Glider and Glider

[2010] FamCA 549

FAMILY COURT OF AUSTRALIA

GLIDER & GLIDER [2010] FamCA 549

FAMILY LAW – CHILDREN  – BEST INTERESTS – Interim orders concerning children’s time with mother

Family Law Act 1975 (Cth) s 60CC

Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Glider

RESPONDENT: Mr Glider

INTERVENER: Department of Communities (Child Safety Services)

FILE NUMBER: BRC 3651 of 2009

DATE DELIVERED: 31 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 31 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Provan, Harrington Family Lawyers

THE RESPONDENT:	In person
SOLICITOR FOR THE INTERVENER:	Ms Helsen, Crown Law

THE INDEPENDENT CHILDREN’S LAWYER Ms Keyworth, Family Law Doyle Keyworth & Harris

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1. In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. During school terms the children spend such time with the mother as may be agreed but failing agreement:

   (a)on Wednesdays from after school until 7.00pm, with the mother to collect the children after school at school and return them to the father at 7.00pm at McDonalds Y;

   (b)on two out of each three weekends, the first to be 4-6 June 2010, from after school on Fridays until 7.00pm on Sundays (or 7.00pm Mondays if the Monday is a public holiday or pupil free day), with the mother to collect the children after school at school and return them to the father at 7.00pm at McDonalds Y.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3651 of 2009

MS GLIDER

Applicant

And

MR GLIDER

Respondent

REASONS FOR JUDGMENT

1. This is a Magellan matter concerning three children, C who is nearly 15, J who is 10 and F who is 5, nearly 6. The matters for decision for me today concern only J and F.

2. The history of the matter is that pursuant to orders made by Baumann FM on 10 June 2009, as varied by consent before Baumann FM on 11 September 2009, the children until recently lived with the mother.  However, after intervention by the Department of Community Services the children have lived with the father since 6 April 2010 and continue to do so.

3. The matters before the Court have arisen by way of an application in a case by the father filed 17 May 2010 seeking interim orders until the Magellan trial of this matter which it is anticipated may be likely to take place as early as 5 July 2010.  This has been indicated to the parties apparently by Registrar Kane, the Magellan Registrar.  The interim orders sought by the father are that until the trial the children J and F spend time with the mother on each Sunday between 10am and 5 pm and on each Wednesday from after school until 6 pm.

4. However, with the assistance of Mr Provan, Solicitor, for the mother, and Ms Keyworth, Solicitor, who is the independent children’s lawyer, the parties have very much narrowed what otherwise would have been a lengthy and contentious interim hearing by agreeing that until further order during school holidays the children spend specified time with the mother, which, basically, equates to a little more than half of the imminent June/July school holidays and all of the September/October school holidays.

5. Further, the parties have agreed that during school terms J and F spend time with the mother on every Wednesday from after school, with collection to be at school until, on the mother's proposal, overnight, with the mother to return the children to school on Thursday mornings and, on the father's proposal, until 7 pm on the Wednesday evening, with the changeover to be at that time at McDonalds, Y.

6. The parties further have agreed that during the school terms J and F will spend time with the mother from after school on Fridays for two out of every three weekends, on the mother's proposal to extend until Monday morning before school, or Tuesday, if the Monday be a public holiday or pupil free day, and on the father's proposal to end at 7 pm on Sunday evening at the same changeover place, at McDonalds, Y.

7. The children attend the G State Primary School and pursuant to an existing order will continue to do so, at least on the interim basis.  The father lives at G.  The mother lives at E.  It is common ground that the travelling time between G and E, and in particular between the children's school at G and E, is about 35 to 40 minutes one way, depending upon traffic.  It is common ground, also, that if the mother's proposal is the subject of the order she would need to leave E with the children no later than about a quarter to 8 each morning to ensure that they arrive at school by about half past 8, the school time for class being at about 8.50 on each school day.

8. It is plain that these interim proceedings must be decided on the basis of the children's best interests between now and the Magellan trial.  The pathway to that end is as set out in Goode v Goode (2006) FLC 93-286 at 82.

9. The parties do not seek today that I determine any matter of parental responsibility on the interim basis.

10. In relation to the children's best interests, I turn now then to the s 60CC matters.  It does not appear to me, and there is no specific evidence either way, having regard to the imminent Magellan trial, whether the children's existing relationship with the mother may be likely to be impaired according to whether their time with her is or is not overnight.  Although it is plain that the benefit to the children of having a meaningful relationship with both of the children's parents is prospective, there are other more pressing matters in the case to consider, such that I conclude that neither of the parties' proposals in the interim would be more likely than the other to impair any existing meaningful relationship between the children and the mother, nor promote that in the meantime. 

11. There is, however, a significant body of evidence that there is a need to protect the children from neglect in the mother's home.  In this regard I would first refer to the somewhat disturbing photographs annexed to the father's affidavit of the state of the mother's home prior to her recent eviction from it.  The mother says in her affidavit  that she now has arranged a new home and has a new tenancy agreement entered on 6 May 2010 for which she has paid the rental bond and would capably be able to look after the children in that new premises.

12. However, I would refer to the report of Dr M, psychiatrist  engaged in the matter, annexed to her affidavit filed on 20 April 2010, page 10, referring to what she describes as the mother's problems with neglect of the children and that, in her care, the children seem to have suffered neglect.  The photographs to which I have referred give somewhat graphic illustration of that.  It is not my role to make any findings of fact today, however I am quite able to pass observation on the evidence if I consider that to be appropriate.

13. Dr M’s report concluded that, if the allegations of neglect were demonstrated to be true, the children would be likely to be better cared for by the father.  Indeed, it is that which seems to have led to the change of residence in April 2010.

14. That, however, is not the end of the matter.  The family report by Mr O, consultant social worker, at par 106, expresses concern regarding the mother's then current primary care of J and F and the lack of schooling of J.  He refers to the history of lack of attendance at school and a comment by J that he is often hungry when he is with his mother, which is confirmed by the fact that the mother has not sent him on occasions to school due to an inability to supply lunch, that is, a cut lunch or a suitable lunch for the child to take to school.

15. There is a strong indication on the material, without making findings, of course, that the longer the period of time the children spend with the mother the more likely it is they may suffer neglect.  However, of particular concern is the prospect of the mother's ability to get the children from E to school if the return time were to be on a school morning. 

16. Ms Keyworth, Solicitor, who is the independent children’s lawyer, made a submission particularly expressing this concern and pointing out that if the children should have overnight time with the mother before school days then not only is there the concern of the mother not being able to get the children to school but the concern as to the provision of dinner overnight, breakfast the next morning and the provision of a school lunch for the school day.

17. Now it is the case that the children will be spending holiday time with the mother, as I have mentioned.  It is common ground that on the last day of the holiday time, be it June/July or September/October, changeover will not be on a school morning but at McDonalds, Y, so that these particular considerations will not arise for holiday time but certainly arise during the school term.

18. On the other hand Mr Provan, Solicitor, for the mother, has pointed to a significant history of domestic violence between the mother and the father, and urges that a return of the children to their school on the respective mornings mentioned would be in their best interests as far less likely to lead to conflict between the mother and the father in the children's presence, which has occurred previously. 

19. Mr Provan referred to the mother's affidavit filed 28 April 2008, pars 65‑115, as evidencing serious matters of family violence and serious matters also concerning the father's ability to manage particular situations.  For example, there is a reference at par 98 of that affidavit as to the father drinking a lot during the marriage and that he got very violent and angry when he drank vodka; several alleged incidents describing violent conduct; the circumstance that he was for a while on Lithium; and at par 112 the circumstance that in 2008, according to the mother, it appears he may have attempted to commit suicide by hanging himself by a rope by the neck underneath the parties' house.

20. These matters have yet to be tested at a trial but, certainly, the background matters raise considerable concern as to the domestic violence history between the parties.  It is common ground that in about 2009 the mother and the father each had a temporary protection order in their respective favour but that they were either dismissed by consent or withdrawn and that a police temporary protection order obtained about the same time also was either dismissed or withdrawn.  Rather than the formality of the existence or non existence of the orders, however, it is the matter of the underlying alleged circumstances leading to such, as set out in the mother's affidavit, which is of concern.

21. As to these matters, Dr M, at page 10, expressed the opinion that the father in her view exhibited a depressive disorder and that the corroborative material would indicate that this is a Bipolar Affective Disorder type 2, although the father denied that.  Dr M recorded that according to the father's account he has not exhibited symptoms since ceasing his Lithium and at the time of her assessment did not exhibit any mood elevation or depression.  She recorded that the father denied the suicide attempt but observed that corroborative material from a Dr U appears to indicate that it did occur. 

22. She concluded, however, that at the time of her assessment the father was not exhibiting significant symptoms and appeared to demonstrate appropriate concern for the children at the time of her assessment, March and April 2010.

23. The background matters to the case are such that any views expressed by the children I would give little weight to on the interim basis, particularly having regard to their ages.  The nature and relationship of the children with each of the parents has been characterised by the background of the domestic violence matters to which I have referred.  The entrenched conflict between the parties has effect that whether each or either has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent must be tested at the trial.

24. The narrow matter for decision has effect that I need not consider the likely effect on changes in the children's circumstances.  The matters of practical difficulty and expense have been overcome by the consent component of the orders.  I have referred already to the capacity of the children's parents to provide for the children's needs.  It is not an occasion, on this interim basis, to consider their emotional and intellectual needs.  That will be a matter for the trial.  The maturity, sex, lifestyle and background of the children will be a matter to be explored at the trial. 

25. The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children's parents, despite the matters to which I have referred, is abundantly plain by each of them being here today to be involved in submissions as to proper parenting orders to be made on the interim basis.  I have mentioned already the family violence background.  This is not a matter in which I need consider whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children, given the imminence of the Magellan trial.

26. Ms Helsen, Solicitor, for the Department of Communities (Child Safety), referred to an affidavit prepared by Mr S filed by leave today.  However, Ms Helsen mentioned that the Department does not have concerns presently with the children living with the father and does not have any views either way as to the particular matters presently in issue.

27. Having considered the statutory matters which I am required to consider and the evidence and the careful submissions of the parties, it appears to me that on the interim basis the children's best interests would be met by my accepting the proposals supported by the independent children’s lawyer, which is the father's proposals, for the reasons advanced by Ms Keyworth, to which I have made extensive reference already and need not again set out.

28. In short, although the mother undoubtedly sincerely wishes to provide for the children a tidy home with appropriate food, there is perhaps a little way for her to go yet to prove to the Court, by her living circumstances between now and the trial, that she is able to keep a home for the children somewhat more appropriately than depicted in the photographs annexed to the father's affidavit and to ensure, if they are to be in her care on a night before a school night, that she is able as a parent to attend to the duties of providing a wholesome and proper dinner, a good night's sleep, a wholesome and proper breakfast, and a school lunch, and for all to be ready in the car to leave by about a quarter to 8.

29. By the time of the trial it may well be that the mother will have ample evidence to persuade the trial judge, whoever that is, and it may well be me, that she has proved these things with flying colours.  However, at this stage of the proceedings, in making interim orders in the children's best interests it seems to me that their best interests would be served by being returned to the father with changeover at 7 pm at McDonalds at Y, as proposed by the father.  Although there is the domestic violence background which I have mentioned, the return changeover venue, being a public place, hopefully would serve to dissuade the engagement of domestic violence between the parties on those occasions.

30. I will therefore make orders in terms of the father's proposals on the interim basis until trial.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate:    

Date:              5 July 2010