Hawtin and Hawtin

[2019] FamCA 60

FAMILY COURT OF AUSTRALIA

HAWTIN & HAWTIN [2019] FamCA 60

FAMILY LAW – CHILDREN – Parenting – interim.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Hawtin

RESPONDENT: Mr Hawtin

INDEPENDENT CHILDREN’S LAWYER: Ms Mistry

FILE NUMBER: CAC 897 of 2017

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 6 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Either parent is authorised by this order to apply for a passport, without necessity of consent from the other parent, for X, born … 2010, Z, born … 2008, and Y, born … 2005, and immediately upon obtaining such passport is to lodge such at the Canberra Registry of the Family Court of Australia until further order.

2. All future NDIS application and correspondence regarding X authored by the mother must be co-signed by the father prior to lodgement.

3. The father’s further amended application in a case is otherwise dismissed.

4. The response insofar as contained within the affidavit of the mother filed 31 January 2019 seeking alternate orders is dismissed.

5. The matter is returned to the Registrar’s list pending further interim application or in readiness for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawtin & Hawtin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 897 of 2017

Ms Hawtin

Applicant

And

Mr Hawtin

Respondent

REASONS FOR JUDGMENT

1. This interim case involves the care arrangements for the three children of the relationship between the parties, X who is eight years old, Z who is 11 years old, and Y who is 13 years old.  Their current interim arrangements have been to a large extent settled since orders were made on 22 February 2018.  That settled arrangement is complex because this is a complex case.  In general terms they provide for equally shared parental responsibility under circumstances where the parties’ ability to communicate or to cooperate is demonstrably poor.  X and Y live with the Mother, Z lives with the Father.  X spends time with the Father regularly, Z spends time with the Mother on an ad hoc basis.  Y spends no time with his Father at present.  Orders provide for supervision when Z is with his brothers with an issue as to the risk that Z may present to his brothers.  Orders provide for therapy under what are very difficult circumstances. 

2. In that context the Father seeks changes by his Further Amended Application in a Case filed on 23 January 2019.  In general terms he seeks that X live with him and Z from Monday to Saturday each week.  This is a significant change that equates almost to a reversal of the current circumstances and does so in circumstances where ultimately the Father seeks that there be 50-50 sharing of time.  He seeks orders to cause X to be with the Father rather than at after-school care or school holiday care.  He seeks to add Y as a subject of supervision.  The Father seeks orders regarding passports and international travel and orders regarding the National Disability Insurance Scheme (NDIS) in relation to X.  He further seeks orders for the discharge of what would mostly be redundant orders if these orders are made and orders regarding the payment of money for therapy. 

3. The Father’s central premise is that it is in the children's best interest to make the change, again generally stated because it would involve the improvement of a limited relationship opportunity with X.  He says it would increase the prospects of X in continuing to engage in therapy, noting that X is engaging in therapy but that he says X is more likely to continue to engage in therapy if he is not exposed to his older brother and his attitudes to therapy and his non-attendance at therapy.  The Father says the changes are also justified because Z has significantly improved while living with the Father due to great efforts made by the Father in assisting Z.  The Father says that this means a change is appropriate.  He also appears to indicate that the change would be for the better, as it would avoid what he perceives as inadequacies in the Mother's engagement in the therapeutic process and he also says that the changes would be reflective of what X has expressed to his therapist. 

4. The Mother and the Independent Children’s Lawyer (ICL) opposed the changes.  The central premise is that the current arrangements in large part reflect the recommendation of the Single Expert and have resulted in an improvement for Z, for X, for X with his Father, for Z with the Mother and also for Y, although not in relation to Y's relationship with his Father. 

5. The Mother also opposes the change as she says that it may require an increase in cooperation between herself and the Father. 

6. In addition to opposing Father’s order the Mother sought trial dates and further expert assessment.

7. It was identified during the proceedings the trial dates are unavailable and that provision for further expert assessment of these boys is premature.

8. Noting that there is no currently planned overseas travel the parents advised me that they were content with orders that would facilitate the obtaining of passports on the basis that those passports would be held in the Canberra Registry of the Family Court of Australia pending further order of the Court.

Key Factual Matters

1. The Single Expert in the proceedings is Ms G.  Her report is provided at exhibit ICL1.  The Father emphasises that that report is now twelve months old. 

2. The report noted then significant emotional distress for Z.  It noted Z's manipulation of his family and those around him and noted that Z was unable to live across two households and that it presented safety issues for Z himself and for the family.  The recommendations, without reciting all of them, as made by Ms G include that Z would live with the Father, which is the current arrangement, that X would spend alternate weekends with the Father, that Y would engage in email and other activities with the Father, that Z and Y would not have contact with each other until it was recommended, that Z would be supervised, assessed and receive psychological or psychiatric support and that the Mother’s and Z's relationship was to be a treatment goal. 

3. The Father in particular placed emphasis upon reporting material from Mr H, who is the therapist working with the members of the family, particularly with the boys.  His is a current therapeutic process.  The Father says that the Mother has undermined this process, it seems in particular by being tardy in engaging with it.  The Mother disagrees that she has done so. 

4. Generally, the therapeutic process appears to be progressing.  Mr H notes that Y is currently resistant to engaging in therapy, but despite his general resistance to therapy there has been some engagement.  He notes that Z and the Mother now appear to be comfortable together.  He noted that most of the therapeutic plans have been implemented and that the key blockage is Y.  He thought that there should be no restriction regarding Z and X in either parent's home.  He noted that X desired to have Mondays through to Fridays at his Father's home. 

5. The Father has emphasised that he wants the arrangements for the boys to evolve and to progress.  He wants to see the three boys together.  Ultimately he seeks that the arrangement be for 50-50 time between him and the Mother.  Although he perceives this to be the endpoint it is not what either of the parents seek at present.  Orders sought by the Father are for substantial and significant time with X, as a change. 

6. The Father helpfully pointed me to the various legislative provisions that I am to take into account. When it comes to determining the paramount consideration, which is what is in the best interests of these children I am to gauge that by the considerations set out at s 60CC of the Family Law Act. Not all of those considerations carry weight in the current state of the case.  One that does is the question of the benefits of meaningful relationship. 

7. There is not, at present, meaningful relationship occurring between the Father and Y.  There is some question whether that is yet occurring between the Mother and Z, although it is apparent that it is progressing and it is a matter that the Father says that he is encouraging.  It is difficult not to think that the benefits of relationship that X has with his Father might increase if his time with the Father is increased.

8. Of further consideration of importance in the proceedings is the need to protect the children from the effects of abuse, neglect and exposure to family violence.  The risks in relation to this matter appear to be dissipating since the previous interim orders were made in so far as they might relate to Z.  Under the current arrangements it appears that Z has begun to thrive and the evidence strongly supported Z's improvement. 

9. I am to take into account the views of the children, in particular, the views expressed by X to Mr H. However, as s 60CC makes clear, I am to consider what weight is to be given to those views. I am to consider matters such as X's maturity and level of understanding. Although X might have said to Mr H that he wishes to spend the weeknight times with his Father there is little at present to enable me to place significant weight upon what X has said to Mr H. X is eight years old and both his reasons for making such an expression and his understanding of the implications of such an expression are unknown to me.

10. I am to look at the nature of the relationships, particularly the relationships between the children and the parents.  The Father’s and Z's relationship, as far as I can ascertain, is apparently strong.  It is a little unclear as to the status of X and Z's relationship.  Y and Z’s relationship appears to be improving.  Y and the Father's relationship seems not to be existent at the moment.  Z's and the Mother's relationship is improving, and the Mother’s and X's relationship is apparently strong.

11. On the question of the ability of parents to emotionally support the children, given the improvements that have been happening this family there is a reasonable inference to be drawn that both parents are demonstrating an ability in this respect, although I am unable to identify the precise extent. 

12. I am also to look at the likely effect of a change in circumstances.  I consider in the unique circumstances that face Y and Z and X that this is a pivotal consideration.  There is reason to hope that an increase in time between X and his Father would have flow-on benefits to the relationship between X and his Father, and X and Z.  But the proposal made by the Father is a reversal in where X primarily lives.  It is a stark and abrupt change. 

13. Against the hope that there would be some benefits of an increase in time with the Father and Z it may be seen that under the present arrangements firstly, most of the therapy is going ahead.  Secondly, there is an improvement in these boys in almost every front.  Thirdly, the ICL indicates that there has been a carefully evaluated balance for the family with children with very different needs in the current arrangements. Fourthly, if in fact the boys are improving as they appear to be there are legitimate concerns that the disruption to the current regime runs a risk of disrupting this careful therapeutic balance.  Under these circumstances and giving particular weight to the immediately above consideration I will not accede to the Father's proposal for the change for X.

14. Despite appearing to be the case that Y has caused some physical hurt I do not propose to make him the subject of supervision.  I do not at present consider that the risk is sufficient to justify such a step.  It appeared that the proposition that Y be supervised was a last moment proposition.  Rather the extent to which he is supervised should be a matter for the judgement of the relevant parent, in most cases at the moment the Mother, at the relevant time. 

15. The Father seeks a specific order regarding the management of X's needs through the NDIS.  It is sensible that both parents are involved in relation to this and I will make the order in the general terms sought by the Father. 

16. The Father sought a discharge of a number of different orders.  There was one I was unable to identify and it was unclear to me why the orders required a specific discharge. 

17. The Father also sought some payment orders which seem to be primarily directed towards therapy.  I am afraid that I do not have a clear enough picture of the financial circumstances, including what each party is paying for, and the jurisdictional basis upon which am called upon to make those orders and so I will not make those orders.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 February 2019.

Associate:

Date:  14 February 2019