Halden & Halden - [2007] FMCAfam 1182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALDEN & HALDEN

[2007] FMCAfam 1182

FAMILY LAW – Children – interim parenting orders.

Family Law Act1975

Applicant:

MR HALDEN

Respondent:

MS HALDEN

File number:

BRC 13247 of 2007

Judgment of:

Purdon-Sully FM

Hearing date:

17 December 2007

Date of last submission:

17 December 2007

Delivered at:

Brisbane

Delivered on:

18 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr T Matthews

Solicitors for the Applicant:

Bourke & Associates

Solicitors for the Respondent:

SBA Family Lawyers

BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER:

That neither party discuss the current dispute between the parties with the Children or show the Children any documents connected with the dispute.
That the Mother and Father have equal shared parenting responsibilities in consultation each other for making decisions about any long term issues for the Children including but not limited to:
(a)Any medical or health matter concerning the Children.
(b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the Children.
(c)Matters relating to the education of the Children including but not limited to the choice of school or curriculum and provision to the other parent of all school reports, photographs and communication from the Children’s school other than with respect to other routine or administrative matters.
(d)Disciplinary matters other than of a trivial nature.
(e)Matters concerning the social development and sporting activities of the Children.
(f)Matters concerning the religion or faith of the Children.
(g)Any change of place of residence or telephone number of either parent.
(h)Any intended change in the surname by which the Children are commonly known from that recorded on the Children’s birth certificates; and
(i)Any matter regarding the Children in respect of which a parent should be informed of and consulted with having regard
That each parent have the daily parental responsibility for the Children for such periods that the Children live with or spend time with him or her respectively.
That notwithstanding any other order for the public holidays of Christmas 2007 the Children shall live with the Father from 9.00am on 25 December 2007 until 1.00pm and with the Mother from 1.00pm until 5.00pm on 25 December 2007.
That on Father’s Day should the Children not be otherwise living with the Father, then the Children are to spend time with the Father from 9.00am to 5.00pm on that day. On Mother’s Day should the Children not otherwise be living with the Mother, then the Children are to spend time with the Mother from 9.00am to 5.00pm on that day.
That if the Children are in the Mother’s care on their birthdays, and such days are a school day, then the Children are to spend time with the Father from after school until 5.30pm and if the birthdays occur on a weekend, then the Children are to spend time with the Father for one half of each Child’s birthday.
That if the Children are in the Father’s care on their birthdays, and such days are a school day, then the Children are to spend time with the Mother from after school until 5.30pm and if the birthdays occur on a weekend, then the Children are to spend time with the Mother for one half of each Child’s birthday.
That the Children are to spend time with the Father on his birthday from after school to 5.30pm if the birthday falls on a school day or one half day should the Father’s birthday fall on a weekend when the Children are in the Mother’s care.
That the Children are to spend time with the Mother on her birthday from after school to 5.30pm if the birthday falls on a school day or one half day should the Mother’s birthday fall on a weekend when the Children are in their Father’s care.
That all changeovers that occur during school hours, shall take place at the Children’s school. For this purpose, the parent who is not receiving the Children into their care at any changeover shall not be present at the school in the vicinity of such changeover. In the event that the Children’s changeovers occur outside school hours, that all changeovers occur at the home of the Paternal Great Grandmother, Mrs P, and such changeovers be structured as follows:
(a)The Mother to deliver the Children to Mrs P at 8.50am each Saturday and not remain at, near or in the vicinity of the residence.
(b)The Father to collect the Children at 9.00am from the residence of Mrs P.
(c)The Father deliver the Children back to Mrs P at 4.50pm each Sunday and not remain at, near or in the vicinity of the residence.
(d)The Mother to collect the Children at 5.00pm each Sunday from the residence.
That each parent keep the other advised of their residential address and contact details both in relation to where the Children shall live or spend time and provide notification of any change to those contact details within forty eight (48) hours of such change.
That each party participate in a Parenting Orders programme as offered by Relationships Australia and commence such program at the earliest opportunity.
That the Mother and the Father attend counselling and that such counselling to include the following:
(a)Any unresolved relationship issues between the parties;
(b)How they can promote a positive co parenting relationship;
(c)How to promote the Children’s time with both parents;
(d)The damaging affects on Children of ongoing conflict between parents; and
(e)The damaging affects of a failure to develop a meaningful relationship with both parents.
That the parties share the cost of such counselling as ordered in order 13 hereof.
That if during the currency of these orders, the parties and the Independent Children’s Lawyer agree in writing to vary these orders, the parties have leave to relist the proceedings in chambers urgently for consent orders to be made.

THE COURT ORDERS UNTIL FURTHER ORDER:

That the Mother not denigrate the Father or members of the Father’s family to the Children, nor discuss with the Children her fears and anxieties concerning the time they spend with their Father or their relationship with him, and use her best endeavours to ensure that no other person denigrates the Father or members of the Father’s family to the Children or in the presence of the Children.
That for the Christmas school holiday period for December 2007/January 2008 the Children live with the Mother and spend time with the Father each weekend from 9.00am Saturday to 5.00pm Sunday and from 9.00am Thursday 20 December 2007 until 5.00pm Friday 21 December 2007 and from 9.00am Saturday 29 December 2007 to 5.00pm Sunday 30 December 2007.
That during all school holidays thereafter, the Children shall live with the Father for half of each of the gazetted Queensland school holidays, being the first half in odd numbered years and the second half in even numbered years.
That from the commencement of the school term in 2008, the Children live with the Father from after school on Friday 1 February 2008 until the commencement of school on Monday 4 February 2008 and each alternate weekend thereafter; and from after school Thursday

7 February 2008 to the commencement of school Friday 8 February 2008 and each alternate week thereafter.
That the Children be at liberty to telephone or email either parent at all reasonable times as they may request and that they be afforded privacy during such calls.
That pursuant to section 121 of the Family Law Act 1975, the parties be at liberty to publish the family report prepared by Mr Moriarty dated 16 December 2007 to any counselling that the parties engaged pursuant to order 13 hereof.
That each party keep the other parent informed as reasonably practicable of any medical condition, significant health issue, or illness suffered by the Children and otherwise keep the other parent informed of any treating medical practitioners attended upon by the Children and that this order authorise any treating medical practitioner to release the Children’s medical information to the other parent.
That each parent authorise the Children’s school to provide to the other parent such information about the Children including report cards, school newsletters and alike at the expense of the parent requesting the information.
That each parent be at liberty to attend various functions at the Children’s school/s and including any extra curricular activities in which they might be engaged.

THE COURT ORDERS:

That the Children E born in October 1996, S born in December 1997, H born in June 1999 and B born in October 2000 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.
That the parties and the Independent Children’s Lawyer have liberty to apply.
Costs reserved.
Certify for Counsel.
That this matter be adjourned for further mention to 9.30am on 27 March 2008 in the Federal Magistrates Court of Australia at Brisbane.

IT IS NOTED:

That a copy of the interim reasons for decision be provided to the Independent Children’s Lawyer.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 13247 of 2007

MR HALDEN

Applicant

And

MS HALDEN

Respondent

REASONS FOR JUDGMENT

The parents of E, S, H and B, cannot agree on their interim parenting arrangements.
I have been handed a draft minute of orders outlining proposed parenting arrangements for the children and I have been asked to make a decision on those parts of the draft orders that remain in dispute. The five areas that are in dispute are:
(1)whether for the 2007 Christmas school holiday period the children should spend time with the father each weekend from 9 am Saturday to 5 pm Sunday as proposed by the father, or whether they should spend time with him as proposed by the mother from 9 am Thursday, 20 December to 5 pm Friday, 21 December and then from 9 am Saturday 29 December to 5 pm Sunday 30 December and each alternate weekend thereafter;
(2)whether, from the commencement of school 2008, the children spend time with their father from after school Wednesday to before school on Friday in the first week and after school Friday to the commencement of school on Monday in the alternate week as proposed by the father, or as proposed by the mother from Friday to Sunday each alternate week with the changeover to be at the paternal great-grandmother's home as proposed by the mother;
(3)whether the children should spend one-half of the school holidays with the father as proposed by the father, or as reviewed by Mr Moriarty after school starts;
(4)whether the children should have reasonable telephone and email communication with each parent as proposed by the mother, or whether as proposed by the father there should be some restraint on the mother from communicating with the children during the time they spend with their father;
(5)whether I should make a non-denigration order that applies to not only the mother but to both parties. The father seeks that such an order only relate to the mother, on his case, there having been no allegation by the mother that he has denigrated the mother or her family to the children. The mother seeks a mutual order and refers me to paragraph 86(e), (f) and (t) of her affidavit.
In considering this matter, I have had regard to the material that I have been asked to read, namely the father's application and supporting affidavits and the mother's response and supporting affidavit. I have also been provided with written submissions by the applicant father's counsel. I have heard oral submissions from both parties' legal representatives. I have also read the report by Mr Moriarty, who interviewed the parties and the children on 11 October and 12 December 2007.
This, of course, is an interim hearing. There are significant issues in dispute. I am not in a position to make findings of fact on all relevant issues. That will happen at trial if the parties cannot resolve the matter in the interim. At that time their evidence and any evidence from witnesses in their case can be tested.
I propose, however, to deliver fairly detailed reasons for my decision on the interim applications before me, as it appears to me that the parties are at a crossroads. I wish to ensure that they are provided with every opportunity to take what personal stock needs to be taken and to be provided with an opportunity to reach a consensual agreement, if possible, before this matter proceeds further down the adversarial track. It is usually preferable for parents to reach their agreements about their family without that being imposed upon them. Court proceedings are very expensive and that needs to be a consideration. I am sure in that regard I am not telling the parents anything that their lawyers have not already told them.
In terms of the issues before me, in short compass, the mother says that she is more than happy to promote the children's time with the father, even equal time, however the children are frightened of their father because of the way he has treated them in the past. She acknowledges, however, that it is important for the children to build a relationship with their father where they are not fearful. The father says that the mother is controlling of his time with the children and that she has sought, and continues to seek, to undermine his relationship with the children and this predated the parties' separation.
There are a range of allegations and counter allegations in the parties' affidavit material and in their oral interviews with Mr Moriarty. What common ground one is able to glean from the material is as follows: the parties have a dysfunctional relationship which includes poor communication and distrust; the parties have recently separated; the only primary dispute resolution they have engaged in is one session with Ms Britton; there has been no ongoing therapeutic intervention; both parents appear to agree that it is important that the children have a relationship with both parents; the father has had limited time with the children since separation, he has not seen the children since 28 October 2007; he does not know where they live because the mother has refused to tell him because of her fears, although I note that she has consented to an order in terms of the agreed orders that have been placed before me namely Order 21 as follows:
“that each parent keep the other advised of their residential address and contact details”
It appears that the children are strongly aligned with their mother. During the children's visits with their father they have at times been very upset at spending time with him.
In their interviews with Mr Moriarty the three eldest children reported that they were scared of their father that he may hurt them. When asked to flesh out the basis of their fears they reported, variously, that he might punch or kick them although none of them reported that their father had ever physically disciplined them; that their father had “a glare”, or he would put a particular face on, which their mother did not like. They reported “lots of mean things but it was hard to remember”, but the meanest thing, for E, was that he swore at the children a lot; and another child used as an example of him being "mean" that he spent only five minutes at E's birthday. I do not propose to canvass the circumstances surrounding E's birthday. It is set out in the material. A further complaint was that the father would threaten them with his fists and yell and be cranky. He spoke rudely to them. He threatened to take them away from their mother, for example, he tried to take them out (without their mother) to the movies.
All of the children, save for B who was not asked, revealed that their mother missed them when they were gone; worried about them when they were gone; cried before they went and when they returned from spending time with their father as she did not want them go; would say that she was sad; that she told them she thought their father would hurt them or that she knew he was going to hurt them; and that their mother had told them that a lot before the marriage breakdown.
Mr Moriarty's interviews did not identify any unacceptable risks associated with the father spending time with the children. Neither the mother nor the children were able to really clarify to Mr Moriarty the basis of the children's fears. Whilst the mother alleges in her material serious issues of physical mistreatment of the children including violence by the father towards her and the children, and with S, a threat to commit suicide if he had to see his father, neither she nor the children recounted any of that to Mr Moriarty. Further, no notice of abuse or family violence has been filed by the mother alleging that the children had been abused or were at risk of being abused by the father or that there had been or was a risk of family violence.
Even on an interim hearing it is difficult, after having considered all of the material not to conclude that the children appear to a large degree to have taken on the fears of their mother. The mother's fears, on her own account, appear to be based on four incidents, namely, during an argument between the parties and in the context of the marital breakdown, the father was alleged to have said to her:
"Don't think you are getting the house and the car"
and that this progressed to him saying he would:
"take the children away and you won't even know where they were".
And secondly, he had talked of suicide, the mother then extrapolating from that that he may harm the children as well. And although she had told Mr Moriarty that he had not made any specific threats in that regard - although I note that she deposes in her affidavit to the fact that the husband had allegedly threatened to hang himself - this concerned her. Mr Moriarty said that the way she managed this was to ensure that for the 12 months prior to separation she would not allow the father to take the children anywhere alone and that the children were aware of this. It is also clear from the mother's material that this is what she in fact did.
The mother also refers to an incident with a knife and a hammer. The father provides an explanation for both. On the mother's case it was a threat. On the father's case a misunderstanding on the part of the mother as to his intentions. The mother says that the former incident occurred in the presence of all of the children, although E told

Mr Moriarty that she was not there but had heard this from two of the other children.
Even if I accepted that these incidents occurred as recounted by the mother, notwithstanding the mother's stated fears which she held well before separation, she still remained in the relationship well after she had first engaged lawyers to act for her despite the father's alleged domestic violence towards her and her fears about the children's safety. Further, she did not take out a protection order for herself and/or the children either before or after separation. She took not one but two family holidays in Easter 2007 culminating in her brother ringing her, on her account, because he was so worried about her that he was enquiring if she and the children were still alive. There was another family holiday shortly before separation when she invited the father to come along.
Of particular concern for me, however, is the fact that the mother appears to have encouraged the children's belief that their father would hurt them by telling them that. On one visit between the father and the children at McDonalds, following separation, the mother removed the children's shoes so that the children were at a restaurant without shoes. Whilst the mother provides an explanation for doing this, it is not a plausible explanation when combined with the mother's own evidence that she had counselled the children about what to do if their father attempted to take them away from McDonalds on that occasion.

Further it appears that the mother would cry before and after the children returned from spending time with their father, making it clear to the children that she does not want them to see their father, thus reinforcing in their eyes her distress when they see their father. Given the children's statements to Mr Moriarty about their mother telling them their father may hurt them, she must have known that her behaviour before and after their visits with their father would cause them distress and reinforce in their minds her concerns about their safety and their perception that those concerns were real.
It is clear on both parents' accounts that at times the children have been distressed when spending time with their father. On the mother's account H vomited after the incident on 28 October 2007, yet the mother appears oblivious to her contribution to the children's distress and this state of affairs. On the mother's own case she says that she told the children the night before they were to see their father on 10 November how much she loves them and that there was nothing to be afraid of. When viewed against three of the children's accounts to Mr Moriarty that their mother was telling them that she was worried their father would harm them, she was sending them, at best, mixed messages.
On her own account she told the father on one visit that his parent’s presence at McDonalds was for the children's safety, also informing his parents at the same time how bad the father was. The father then called the mother a "lunatic" and this was all played out in the children's presence because the mother left them in the car, apparently crying, on her account, while she engaged the father and his parents.
Is it no small wonder, against this background, that these children may be confused and distressed when seeing their father.
I note the concerning accounts, again, based on the mother's own evidence, and the accounts of the children to Mr Moriarty, that they have started to write their father hateful notes; one child had booby trapped her bedroom door so that the father could not enter; the boys had placed marbles on the floor to trick their father; and some of the children had engaged in sabotage of his property, all of which the mother was aware of because it was reported by her in her own affidavit and some of this was reported to Mr Moriarty.
Nowhere however in 137 paragraphs of evidence placed before me, did the mother outline how she was addressing, in any meaningful way, the children's ongoing denigration of their father and what positive steps she had taken to respond to the children's behaviour, as evidenced in some 10 pages of exhibits being notes to her from the children about their father. Some of these behaviours appear to have been in existence since 2006 when the father was living in Mxxx and the rest of the family had returned to Brisbane.
I have had regard to the recommendations of Mr Moriarty, who has had the benefit of seeing the parties and the children on two occasions. I have considered the relevant factors that I am required to consider under s.60CC of the Act, including the benefit to these children of having a meaningful relationship with their parents, and the need to protect the children from psychological or physical harm or from being exposed to abuse or family violence, both of which are primary considerations in determining what are in the children's best interests. In that regard both parties are in agreement as to the former primary consideration.
As to the latter primary consideration, I accept that these children are presently experiencing some difficulty in spending time with their father and I mindful that any orders I make must accommodate this. I accept the submission of the applicant father that this is not a case where the children spending time with the father will do more harm than good.
In my view, the children are at a real risk of being further alienated from their father unless immediate steps are taken to address their current relationship with him, including the potential for family conflict at changeovers. In my view, the children are at risk of emotional abuse and psychological harm unless there is a reparation of their relationship with their father and a cessation of family conflict.

I take some comfort from Mr Moriarty's observations that whilst the children have an enmeshed relationship with their mother, and whilst the children are very angry with their father, their expressed fears of him are not consistent with their non-verbal behaviour towards him and that it was his view that, under more normal circumstances, they will be unable to curb their natural desire to form a stronger relationship with him.
In relation to the additional considerations, obviously the children's views in relation to their spending time with their father are before me. On Mr Moriarty's account their attitude had hardened by the second interview. However, their views must be considered in the context of the history of the marital breakdown, the level of maturity of the children, and the totality of their interests. For example, a young child may express a strong wish not to attend school and may be resistant to every parental attempt to ensure that they attend school. Their expressed wish, however, not to attend school would be considered in the context of the importance of the child in the interim and in later life obtaining an education. And most people would reject as absurd any parent who accepted school refusal by a young child and did not undertake every reasonable intervention to encourage and ensure their child attended school. Parents are there to parent children.
I also must take into account each parent's willingness to promote the children's relationship with the other parent. In this regard, if I were to simply have regard to the mother's own material and the children's statements to Mr Moriarty, she has been found wanting. On her own case she has engaged in a pattern of conduct prior to and following separation of isolating the children emotionally and physically from their father and creating in the children a real fear of their father. Even taking into account the fact that the conduct of both parents during their marital breakdown may do neither of them credit at times and that their behaviour is now being put under the legal microscope in adversarial proceedings, if I were to accept only the mother's account of events before and after separation I have some concern about her capacity to understand and provide for the children's emotional needs.
I note, however, Mr Moriarty's view in this regard that the mother should be afforded the opportunity to demonstrate what she says she is prepared to do - and that is to facilitate a relationship between the children and their father. I am also aware that it is not uncommon for parents who are newly separated, once afforded the opportunity to do so, to benefit from some therapeutic intervention and thereafter gain a new perspective, some understanding of the effect of marital breakdown and parental conflict on children and to more effectively negotiate the post separation parenting path in their children's interests.
Whilst I accept that the children may suffer some initial distress at spending time with their father, that distress will hopefully be short lived and it must be balanced against the promotion of their overall best interests, which is a reparation and support of their relationship with their father. This relationship is of equal importance to them, as is the promotion and support by him of their relationship with their mother.
This will very much be dependent, it seems to me, on how these parents now act. It is their children's right to develop a meaningful relationship with both of them. A failure for either parent to understand this and back it up with changed behaviours and attitudes where necessary is potentially extremely damaging to these children and their ability to develop into well rounded, emotionally whole adults.
If both parents are committed to a parenting arrangement that promotes the children's relationship with the other parent, then this is their opportunity to put into action the words they have put in their affidavits. I propose to make the following interim orders:
ORDERS DELIVERED
I do not propose to make order 10 as this matter will come back before this Court before the first 2008 school holidays, which commence on 5 April 2007 and by that time if the matter has not resolved then there will be an updated report by Mr Moriarty. I am also mindful of the recommendations of Mr Moriarty in paragraph 85 of his report.
In relation to order 10 I accept that there is merit in changeovers taking place at the children's school, given past difficulties and taking into account the regime of time proposed by Mr Moriarty during school term.
ORDER DELIVERED
I believe that this is a better regime of shared time and it avoids a supervisor during the school term, and a further handover on a Sunday night, as was proposed by the mother.
ORDER DELIVERED
ORDERS DELIVERED
It seems to me that it is appropriate to make those orders on an interim basis given some of the issues that were raised in the material and to ensure clarity.
ORDERS DELIVERED

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM

Acting Associate: E Crutchfield

Date: 21 February 2008