Granger & Collett (No.3)

[2007] FamCA 1119

FAMILY COURT OF AUSTRALIA

GRANGER & COLLETT (NO. 3) [2007] FamCA 1119

FAMILY LAW - CHILDREN – Best interests

Family Law Act 1975 (Cth)s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Granger

RESPONDENT: Ms Collett

FILE NUMBER: DNC 175 of 2007

DATE DELIVERED: 12 September 2007

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 12 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Roennfeldt

SOLICITOR FOR THE APPLICANT: Withnalls

COUNSEL FOR THE RESPONDENT: Mr Black

SOLICITOR FOR THE RESPONDENT: Cecil Black Family Lawyer

Orders

(1)I give leave to the mother to file the application in the case and supporting affidavit of the mother today and I extend the time for the mother to file the application for final consent orders for seven days and I make those orders.

(2)In relation to the order of 23 May 2007, I discharge the orders in paragraph 1.

(3)Instead, I order that the child, R born in February 2000, live with the father and mother on a week-about basis with handover to occur each Friday at the conclusion of school at school. 

(4)I order that the child, B born in May 1997, live with the father and spend time with the mother from the conclusion of school Friday until the commencement of school Monday each alternate weekend commencing Friday, 14 September 2007; that the time the child B spends with the mother be subject to the child's wishes to be negotiated between the child and the mother and the father; and the father is to use his best endeavours to encourage the child, B, to spend such time with the mother.

(5)I continue paragraph 3 of the order of Justice Strickland but it may be neater if I just make it afresh.  That each parent be at liberty to telephone each of the children when they are in the care of the other parent each Wednesday between 6.30 pm and 7.30 pm and each Sunday between 6.30 pm and 7.30 pm and the parent with whom the child is residing use the best endeavours to ensure that the children speak to the other parent.

(6)I continue paragraphs 4, 5, 6 and 7 of the orders of Justice Strickland of 23 May 2007. 

(7)I order that both parties file and serve an affidavit setting out their rosters for a period that the roster applies.  By that I mean if they have a six month roster, I want to know about it.  If they have a four month roster, I want to know about it for each of them and the arrangements for the children during the times when the children are not at school or in the actual care of that parent.

(8)I order that both parties are to file and serve an affidavit setting out their history of drug and alcohol rehabilitation they have undergone in the last five years. 

(9)I order the mother to file an affidavit of the person described as 'L' and her partner, M, providing particulars of their occupation, their rosters, their history and experience in relation to caring for children, their criminal record and drug and alcohol use record including any treatment or rehabilitation undertaken.  Those affidavits I would appropriately direct to be filed within 21 days from today.

(10)I will not order but I will direct the parties to make inquires as to the availability of suitable programmes in relation to parenting concerning the children and children's programmes such as or similar to the Anglicare ‘Kids are First’ programmes for parents and programmes for children.

(11)In relation to the orders sought concerning a handover to some person, well unless the handovers take place on a school day, then the handovers to take place at the parents - at the home of the parent who has the care of the child at the beginning of the period of time, and the other parent is to return the children to the other parents residence at 4.40 at the conclusion of the period of time.  The changeovers are to be carried out between the parents, unless that parent is available in which case the changeovers are to occur by a person nominated by the parent unable to attend provided that the name and address of that person provided to the other parent at least 24 hours before the handover takes place.

(12)I make the order in paragraph 12 of the amended application by the father in relation to communication between the parents by SMS.

(13)I make the order in paragraph 13 of the amended application by the father in relation to the injunction restraining motorcycle-related activities.

(14)I direct that the solicitors for the parties make inquires as to the availability of suitable family dispute resolution services and if they are available in Darwin, as I understand they are, that the parties attend upon such services with a view to resolving the differences they have concerning the children.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC175/2007

MR GRANGER

Applicant

And

MS COLLETT

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1.This is a matter which comes on in relation to the interim application filed by the father of the two children. 

2.The proceedings were commenced in March of 2007.  The orders which are sought to be varied are interim orders made by His Honour Justice Strickland on 23 May 2007.  The father’s amended application in a case filed on 3 August 2007 seeks to vary those orders.  

3.On 23 May 2007 His Honour Justice Strickland made orders when Ms Roennfeldt appeared on behalf of the father and Ms Dibden appeared on behalf of the mother. 

4.The first six orders were made by consent.  They included that the children, B and R, live with the father and mother on week and week about basis, with handover to occur each Friday after school; that the mother spends time with B pursuant to paragraph 1, to be subject to the child’s wishes, to be negotiated between the child and the mother and the father.  Paragraph 3 related to telephone time between the parents and the children.  Paragraph 4 was an injunction restraining the parties from being under the influence of illegal drugs or to be over the legal alcohol limit while the children are in their care.  Paragraph 5 was a non-denigration order.  Paragraph 6 related to the children’s birthdays.

5.Further orders were made by Justice Strickland including restraining the mother from engaging in escort work while the children were in her care.  Those orders were made on 23 May 2007. 

6.The Court has recently had the benefit of a report from Mr H who has interviewed the parties and the children.  His report which is now before the Court is dated 1 August 2007.  It is based upon interviews conducted in April, June and July of 2007, including interviews with each of the children.

7.It is significant to note the ages of the children in these proceedings.  B was born in May 1997 and is therefore only aged 10.  R was born in February 2000 and is therefore aged seven.

8.The parties both agree in their documents that their relationship has not been good and continues not to be a good relationship.  It seems clear from the report of Mr H (and to a lesser extent from the affidavit material of both of the parties) that the children have not had the benefit of proper responsible parenting from their parents and are suffering as a result.

9.The Family Law Act provides that the parents of children have shared parental responsibility.  That means that it is the parents who have the primary responsibility for the welfare of their children including their emotional and psychological welfare.  In this case the children have not had the benefit of the emotional and psychological support that would be gained by having two parents who were able to place the children’s welfare above their own individual interests.

10.Now that the matter comes before the Court, the Court is obliged to make a decision on matters in dispute between the parties based upon the paramount consideration being what is in the best interests of the children. 

11.Following the amendments in 2006 the Court is required to consider the matters set out in the Family Law Act dealing with the presumption of shared parental responsibility and the consequences that flow from a consideration of shared parental responsibility.  However, the legislation and the decision of Goode & Goode (2006) FLC 93-286 still emphasise that the Court’s obligation is to ensure that the Orders that the Court makes are based upon the principle that the paramount consideration is the best interests of the children. The Court must take into account those considerations to which the Court is directed in the legislation.

12.I take into account the decision of Goode & Goode (Supra) and, in particular, the emphasis that Goode & Goode (Supra) places upon the role that has to be undertaken carefully in particular when interim proceedings are to be decided.

13.The competing proposals of the parties in this case are that the father seeks to alter the shared care arrangement on a week about basis so that in future R spends alternate weekends from Friday after school until before school on Monday each alternate week, and on week two of the fortnight, two nights as agreed, but in default of agreement, from after school Monday until the start of school Wednesday.  That would be five nights a fortnight, with changeover occurring for two separate occasions of R spending time with the mother.  The father proposes that this also relate to the period of time the mother spends with B and seeks to continue the condition that the time the mother spends with B is subject to B’s wishes, as is the case in the existing order.

14.The mother proposes that the existing order of week-about continues.  The issues in dispute in relation to the matter before me are:

(1)the impact of the mother’s arrangements for the care of the child, in particular the child R, while she is attending to her employment in the mornings;  and

(2)the impact of the mother’s failure to obey the Court orders in returning R at the appropriate time, considering in particular the impact this has upon the time R has therefore to spend with her brother, B. 

15.Many of the facts alleged concerning the parties’ behaviour are not seriously in dispute.  It appears that it is admitted by the mother that in the past she had drug abuse problems, but claims now to be rehabilitated.  She claims now to have a good relationship with her new partner and to have made appropriate arrangements for the care of R or B if he were to come into her care.

16.The other factor which is agreed is that at the moment B and the mother do not have an appropriate relationship, let alone a good relationship.  It is clear from the affidavits of the father, the affidavit of the mother and, in particular, from the Family Report, that B and his mother are estranged.  The cause of this poor relationship between a young boy and his mother is in dispute.  The Court is not in a position to be able to determine on the contested information before it today what is the basis for that breakdown in relationship.  However, all parties seem to agree that steps should be taken to ensure that the relationship is improved.

17.The consent orders indicate that the parties are not seeking to alter their shared parental responsibility.

18.I am satisfied on the basis of the material before me at the moment that on the temporary basis at least, it is appropriate to continue the equal shared parental responsibilities of both parties for both of the children, notwithstanding the difficulties in the relationship between B and his mother. 

19.When the presumption of shared parental responsibility applies, I am required to consider whether the children should spend equal time with each of the parents unless it is contrary to the child’s best interests, taking into account those factors in s.60CC. It therefore is appropriate that I turn to the consideration of those provisions. Even if it were to be found that equal time is not in the child’s best interests, then it is appropriate for me to consider whether substantial and significant time is in the children’s best interests under s.60CC.

20.The primary considerations direct the Court to consider encouraging the relationship between each of the children and its parents.  The particular wording is that the primary considerations are “the benefit to the child of having a meaningful relationship with both of the child’s parents”.  In this case it is clear from the Family Report that there is a distinct benefit to R in particular of a meaningful relationship with both of her parents.  In relation to B, the Family Report indicates that steps should be taken to work towards B having the ability to enjoy a meaningful relationship with both of his parents, but that currently that has not been able to be achieved. 

21.The other primary consideration is the need to protect the child from the physical or psychological harm of being subjected to or exposed to abuse, neglect or family violence.  I have referred in comments from the Bench this morning to the risk of emotional and psychological abuse these children face because of the behaviour of their parents in focusing upon the poor relationship they each have with each other, rather than setting aside those difficulties and working towards a future for the children where they will have less risk of emotional and psychological abuse caused by the behaviour of their parents.

22.The additional considerations are set out in s.60CC (3). The principal ones in this case are the views expressed by the children, the nature of the relationship between the child and its parents and the willingness of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

23.I also take into account issues about the likely effect of any change in the circumstances and the practical difficulties of time being spent with each parent, taking into account factors concerning their rosters.

24.Another matter of significance is the capacity of each of the child’s parents and any other person to provide for the needs of the child including the emotional and intellectual needs.  In that regard I divert to say that there are people who have not filed affidavits, namely, M and someone called “L” who are providing care for R whilst she is placed in her mother’s home and, whilst M has given some information which forms part of the Family Report, the Court does not have affidavits about their capacity to provide for the needs of the children whilst the mother is at work.

25.The other significant factors in s.60CC relate to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents, and the question of family violence.

26.I take into account those factors.  In particular I take into account that the order of May 2007, whilst made by consent and providing for a shared equal time, was made in circumstances which preceded the mother’s subsequent behaviour in not complying with the Court orders.  She has now filed an affidavit which to a certain extent acknowledges her failure to comply with the order.  However, the father remains concerned about her capacity to comply with the orders.

27.The significant factor in my view is to make a decision today which not only follows the best interests of the child, R, in maintaining a relationship with both of her parents in a meaningful way, but also takes into account the likely effect of any change for R on her circumstances.  One of the significant factors of the change proposed by the father is the increase in the number of handovers to which R and possibly B, might be subject.  I say “possibly B”, because at this stage it seems highly unlikely from the evidence presented by both parties that B’s emotional welfare has been attended to the extent that he is able to benefit from an ongoing relationship with his mother.  The number of handovers for R would be a change which is likely to affect her emotional welfare and that is likely to have an ongoing effect also on the child, B. 

28.I am satisfied that the concerns of the father in relation to the obedience to Court orders can be overcome by the Court making it quite clear that the orders of the Court are to be obeyed and that a child of R’s age (namely age seven) is not to be given the responsibility that her parents have, and that it is her parents’ responsibilities to make decisions concerning her welfare.

29.The Act is quite clear that there are serious consequences for anyone who fails to obey a Court order without reasonable excuse.  Those consequences range from alterations to the existing Court orders, time being ordered to make up for time lost, to fines, community service and indeed, imprisonment.

30.In making these remarks, I obviously expect that Mr Black will pass these remarks on to his client.  I will also have them transcribed so that she is given a copy of them to read in order to understand the seriousness of the situation.

31.In weighing all of the factors in the Act, in particular the decision of Goode & Goode, I am not satisfied that it is in the best interests of R to vary the order as sought by the father.

32.In relation to the child B, it appears to me that there is little expectation at this stage that B will attend to spend time with his mother, and that the prospect of an increase in his relationship with his mother may be met by reducing the order which relates to B and at the same time providing that the order be subject to B’s wishes.

33.The orders that the father seeks include orders that the children spend half of the school holidays with each parent, specifying the first half in one part of the year, and the second half in the other part of the year.  In view of the inability of the parties to carry out their responsibilities as parents and discuss these matters appropriately with each other, those orders need to be much more specific as to times and I propose to hear from counsel about that.

34.The father also seeks an order that where the changeover does not take place at school, that it be on the basis that the children are delivered to the other parent’s residence at 4.30 pm and the changeovers are to be carried out between the parties, unless both parents agree to a third party conducting the changeovers.  The mother’s roster appears such that, as I understand it, a 4.30 pm handover whilst B is in her care is likely to be one that she can usually arrange. 

35.In relation to school holidays it is appropriate for there to be some flexibility for other adults to participate as long as they are suitable persons and that the other parent is informed about the name and address of the person who will be conducting the changeover for the parent.  I propose therefore to make an order in similar but different terms to the one sought by the father.

36.In relation to the question of communication, in view of the poor relationship between the parties I propose to order that the parties should communicate about parenting arrangements at first instance by SMS and then, if necessary, by telephone.  I assume that both parties would agree, when properly advised by counsel, that the children are not to be used as a method of communication between the parents.  It is specifically the parents’ duty to protect the children from the emotional abuse that is caused to the children by a poor relationship between their parents.

37.The father raises in his affidavit concern about a burn on the child’s leg caused by motorcycle related activity.  The mother’s affidavit says the burn did not occur whilst the child was moving on the motorcycle with her friend, but when she came to be taken off the motorcycle.  R is seven.  In view of the father’s concern, it is appropriate that an injunction be granted that until further order the mother is to ensure that when R is in her care she is not involved in any motorcycle-related activities.  Motorcycles are different from BMX bicycles ridden by children.

38.The matter is now at a stage where it should probably be ready to be listed for hearing in the near future in the Family Court (at least to have a first day hearing in relation to the children’s matters in the next Darwin sittings in December 2007).

39.I propose to make certain procedural orders in relation to filing of further material and direct that the parties also make enquiries in relation to the Kids-Are-First Programme and its availability in Darwin for both the parties and the children. If possible, if there is a Kids-Are-First Children’s Programme being run in Darwin the children should attend.  The Anglicare service provided, Kids Are First, emphasises for the parents the best interests of the children and gives the children an opportunity to work through some issues that have been forced upon them by the behaviour of their parents.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate 

Date:  20 September 2007