Gaulit and Bunker

[2009] FamCA 145

FAMILY COURT OF AUSTRALIA

GAULIT & BUNKER [2009] FamCA 145

FAMILY LAW – PROCESS AND PROCEDURE – Interim children’s matters – First hearing day – Case management

Family Law Act 1975 (Cth)

APPLICANT: MS GAULIT

RESPONDENT: MR BUNKER

FILE NUMBER: MLC 3776 of 2008

DATE DELIVERED: 2 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 2 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HANNON

SOLICITOR FOR THE APPLICANT: MEERKIN & APEL

COUNSEL FOR THE RESPONDENT: MR JAMES

SOLICITOR FOR THE RESPONDENT: PEARSONS BARRISTERS & SOLICITORS PTY LTD

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER:

1. THAT the husband and wife have the ongoing interim equal shared parental responsibility for the child … born … March 2000.

2. THAT the child live with the wife.

3. THAT each of the husband and wife forthwith enrol in a parenting course with Relationships Australia on an individual basis and instruct their solicitors to forward to the solicitor for the other party a Certificate upon completion of that course and any other course or program recommended by that organisation.

4. THAT pursuant to section 68L(2) of the Family Law Act 1975 the child … born … March 2000 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

5. THAT forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service. 

6. THAT within 48 hours of notification of such appointment the solicitors for the respective parties provide to Independent Children’s Lawyer copies of all relevant documents relied upon.

7. THAT the husband spend time with and communicate with the child as follows:

   (i)on each Saturday in the months of March and April 2009 between the hours of 9.00 a.m. and 7.00 p.m.;

   (ii)commencing on the first weekend in May 2009 on each alternate weekend from after school on Friday or 3.30 p.m. if a non-school day until 7.00 p.m. Sunday (inclusive);

   (iii)in each other week from after school on Wednesday until 8.00 p.m.;

   (iv)in 2009 from 4.00 p.m. on 24 December until 10.00 a.m. on 26 December inclusive;

   (v)in the event that any time of the husband with the child falls on the following Jewish holidays then his time is wholly suspended:

   a.Jewish New Year;

   b.Yom Kippur;

   c.First night Passover

   (vi)on Father’s Day from 9.00 a.m. until 6.00 p.m. and if Mother’s Day falls on a day when the husband is to spend time with the child then that time is suspended and the child is to be with his mother on that Sunday;

   (vii)in the June / July school holiday period for four (4) consecutive week days and likewise in the September 2009 school holidays;

   (viii)the Christmas / summer vacation long summer school holidays are reserved;

   (ix)such further or other time that the parties may agree upon.

8. THAT for the purposes of all such time to be spent by the husband with the child he collect the child at school or at the front gate of the wife’s property (but not to enter upon the property) and to return the child punctually at the conclusion of all such periods to either of the school or the wife’s home as is appropriate.

9. THAT save at the invitation or request of R Primary School, or any other primary school that the child may attend from time to time or for the purposes of delivery or collection to or from school or for any special sporting or educational event neither parent is otherwise to spend time at that school in the company of the child, or his teachers.

10. THAT both parties are permitted to attend any parent / teacher interview or other extracurricular activity away from the school to which parents are normally invited.

11. THAT each party is to keep the other informed punctually and in writing of any change of address, telephone number or e-mail address and all issues of the child’s medication or health treatment are to be advised to the other party.

12. THAT the husband and wife be and are hereby restrained from harassing, assaulting, abusing or denigrating the other (and it is noted that there are no admissions before the court for the purposes of this Order).

13. THAT the husband and wife are each restrained from discussing any aspect of the Family Court proceedings with the child or showing him any document or information of or relevant to the court proceedings.

14. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

15. THAT all extant child and parenting applications are adjourned to the Trial Notice List with priority as and from 28 November 2008 and the matter is to be listed to the docket of Registrar Kaur.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3776  of 2008

MS GAULIT

Applicant

And

MR BUNKER

Respondent

REASONS FOR JUDGMENT

1. The matter of Gaulit & Bunker is before the court in the Judicial Duty List.  Mr Hannan of counsel appears for the wife, Mr James of counsel for the husband.  I have already made orders on interim property and financial matters, and the dispute now concerns parenting and children's orders on an interim basis for the parties’ child born in March 2000, and now almost nine years of age.  This extempore judgment is being delivered in the course of a busy duty list at approximately 3.00 p.m., and with another defended case awaiting.  The reasons therefore need to be somewhat concise and limited.

2. The background history of this matter is set out in the affidavits.  Suffice for the purposes of this extempore judgment I record that the parties married in September 1997.  There is a substantial dispute as to separation, whether it be in mid-2000 or otherwise in January 2006.  Certainly the separation within the home is different from the physical separation date, but all of those matters and the significance in relation thereto can await another day.

3. The husband is 65 years of age, the wife 37.  The wife has remarried.  The husband has repartnered, and his new friend has recently arrived from China and is now living in his home, and a wedding date is planned for May of this year.  The husband lives in T, a northern suburb of Melbourne.  He owns or controls a significant property portfolio.  He does not work, and his income is from investments.

4. The wife lives in the C area in the south-eastern suburbs, and pursuant to her most recent affidavit is unemployed, though she has remarried, and has a background in numerous businesses and forms of employment, including in the late 1990s working within the then family business.  Again I make no findings on any business or financial aspect of this case.

5. The proceedings commenced with the wife's application in respect of many and varied child and parenting issues.  The husband responded with an amended document filed 17 February 2009, and this morning I granted leave to the wife to file a reply wherein she further particularised the orders that she seeks in respect of the child.  In very general terms and in the context of urgent interim extempore reasons, the orders now sought by the wife are:

   a)sole parenting responsibility;

   b)for the child to live with her;

   c)for the husband to have time spent with the child on a continuing basis on Saturday only for a period, and thereafter developing in the form set forth in her orders sought in the reply document which I have read.

6. The wife would have the parties both attend a parenting course and the husband attend an anger management course.  It would seem or I have otherwise indicated that I will make orders in the terms of paragraphs 6, 7, 8 and 9 of the wife's reply document, and otherwise I will make some orders in respect of the major religious holidays or feasts for each of them, that is the various Jewish holidays for the wife, Christmas Day, religious festival for the husband, and Mother's Day and Father's Day.

7. The husband, again in summary, would have an equal shared parental responsibility outcome.  He would look to an immediate position where the child is with him from 9 o'clock Saturday until 7 o'clock Sunday for two weekends, and thereafter alternate weekends from after school Friday until Monday morning, and otherwise in that alternate week, from after school on one evening, preferably Monday because he would take the child to swimming classes, until Tuesday morning.

8. He seeks school holidays from the June/July midyear term, and then effectively shared holidays from the September holiday period and thereafter.  He would not seek any direction to attend an anger management course.  He denies his various comments and displays of anger or frustration to the family consultant.

9. I am required by the Act to have specific regard to section 60CC and the best interests of the child, both primary and additional considerations.  I have read all of the affidavits of the husband and wife. I have read the additional affidavits filed on behalf of the wife. I have carefully read the family consultant's report of Ms W.  There is a very clear breakdown in the relationship between the parents.  The level of conflict and aggression is high, and that cannot help the child.  It cannot assist his integration into each family and his respect from the other family.  It is most unfortunate, but clearly at the moment the parents are more concentrated on the conflict and/or themselves rather than on the child.

10. I am additionally asked on behalf of the wife to have the husband psychiatrically assessed or at least to make that recommendation to the family consultant in the preparation of a report.  This I will not do.  If that is to become an issue, it needs to arise from the professional themselves.  There is nothing on the material now before me which would say that the husband has any psychiatric state of mind.  He is angry and troubled over past issues, and I read that there is some level of disharmony or breakdown in his relationships with at least one of his earlier born daughters, and/or others within the family.  I do not further comment upon or investigate those matters.  They may ultimately be, or may not be relevant in the wider determination of what is in the best interests of the child.

11. School has played a major role in the submissions I have received from counsel.  It does seem that the husband has had an amazing ability to be at school for all sorts of purposes on any number of occasions.  Again I limit my comments, but I am going to restore a level of normality for the child, and neither parent will be at the school unless requested by or at the invitation of the school or for a sporting event or a particular education event.  There will be no simple attendance for the purpose of adding to the educational knowledge of the child within school hours.

12. As to collection for the orders that I make, again it is a matter of distance, T as against R or otherwise the cost of travel.  Currently the husband does the travel, although there has been some only limited time spent with the child for a variety of reasons that I will not further here investigate.  These are interim orders, and I do not intend to set the guideline for future travel beyond the framework of these orders.  I will not interfere with the current arrangement that the father will either collect and/or return the child to or from school or the wife's residence.  Certainly the delivery is to the front gate, and not within the premises.

13. I am asked to make various orders to restrain any level of abuse or denigration by or on behalf of one party or the other, and I will do so on a mutual basis.  Neither party is to discuss any Family Court proceedings with the child or show any documents, and I am taking the liberty of emphasising that fact, and warning the parties that either of them who may breach that in future times need understand that it will be taken by the court as a very real question mark of their respective parental capacities, and certainly attitude as expressed in the section 60CC additional considerations.

14. I have reflected upon making an anger management course compulsory, but I will not do so.  The reality of this case is that if the husband does not control his anger, mind his language and show more maturity, it will ultimately be reflected in the final orders.  What he should be doing is forthwith enrolling in an anger management class, and having not just a certificate from that class, but some actual comprehension that he is not going to progress and develop the child’s lifestyle with his current displays of emotion and anger.  However, I leave that to the determination of the husband, and whether he's prepared to present a more meaningful outcome when this matter is next before the court.

15. I will make an order appointing an independent children's lawyer in this case, given the level of hostility, and particularly that which I find on reading the family consultant's report.  Any benefit to the child may be meaningful, and it is probably a good and independent expression of the child’s ultimate views and concerns of his parents or either of them, and a way to identify his best interests.

16. One aspect of this case that I have asked questions upon and which I regard as a matter of appropriate concern is the current failure of the husband to pay any amount towards the education cost, upbringing, development or care of the child.  Whatever he may have paid in past years, my understanding is now and for the past 12 months, notwithstanding his substantial portfolio of properties and asset income, he pays not a cent.  If so, if that remains unexplained that is wholly irresponsible, and is clearly a matter that courts are entitled to have regard to hereafter.  He can afford any number of visits to China and any level of relationship with his friend, but for some reason, in circumstances where the wife and her new husband have few, if any, assets and little available income, he has chosen to pay minimal if any child support.

17. If those matters are ultimately proved incorrect, they have not in any way influenced the interim orders.  They are matters that will be relevant to final property settlement, and financial adjustment, and towards showing the attitude and capacity of a parent towards their child.

18. Ms W as family consultant has prepared an issues paper dated 4 February 2009.  I have carefully read that document.  It identifies the key issues, and then is very helpful in dealing with the child and his relationship with each of his parents.  By agreement it is admitted into evidence.  The child is described as lively, enthusiastic and extremely well read.  He has a great curiosity about the world, and loves his computer.  I read that sentence as a significant compliment to the child, given the conflict surrounding him in the households in which he spends time.

19. Clearly the child is caught between his parents.  The report comments that he wants as much opportunity to be with parents as is realistically possible, but does not want to show signs of disloyalty.  When with the child, it is clear from this report that both parents are loving and concerned.  However, individually in what they saw fit and necessary to tell the family consultant, parents, particularly the father, are immensely critical of the other.  On page 3 of the report, Ms W states that:

    “The husband is critical of every aspect of the parenting that [the child] experiences in his mother's home ... he is profoundly angry at the wife and even more so with her parents”. 

20. His criticisms and complaints are identified in that page, and some of them are inappropriate in any event.  I record that I have read Ms W’s report and the summary and the future directions.  I do understand that she has concluded that the child should spend time with the father on alternate weekends, initially Saturday morning until Sunday evening, and then moving swiftly, if appropriate, to Friday evenings until Monday morning with other times to be spent in accordance with her recommendation.

21. I have had the additional benefit of reading the further reports and listening to counsel and having a clear view of the unfortunate relationship between the parents.

22. For those very brief background reasons and given the urgency of the time and the other matters to be hereafter heard and determined, I indicate that in the best interests of the child, but on an interim basis only, and without intending to dictate any future course which will be subject to future facts and recommendations, the orders that I regard as appropriate are as follows.

23. As to parenting, I will make a joint equal shared ongoing parenting order on a shared basis, but only until further order.  The future outcome of this case may be very different.

24. The child should live with his mother.

25. I will appoint an Independent Children's Lawyer.

26. I will require a parenting course with Relationships Australia as soon as practicable, but on an individual basis.

27. I will require, save at the invitation or the request of the school, or for the purposes of delivery or collection, or to attend a sporting or education event, the neither of the parents are otherwise to spend time at R Primary school.  I emphasise that by an education event, I do not mean daily lessons.  I mean a special occasion where other parents are there, otherwise the child is to have the ability to mingle with his peers without parental overview or teaching.

28. I will not order anger management, but I have addressed that issue in my reasons.

29. Clearly one ongoing matter of concern and that which I have balanced in relation to "time spent" orders is the careful introduction of the child to the new friend of the husband, a lady who is identified in the papers and known as Y.  They have not met.  They have spoken on the phone and an email has been sent, but the meeting must take place in appropriate timing, and that relationship must be carefully introduced so that the child is comfortable and understanding.  I put no other fetter on that relationship, subject to any further future evidence.

30. As to "time spent" occasions, I am not going to accept all of the recommendations of Ms W.  I am going to pronounce interim orders.  They will be structured, but I do not know the future date of matters in this court.  I will adjourn all children and parenting applications to a trial notice list with priority from 28 November 2008, and direct the matter be part of the docket of Registrar Kaur for listing thereafter.

31. As to the "time spent with" orders, they can recommence next Saturday, and for the months of March and April, the child can spend every Saturday with his father between 9.00 a.m. and 7.00 p.m.  Commencing on the first weekend in May, his time with his father will escalate, and mindful of collection from school availability and the relationship between parents, I propose to immediately extend that period to each alternate weekend from after school Friday until 7 o'clock Sunday.  I most certainly will not extend the period until Monday morning.  In the other week there will be a period after school on a Wednesday from break-up of school until 8.00 p.m.  I deliberately choose 8.00 p.m., a later hour, because of traffic, and the cross-travel from T to R. 

32. I will make orders for special days, including the Jewish holidays, Christmas Day, Mother's Day, Father's Day.  The holidays at this stage, and subject to further hearings of this matter hereafter, I do not intend to make Christmas holiday periods.  I will permit four days consecutive in the June/July school holidays period, that is a total of four days, and likewise in the September school holiday period.  Each of those periods of four days can be taken in the off week, and I will not otherwise interrupt the ongoing "time spent with" orders.  In effect that means that in September for example, the father would have one weekend during school holidays from Friday to Sunday, and in the other week, four days inclusive of the Wednesday afternoon, but without touching on the next weekend.  I am not confident to project orders out beyond September school holidays save on the special occasions and continuing the weekend orders.

1. There will inevitably be other issues and occasions that arise, and these parents will simply have to show some level of maturity and deal with those issues.

2. Whilst there were other matters touched upon by counsel for both parties, I have not the time, nor do I see the need to now deal with these matters.

3. I conclude with the expectation that the husband will reassess his financial contributions to the child, and there will be paid to the wife or otherwise to the Child Support Agency the proper meaningful sum that will actively assist the child’s upbringing.  I fix no figure as I do not have the jurisdiction, but most certainly when this matter comes before this court, a Judge will no doubt want to understand the financial commitment of the father to his son.

4. For those very brief reasons, which I will have transcribed and placed upon the court file and made available to all parties, I will now draft and pronounce the following orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: