially implemented in early 2012, the children have become oppositional, defiant and abusive to the mother. According to the evidence adduced by the mother, she has become so concerned about their mental health that she has on occasion called upon assistance from police. She deposes (at paragraph 78 of her affidavit) to the behaviour of the two eldest children, which has included them scratching the paintwork on family vehicles, damaging TV screens, intentionally breaking glass windows, damaging the walls of her house, spilling paint on her house, defacing parts of the house with graffiti, punching holes in lounges, breaking other chattels and causing other damage about the household.

7. When the children were interviewed by the Family Consultant in October 2012 the father acknowledged that the children were oppositional to spending time with the mother. He told the Family Consultant that the children do not wish to spend time with the mother and that they require counselling. The Family Consultant noted (at page four of her Memorandum) it is common ground between the parties that the children were made aware of the details of the breakdown of the matrimonial relationship, which had its origin in the relationship formed by the mother with another person who was a soccer coach of the children.

8. The father concedes the children were made aware of the mother’s new relationship and the father’s unhappiness about its occurrence. As a consequence, the father concedes he took steps to cease the children’s involvement in soccer and the children were upset about that. The view of the Family Consultant, expressed at various points throughout the Memorandum, was that the two boys had by then become quite aligned with the father and had started to become estranged from the mother.

9. The children did not present to the Family Consultant as being afraid of the mother, but rather, merely angry and disrespectful towards her. The Family Consultant expressed her opinion in the following way (at page six of her Memorandum):

   The alignment process is of significant concern to the Family Consultant as, if left unchecked, it has the potential to evolve towards alienation.

10. The Family Consultant also observed that the father became quite enraged at the suggestion he may be aligning the children and became hostile towards the Family Consultant. The father’s position was that he was behaving in a protective manner and in accordance with the children’s wishes. As would be apparent, the opinion of the Family Consultant about the process of alignment is perfectly consistent with the father’s genuine and honest belief that he is not aligning the children. It is perfectly possible the father is not doing so deliberately, but is doing so inadvertently.

11. The Family Consultant “strongly recommended” that the children immediately re-commence spending time with the mother, but she found the father highly resistant to such a proposal. Despite the father’s resistance to that proposal when speaking with the Family Consultant in October 2012, that is what he subsequently did in November 2012 when he reached an agreement with the mother for the children to spend equal time with the parties.

12. The father’s evidence is consistent with his comments to the Family Consultant. He asserts that he has done his best to abate the conflict between the mother and the children. He says (at paragraph 109 of his first affidavit):

    Following the separation from [Ms Fury] I have been extremely conscious of the effects that the change may have on the children.  It has been my priority to ensure that the children feel loved by both parents.

13. He said (at paragraph 153 of his first affidavit):

    I deny any implication that I have been influencing them in relation to their behaviour when they go into their mother’s care.

14. He said (at paragraph 191 of his first affidavit):

    I have done all that I can to encourage the children to spend time with their mother and to enjoy their time with their mother and I say that any implication that I have been influencing the children against their mother is completely untrue.

15. He said (at paragraph 193 of his first affidavit):

    Since separation the three children have been reluctant to spend time with their mother. This was especially so by the two boys [B] and [C].  [D] expressed a reluctance to return to her mother’s home at changeovers although not as strongly as the two boys.

16. He said (at paragraph 194 of his first affidavit):

    On each occasion I have encouraged the children to go with their mother, although it has become harder each time.

17. The same theme is evident from his most recent affidavit filed on 31 January 2013.  The father says (at paragraph 67):

    I have spoken very harshly to the children about this [being a reference to their aberrant behaviour with the mother]. I have told them their actions are completely unacceptable and I told them they would have no privileges whilst they were with me in my care for that week.

1. He said (at paragraph 69) he had reported to a police officer that as a father he will do his very best to make sure that the children’s aberrant behaviour with the mother would never happen again.

2. He said (at paragraph 71):

   I have made it clear to them [the children] that their behaviour is unacceptable and they should not behave in this way.

3. I am prepared to accept the father at his word, but one thing becomes clear; despite the father’s very best endeavours and despite exercising his parental capacity to its maximum he is simply unable to convince the children that it is a good idea and in their best interests for them to continue enjoying the meaningful relationships that they formerly enjoyed with their mother. 

4. It could not be said that the children are obtuse. They are intelligent and mature young children for their age. The father tells us (at paragraph 108 of his second affidavit) that the behaviour reported by the mother about the children’s behaviour is abnormal and out of character for them. They are well behaved when in his care and at school. B, for example, has been appointed a vice‑captain of his school and awarded scholastic prizes for his academic ability. He has even participated in TV programs as a consequence of his level of intelligence.

5. Despite their intelligence and maturity and despite their ability to act normally with the father, at school and in other environments, the father is unable to exercise his parenting capacity in such a way as to make the children behave normally when visiting the mother. Those facts are uncontroversial.

6. The father wants the children to be secure and emotionally stable, as any sensible parent would.  He says (at paragraph 91 of his second affidavit):

   I want my children to be happy and feel safe and secure.  I am concerned that their present behaviour may affect them in the future.

7. That is another point upon which the parties agree. The mother is similarly concerned about the security and safety of the children and similarly concerned about their emotional health now and into the future.

8. What the parties disagree about is why the children are behaving in the way they are. The mother asserts, with the support of the Family Consultant, that it is because the children have either been deliberately or inadvertently aligned against her by the father. The father rejects that. He says that the explanation is some incapacity on the part of the mother.

9. When I look for objective corroboration and verification of their views I find some for the mother in the opinions expressed by the Family Consultant and the submissions made in support by the Independent Children’s Lawyer. When I look for something similar to support the father I find little or none.

10. My attention has been drawn to two things by the learned solicitor on behalf of the father.

11. Firstly, the contents of paragraph 12 of his first affidavit in which the father merely deposes that the mother “had difficulty maintaining control and discipline of the children during the times in which they had been in her care” and that those “problems were present prior to separation”. I cannot repose much weight in such an isolated opinion of the father, particularly in circumstances where he thought it was in the children’s best interests immediately following separation and again in November 2012 for the children to live for equal time with the mother. 

12. Secondly, the learned solicitor also drew my attention to the fact that the mother has on a number of occasions involved the police in the chaos within her household. In ordinary circumstances that might be a grave concern, but I do not find it to be so grave a concern in the circumstances peculiar to this case. In circumstances where intelligent, mature young children, meeting developmental milestones, behave perfectly normally in the care of the father and at school, but who behave so aberrantly and contrarily when they are in the care of the mother such that their behaviour amounts to criminal conduct (but, perhaps, for application of the legal maxim of doli incapax), the mother’s resort to the police for some form of assistance when such assistance is not available from the father is not as unorthodox as it might seem at first instance.  I accept that the mother is simply at her wits end.

13. I referred to how the Family Consultant is generally supportive of the mother’s position. There is clearly no doubt about the opinion of the Family Consultant who blames the father for the children’s histrionic and erratic behaviour. The Family Consultant (at page 13 of the Memorandum) repeats her view that the father is actively aligning the children and involving them in the parental conflict so as to encourage them to reject the mother. It was pointed out to me by the solicitor for the father that such opinion is couched in terms more consistent with a possible hypothesis than a probable one, but I am conscious the terminology has to be considered in light of the comments made earlier in the Memorandum, particularly (at page 6 thereof) where the Family Consultant said quite boldly:

    The two boys are quite aligned with the father and have started to become estranged from the mother and are quite rejecting of her at this point in time.

14. On the basis of the view formed by the Family Consultant she recommended that the residence of the children be reversed. At that point in time the children were living primarily with the father. Nevertheless, she proposed that the children’s residence be reversed so that they live primarily with the mother and that further, at least on an interim basis, in order to reduce the risk of further emotional and psychological harm to the children, the time spent by them with the father should be curtailed by imposing supervision at a contact centre.

15. That is the current submission of the mother.  It is also the current submission of the Independent Children’s Lawyer. I accept the Independent Children’s Lawyer’s submission that the evidence put before the Court as to occurrences within this family since that opinion was expressed by the Family Consultant have done nothing but to corroborate the preliminary views of the Family Consultant. 

16. An argument of some merit put on behalf of the father by his learned solicitor was that the reversal of the children’s residence at this point may lead to significant short‑term emotional harm to the children. That is a factor which militates against any residential change. However, it occurs to me that it is not necessarily so that emotional harm will be suffered by the children. Whilst it remains a possibility, it is equally possible that the reversal of their residence might release the pressure felt by the children to align their interests with those of the father and against the mother so that they then feel free to enjoy the relationships they unarguably previously enjoyed with the mother and the problems which have been present in recent months might soon dissipate.  When pressed to explain to the Court the evidential foundation which made the former inference stronger than the latter, the solicitor for the father was unable to provide a persuasive explanation. I am therefore left in a situation where the latter inference is every bit as strong as the former.

17. When I take that into account and balance that consideration against what clearly appears to be the prospective emotional harm the children will suffer if they continue to live in a residential arrangement under which they continually feel pressured to reject the mother and align their interests with the father, I am satisfied on the available evidence, without making any final findings of fact, that the best and most cautious course that ought be adopted at this point is to make orders for the children to live primarily with the mother. 

18. Those conclusions are consistent with the preponderance of the evidence and reflective of the statutory considerations the Court is obliged to take into account pursuant to s 60CC of the Act.

19. The Independent Children’s Lawyer invited the Court to consider making an order inviting the NSW Department of Family and Community Services to intervene in the litigation pursuant to s 91B of the Act. I decline to make such an order.

20. It is my intention to make an order which requires the presentation of the children to the Independent Children’s Lawyer early this evening for the Independent Children’s Lawyer to provide, as far as is possible, an independent and unbiased explanation for the orders I am shortly about to announce. Such an order was the subject of consent from the Independent Children’s Lawyer.

21. Having offered the reasons I so far have, it has not escaped my attention that the possibility foreshadowed by the solicitor for the father may eventuate. It does remain a possibility that the children, or one of them, will act out and object to orders which require their residence to be situated primarily with the mother. However, for reasons I have already explained, I am satisfied that possibility is no greater a possibility than some of the others I have postulated and I am satisfied that the risk is attenuated as far as is within the power of the Court by making provision for the presentation of the children to the Independent Children’s Lawyer for an independent explanation. 

    ORDERS DELIVERED

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for Judgment of the Honourable Justice Austin delivered on 8 February 2013.

Associate:

Date:  1 August 2013