Grindle and Grindle

[2007] FamCA 711

FAMILY COURT OF AUSTRALIA

GRINDLE & GRINDLE [2007] FamCA 711

FAMILY LAW - CHILDREN - With whom a child spends time - Mental health issues - Interim orders

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286, (2007) 36 Fam LR 422

APPLICANT: MR GRINDLE

RESPONDENT: MRS GRINDLE

FILE NUMBER: MLC 6835 of 2007

DATE DELIVERED: 6 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: White Cleland Pty Ltd

Orders

1. Until further order the husband and wife remain responsible for the major long-term decisions relating to the children F, born in May 2000, and T, born in May 2002.

2. The further hearing of all outstanding applications be adjourned to the Judicial Duty List on a date to be fixed, at 10 am.

3. Should the parties resolve the outstanding interim financial issues, they have leave to contact the Listings Registrar to seek to have any interim children's issues determined on the return date in the Senior Registrar's list of cases rather than the Judicial Duty List.

4. That until further order the children live with the wife as follows:

   (a)during each alternate weekend from 3 pm on Friday to 9 am on the following Monday, commencing 6 July 2007;

   (b)each alternate Thursday from 3 pm on the Thursday until 9 am on the following Friday morning, commencing 12 July 2007;

   (c)each alternate Tuesday from 3 pm on the Tuesday until 9 am on the following Wednesday morning, commencing on 17 July 2007.

5. That until further order the children will live with the husband at all other times.

6. For the purposes of changeovers in paragraph (4) and (5), unless otherwise agreed the parties collect and deliver the children at the school of F and the kindergarten of T if the children are attending school or kindergarten, and otherwise the wife or one or other of her parents collect the children from the husband at the commencement of the periods in paragraph (4), and the husband collect the children from the wife at the conclusion of the wife's periods of residence.

7. Until further order, the provisions of paragraph (4) apply on condition that the wife continues to reside with her parents.  Should she cease to do so then paragraph (4) shall be forthwith suspended.

8. The wife undergo a psychiatric examination by a psychiatrist to be agreed between the parties, and failing agreement as may be nominated by the Independent Children's Lawyer, such psychiatrist to be a single expert within the meaning of chapter 15 of the Family Law Rules. 

9. That the costs of the psychiatrist be borne initially by the husband, and the issue of the ultimate payment be a matter for determination by the trial judge.

10. The psychiatrist be provided with all affidavits filed by each party and a copy of these orders, and the responsibility for the organisation of the appointment, once agreed, and the delivery of the affidavit documentation and order be the responsibility of the solicitor for the husband.

11. That each party attend upon and at the direction of the psychiatrist for the purposes of the preparation of the report referred to.

12. That the psychiatrist be requested to report upon the wife's mental health generally, her capacity for self harm, the appropriateness of her medication and her capacity to care for the children, having regard to any psychiatric diagnosis and any other issues that the psychiatrist feels may of assistance to the court in a parenting case.

13. I make the usual orders for the appointment of an Independent Children's Lawyer.

14. That the parties attend a conciliation conference on a date to be fixed.

15. I certify for the attendance of counsel.

16. I reserve costs.

17. I order that my reasons of this day be transcribed and made available to the parties as soon as possible.

18. There are three notations to the orders:

    (a)It is not ordered that the parties have agreed that on an interim basis the wife will pay the mortgage in respect of the home and the husband will pay the mortgage in respect of the business.

    (b)There are still outstanding financial issues, including the wife's request to sell the former matrimonial home and her desire to continue to do the book work for the parties' market garden and produce business.

    (c)That the parties are encouraged, in consultation with the Independent Children's Lawyer, to appoint a forensic psychologist for the purposes of the preparation of a family report to adduce evidence in relation to all issues affecting the children, but specifically:

    (i)the capacity of the children to cope with a shared care arrangement;

    (ii)the various issues referred to in the reasons for judgment delivered orally this day.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC  6835  of 2007

MR GRINDLE

Applicant

And

MRS GRINDLE

Respondent

REASONS FOR JUDGMENT

1. I heard this matter in the duty list on Thursday, 5 July 2007.  I propose to make different orders in this case to those sought, proposed and urged by each party.  I have done so in a duty list environment with limited information dealing with a separation between the parties that is apparently both fresh and raw. 

2. I do have some common background upon which I intend to rely.  Unashamedly, I am taking a cautious approach to cover a very short period of time as these two children deserve to settle down quickly.  After some investigation, and with the assistance of an Independent Children's Lawyer some of the concerning issues can be examined and also laid bare at the next interim hearing. 

3. In addition, I have not had time to determine some rather modest financial issues to which I will also turn and if the parties are not agreed on them by the return date, sadly some judicial intervention may be needed there as well.

4. This is essentially a case about two boys, F, aged seven, and T, aged five.  Their lives have been disrupted not only by the separation of their parents in dramatic circumstances but also by either watching or at least being aware that their mother has suffered from depression.  Although the depression is being treated by medication and medical practitioner assistance, the wife's psychiatrist has described the illness as a major depressive illness. 

5. Although no evidence was led on that description, my understanding from hearing evidence previously from psychiatrists is that any person who is hospitalised as a result of a depressive illness or episode has a serious depressive illness notwithstanding it may be controlled or treated.  The psychiatrist's report in this case is in evidence.  Although the description I have mentioned sounds dramatic, I am more concerned and am acting upon, the other behavioural aspects that the psychiatrist has set out. 

6. The background of the parties and the history of these proceedings insofar as they are relevant to my determination are as follows.  The husband and wife were married on 11 August 1990.  The wife is 37 years of age.  She was born in October 1969.  She works as a health professional manager at the Australian Public Service.  The husband is 41 years of age.  He works at the party's home, which is a market garden business, selling produce.  In the early years of the lives of these two children, the wife was at home caring for them whilst the husband was working full-time from Monday to Friday as a tradesman.

7. The husband and wife established the market garden and produce business which is called P.  The wife in fact is the qualified horticulturalist and has always done the invoicing, paperwork and books of the business but to date it has not made a profit.  The wife returned to full-time work in her current profession in October 2005.  In February or March of 2006, she went to see her general practitioner, having recognised the symptoms of depression, and the general practitioner provided her with a prescription for antidepressant medication. 

8. Here it is an appropriate time to set out what the wife's psychiatrist says about the year 2006:

   I have being seeing [the wife] since 13 November 2006 when she was referred to me by her general practitioner…for depression.  The information in the referral from [the doctor] was that [the wife] was struggling with depression through 2006 which was aggravated by her marital problems and was treated with Lavan (antidepressant) which only helped her mood partially.  She had also been to a psychologist, [Ms R] between February and March 2006 for 4 sessions for individual counselling and it was suggested there that she consider couples counselling next.  She did attend marriage counselling for 6 months after that with a marriage counsellor in [S].

9. The psychiatrist went on to say:

   …She had some self-harming behaviour at the end of last year but this did not recur this year.  She has had suicidal thoughts when depressed but these had also resolved.

10. The husband says of this same period that in about June 2006, he noticed cuts on both the wife's arms and left hip and that they increased over a period of several weeks.  When he questioned her, she said that she was cutting herself to take the pain away.  He went on to say that in around September 2006, the wife told him that she had commenced counselling with a psychiatrist and that the psychiatrist had increased her dosage of medication in the case of self-harm.

11. The wife says of this period that she had been never able to comfortably discuss the depression with her husband because he had no concept of what she was experiencing and did not want her to explain it.  She said she tried to tell the husband many times that the night shifts she was working were difficult but he would not listen.  In her view his only concern was that she should continue to work to bring in enough money so that he did not have to work outside the market garden.  She said that in November 2006, her depression worsened and she consulted her doctor again after cutting her arms several times.  She was then referred to her psychiatrist who changed her medication.  Unequivocally she says:

    I did not try to kill myself as suggested by the husband.

12. That last sentence may certainly be an accurate description but it tends to ignore the statements of the psychiatrist that there were suicidal thoughts during this depressed period. 

13. Matters seemed to calm then and life went on as normal until May 2007 when the husband became aware of the wife's affair, apparently with a neighbour.  Although the issue was canvassed at some length in the affidavit material and in submissions, my only concern was that the husband’s finding out about the affair precipitated the immediate physical separation.  Each party points the finger at the other here.  The wife says the husband was aggressive, abusive, intimidating and violent, putting her in a position where she felt she had to leave.  The husband's version was that the wife agreed that she was having an affair, left the home and went to her parents, leaving the children.  I cannot and should not make any finding about what occurred that day because the views of each party are contentious.

14. The wife accuses the husband of raising the issue unnecessarily and thus not being child-focused.  She accuses him of simply being angry.  The husband accuses the wife of ignoring the children's needs and involvement by the affair and leaving.  Neither finger-pointing issue helps me here where I am endeavouring to decide what proposal best advances the future welfare of these two boys in the short term. 

15. To that point, chronologically, one might have some concerns about the 2006 year but the medical issues appeared under control.  It transpires that immediately after the wife left the home, she was admitted as a voluntary patient in a private psychiatric hospital for 16 days.  It also seems she came home on weekends during that time to her parent's home and spent time with the children.  The wife also saw the children about three times whilst in the hospital with the husband bringing them to her.  The parties could not even agree on how that happened.  The wife seems to say the husband did it at her request and I am to infer that he did it reluctantly or begrudgingly.  The husband says he brought them in and gave her private time with the children. 

16. No-one has set out how the children coped or reacted to all of this.  Bearing in mind the assertion of the wife of the tumultuous separation, her departure and her subsequent hospitalisation under medication, the best evidence I have here is as follows.  I quote from the husband:

    The children have spent time with their mother at her parent's home (which is nearby).  Both our home, and the wife's parent's home is close to their school and kindergarten, and they feel more secure about their mother moving out of the home now they have visited her.  The children have a close relationship with the wife's parents and are now happy to stay with them and the wife during the weekend.  They were very happy to return home to me on Monday morning (following time spent with their mother).

17. The wife says:

    I am greatly concerned by the husband's recent behaviour.  He is very angry and bitter.  I am concerned that his behaviour will be having a negative impact on our children.  Our children are confused and upset by our separation and they need a lot of reassurance, time and love from both their parents.  I want to spend as much time with my sons as possible so that I can reassure them, comfort them and care for them. 

18. The wife was hospitalised for 16 days for an apparent depressive episode described by the psychiatrist thus:

    On 29 May 2007, she attended a regular follow up visit and was in a significantly distressed state having been asked to leave her home a few days prior and her husband having found out about the affair that she had been having.  She was overwhelmed by her feelings and she was feeling unsafe and felt the need to be in a supported environment.

19. The psychiatrist went on to say, under the heading of Diagnosis:

    …For her presentation in May 07, my opinion is that she was in a Situational Crisis following the response from her husband who found out that she was having an affair and having to leave her home and being separated from her children.

20. The wife has now been out of hospital since 12 June 2007 and says there are no longer any concerns.  Her counsel points to the fact that her employer is aware of her illness and more importantly, she holds a responsible position as a health professional.  She now lives in the upstairs section of a two-storey home owned by her parents.  She is working 20 hours per week and is able to tailor her hours to her needs. 

21. The psychiatrist makes a number of observations upon which I have pondered:

    …On discharge from hospital she was much more settled in her mental state and positive with her future plans of rebuilding her life and balancing this with her children's needs and work.  She was discharged to her parent's home to the support of family and friends… 

    The psychiatrist then says:

    [The wife] will continue to attend ongoing psychiatric appointments here and also has a supportive general practitioner whom she sees.

    Then:

    …She is currently still adjusting to living with her parents and being away from her children and having to deal with the stress of court matters now. 

    Finally, the psychiatrist says:

    …I have no reason to believe from the interactions that I have seen that there would be any concerns with the children's safety should [they be returned to the wife's] care.

22. There is the suggestion in those points that notwithstanding the discharge from hospital, the wife is making adjustments in her life.  It is important that she does so because even on the husband's view she is a significant person in the lives of these children.  I must, however, contemplate how the children are or might be adjusting to this rather tumultuous time in their lives. 

23. I am confident in accepting that the husband has been primarily around the children for the last 18 months.  I would not on this material use the expression "primary carer" and even if that were the case, it is a subjective term that means different things to different people in different households.  There are clearly daily chores that fall to one parent or another and in this case, I could comfortably say that on the material, the husband has done most of them for the last 18 months. 

24. I also have the evidence that the husband worked very hard on the family business, the wife worked set hours and both seem to have been involved in the most important parenting functions, namely nurturing, developing and fostering their children's needs and being around them when the children needed the security blanket of parenthood.  The 18-month period therefore does little to assist the husband here any more than it does the wife.  Ironically both parents say the children need the other parent, but the real dispute is about one of time. 

25. Sharing decision-making for these parents does not seem to be a really significant issue.  I am sure that they are dedicated parents.  The wife obviously sees the strengths of parenting capacity in the husband because she suggests there should be a week-about arrangement.  The husband says they cared equally until October 2005, and then he says:

    Whilst the wife has a close and loving relationship with the children and has the capacity (subject to her psychological condition) to spend time with them, I believe it is in the children's best interests that they continue to live with me. 

26. From a physical point of view each party now says they have the time and resources to undertake the tasks they are proffering to fulfil.  The wife says that she occupies the upstairs section of her parent's home, which is quite separate.  It is a large area with its own bathroom and the children have a separate room where they can sleep downstairs but at this stage, she says, they prefer to sleep with her at the upstairs level.  She says her mother is 58 years of age and works part-time as an administrator in a health care facility four days per week and that the mother is away between the hours of 8 am to 8.15 am and 4.45 pm in the evening.  She says her father is 63 years of age and is a semi-retired tradesman who works on the occasional Tuesday.  He has only worked three days since April of this year.

27. The husband says that he has been doing all of the things a parent would do and he sets them out in paragraph 21 of his affidavit, which I will not repeat.  Each of the maternal grandparents has filed an affidavit setting out their involvement in the lives of their grandchildren.  Interestingly, they make no criticism of their son-in-law as a parent at all.  Of their daughter, they are obviously supportive. 

28. My task is to work out what to do with these children on an interim basis in respect of two households relatively close together where I clearly understand the children are treasured, and particularly with the presence of the grandparents, I have little doubt they will be safe.  What I do not have is any idea how the children will cope with the transition to two households.  As I have pointed out, each parent has skirted around the issue of the response or reaction of the children but each has made obvious that there is mistrust and dislike of the other.

29. Turning to the law, I have to decide this matter, notwithstanding that it is an interim determination, on the basis of the matters set out in Part VII of the Family Law Act 1975 (Cth). The Full Court in Goode and Goode (2006) FLC 93-286, (2007) 36 Fam LR 422 acknowledged that the procedure for making interim parenting orders will necessarily be an abridged process where the scope of the inquiry is significantly curtailed. The Full Court said that courts cannot make findings of fact in some circumstances and if that is the case, they should not be drawn into issues of fact or merit relating to the merits of the substantive case. The Full Court said that where a court looks at the less contentious matters such as agreed facts and issues not in dispute, the court can have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the respective proposals by the parties for the future of their children.

1. The Full Court examined the traditional case of Cowling (1998) FLC 92-801, 22 Fam LR 776 and said:

   …it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.

2. Ultimately, what the Full Court said is that the statute has to be followed, and it is for that reason I propose to follow the path of Part VII of the Family Law Act 1975 (Cth) (“the Act”). In s 61DA(3) the following is found:

   When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   "That order" means the parenting order. 

3. I do not believe it would be appropriate here to apply the presumption.  I have heard there are contested issues of family violence and concerns expressed about the wife's health stability, both of which I can make no finding about.  Accordingly I propose to deal with the matter on the basis of the factors set out in s 60CC. 

4. Dealing with those in order, it is clear that each party has a meaningful relationship with these children already.  The children will benefit from being involved in the ongoing but very different lives of their parents in the future.  It is difficult in an interim determination to assess what the benefits will be without a more comprehensive assessment. 

5. In respect of the concern about the subjecting of children to abuse, neglect or family violence I have confidently said each parent will protect the children from physical harm.  I am uncertain about what, if any, psychological harm they have suffered or what they will be exposed to if the allegations of the wife are not only true but ongoing.  I am comforted to hear that my orders will involve in the short term the role that the maternal grandparents have professed they desire to play. 

6. In respect of the views expressed by the children, in this interim hearing I do not know what the children's views are, but having regard to their respective ages I doubt much weight could be attached to them anyway.

7. In respect of the nature of the relationship of the children with their parents and with persons such as their grandparents, each parent asserts that the other has a close and loving relationship with the children as well as the grandparents.  The grandparents clearly have had a strong involvement in the lives of these children.  This particular factor is not large in my determination. 

8. The willingness and the ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent is somewhat perplexing.  The willingness of each parent is clouded in this interim hearing by the fact that the separation is recent and that it occurred in the unfortunate circumstances and aftermath that it did.  I suspect this particular factor will be much more relevant when the wife's health circumstances are objectively tested and examined and there is some evidence about how any form of shared parenting would be promoted by each parent and coped with by each child.

9. In respect of the effect of any changes in the children's circumstances, I do not have any evidence about how the children are currently coping being away from their mother.  Equally, I have no evidence about how the children would cope being away from the current circumstances that have prevailed both up to separation and, more importantly, for the last five weeks.  That, to some degree, also needs a court to contemplate how the children would cope with a significantly different parental sharing arrangement than what the children have ever lived with.  Accordingly, I am not prepared to say a shared week-about arrangement is yet, and I stress yet, appropriate.  Nor am I comfortable in saying that the husband's proposal in terms of time away from the mother will satisfy the needs of these children. 

10. In respect of the difficulties associated with these children spending time with each parent there are no issues because even with the orders I propose the parties live close to one another and the wife has the physical and emotional support of her parents. 

11. In respect of the capacity of each of the parents to provide for the needs of the children I have no doubt that each parent can and will provide for the physical needs but it is too early to judge whether they will provide, and therefore have the capacity to provide, for the emotional needs of these children.  This harkens back to what I was referring to a moment ago in respect of the provision of s 60CC(3) subparagraphs (c) and (d). 

12. In respect of the maturity, lifestyle, and background of these children I am able to glean that it has always been in the one household except when visiting their grandparents.  How they would cope with a change of lifestyle to a household with three generations on a permanent basis in a week-about regime is also as yet unknown but it needs to be investigated for any further hearing.  There are no cultural issues involved for these children.

13. In respect of the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents it is also difficult for me to make any findings.  Each parent seems to have acted responsibly notwithstanding some of the contentious issues in the evidence.  The wife left the children behind but she was, on the psychiatrist's evidence, not coping with her own problems, which she asserts related to the marriage.  She seems to have continued her involvement with the children in a significant way after the separation.  Although I have indicated that the wife seems to say that the husband has not been as positive about her role as a parent as he could be I would not be able to make that finding on this evidence.  Ensuing weeks will no doubt test the parents and they will be better able to point to their cooperative parenting or otherwise over that time. 

14. As I have said in respect of family violence I am unable to make any finding about that but I am satisfied that neither parent would be involved in family violence involving the children.  To my knowledge there has been no clear authoritative statement subject to the 1 July 2006 amendment which has canvassed the social scientists' views about the current research into what type of shared care arrangement is best for children.  I am very conscious of what the Full Court said in Goode's case about the intention of parliament but the legislature has also underpinned the amendments by requiring that any decisions still be in the best interests of children. 

15. Whilst the orders that I am about to make appear on their face perhaps to be confusing and disjointed.  I say I am endeavouring to limit the time for the children being away from each parent but to give the husband a slightly greater time for stability purposes.  In summary, therefore, I am putting in place a holding position during which time the issues about which I have expressed concern can be examined and, if necessary, tested.  To have another interim hearing soon will be expensive for the parties, potentially test the resolve of them as parents, possibly affect the children if further change is made, and impose a burden on the court's resources.  However, because the separation is so fresh the children are entitled to have a more comprehensive examination than what I have been able to undertake with limited material. 

16. The difference between the parties' positions therefore is twofold.  First, I do not believe such a change as a week-about arrangement could be said to be appropriate yet.  Secondly, I do not believe that separating the children from their mother for the period suggested by the husband can be said to be in their best interests either.  A balance between the two positions may solve the dilemma.  In my view, on what I have read and heard the orders I propose to make are in the best interests of the children.

I certify that the preceding Forty Five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GRINDLE & GRINDLE