HEROUZ & HEROUZ

[2018] FamCA 508

FAMILY COURT OF AUSTRALIA

HEROUZ & HEROUZ [2018] FamCA 508

FAMILY LAW – CHILDREN – INTERIM – Where the mother claims that the children are exhibiting problem behaviour and seeks that the previous interim orders be changed to limit the time the children spend with the father – Where the father asserts that the children wish to spend more time with him – Where, without the assistance of the expert report, there can be no conclusion reached as to the cause of the children’s behaviour – Orders made extending the father’s time with the children to avoid changeovers on Sunday afternoon – Orders made for telephone contact and school holiday time.

APPLICANT: Ms Herouz

RESPONDENT: Mr Herouz

INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

FILE NUMBER: SYC 4915 of 2017

DATE DELIVERED: 11 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Moutasallem

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

Orders

1. That the children, D born … 2007, E born … 2009 and F born … 2012 spend time with the father as follows:

   (a)       During school terms:

   (i)Each alternate weekend from after school on Friday until they are delivered to school on Monday; and

   (ii)Each alternate Friday afternoon from after school until 7.30 pm when the father will cause them to be returned to their mother’s home.

   (b)       During school holidays:

   (i)In the short school holidays for one week and in the absence of agreement, the time will commence at 9 am on the Monday following the last day of school and end at 7.30 pm on the following Sunday when the father shall deliver the children to the mother’s home.

   (ii)In the Christmas school holidays commencing in 2018, for three periods of one week and, in the absence of agreement, those periods shall be:

   1.   from 12 noon on Christmas Day until 7.30 pm on 31 December;

   2.   from 9.00 am on 7 January 2019 until 7.30 pm on 13 January 2019; and

   3.   from 9.00 am on 21 January 2019 until 7.30 pm on 27 January 2019.

   (iii)In the Christmas school holidays commencing in 2019 and thereafter, for one half on the holiday period and, in the absence of agreement, the second half.

2. That the mother cause the children to telephone the father on each Monday, Thursday and Saturday when they are not living with him.

3. That notwithstanding any other order, the children shall spend Christmas time with each parent as follows:

   (a)       Commencing in 2018 and each alternate year thereafter:

   (i)With the mother from 12 noon on Christmas Eve until 12 noon on Christmas Day; and

   (ii)With the father from 12 noon on Christmas Day until 12 noon on Boxing Day.

   (b)       Commencing in 2019 and each alternate year thereafter:

   (i)With the father from 12 noon on Christmas Eve until 12 noon on Christmas Day; and

   (ii)With the mother from 12 noon on Christmas Day to 12 noon on Boxing Day.

4. That notwithstanding any other order, the children shall live with the mother on the weekend of Mother’s Day from 7.30 pm on Saturday evening and their time with the father on that weekend is otherwise suspended.

5. That notwithstanding any other order, the children will spend time with the father on Father’s Day from 7.30 pm on the Saturday evening until Monday morning and their time with the mother on that weekend is otherwise suspended.

6. That each party is restrained from discussing these proceedings with the children, other than to explain to the children the effect of these orders.

7. That the mother’s application to restrain the father from attending the children’s extracurricular activities is dismissed.

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 Herouz & Herouz 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 SYDNEY

FILE NUMBER: SYC 4915 of 2017

Ms Herouz

Applicant

And

Mr Herouz

Respondent

REASONS FOR JUDGMENT

1. On 5 September 2017 I heard an interim application in relation to the parenting of three children, D born in 2007, E born in 2009 and F born in 2012 (“the children”).

2. By judgment delivered and orders made on 6 September 2017, a regime was put in place whereby the children lived with the mother, Ms Herouz, and spent time with the father, Mr Herouz, on alternate weekends from after school on Friday until Sunday at 7.30 pm and on Friday afternoon in the intervening week from after school until 7.30 pm.

3. At the time of that interim hearing, the evidence was that the children missed their father and wanted more time with him.

4. The judgment delivered on 6 September 2017 records:

   19.      The children were each interviewed by DFCS on 10 August 2017.

   20. F told DFCS that she loves her daddy and he gives her cuddles. When asked about her worries, F said that daddy shouts at her and it hurts her ears and gives her a headache. She said that her father smacks her on the arm but she also said that this last happened when she was two years old.

   21. E said that it was a bad thing that his father lived in a separate house. He said that his father shouts when he is angry and “squeezes our arms, he holds me tight even though I have small arms”. E said that his father last hurt him in July sometime.

   22. D told DFCS that his father was a good dad and he liked going on trips in the car with his father. Asked if there was anything he did not like about his father, D said that his father “gets a bit upset”. He said that he can tell if his father is “in a mood” and he tries not to get in a fight with his father. He said that the rest of the family “doesn’t like it”, I infer meaning that they do not like the father being “in a mood”. D said that his father has not hurt anyone but acts and talks as if he has stopped himself from doing so. D said that he talks to his aunt if he is upset.

   23. D told DFCS that his mother does not let him see his father for more than a few hours and that he is “desperate” to see his father.

   24. The father was also interviewed by DFCS. He said that the mother’s main concern was that he raised his voice from time to time but denied that he had acted aggressively towards the children. He said that the mother also smacked the children.

   25. The father has talked to the children about equal shared care and discussed a 50/50 arrangement with the boys at least.

   26. He denied physically disciplining the children except “on the back of the hand”. He told DFCS that the mother had no boundaries, and that she locks the children in their rooms. Her method of discipline is that they have three “strikes” then they have to go to their room or are not allowed to watch Netflix.

   27. DFCS told the father that all three children said they were scared when he yelled. The father responded that he was attending mindfulness counselling which was helpful to him and that he was “self aware”. He did not acknowledge any effect on the children of his behaviour.

5. The judgment concluded:

   33. Although the conflicting accounts cannot be determined here, there is evidence that causes concern about the father’s ability to care for the children’s emotional needs and corroborates the mother’s accounts of his being harsh in physically disciplining them.

   34. Annexed to the mother’s affidavit is a letter from E’s teacher dated 30 August 2017, stating that his behaviour in class has improved over the past few weeks. She states:

   At the start of the year, I reported that E’s behaviour was impulsive and disruptive and hindering his application in all tasks. I had also checked with E’s previous teacher who had not observed such behaviours last year. Over the last month especially, E is much calmer and able to follow directions quickly and complete his work.

   35. Whether the change in E’s behaviour, as observed by his teacher, is due to his removal from his father or to his removal from the stress and tension created by the breakdown of his parents’ relationship is a matter that will be determined with the assistance of expert evidence in the substantive proceedings, but the possibility that at least part of the explanation is that he is removed from his father’s discipline cannot be disregarded.

6. In December 2017, the parents agreed to extend the time the children spent with their father so that they spent time with him on Christmas Day and approximately on a week-about basis for the Christmas school holidays.

7. The children spent time with the father between 29 December 2017 and 5 January 2018, from 12 January 2018 until 19 January 2018 and from 26 January 2018 until 29 January 2018.

8. On 18 January 2018, at a time when the school holidays were being shared, the parents and the children were interviewed by a Family Consultant who produced a Child Responsive Memorandum dated 25 January 2018.  

9. The Family Consultant set out the parents’ versions of their dispute in the following terms:

   Both parents reported having close and affectionate relationships with the children.

   [D] and [E] will reportedly continue to attend [H School] in [Suburb C] in 2018, and they will be in Years 5 and Year 3 respectively. [F] will commence Kindergarten at [H School] in 2018.

   [The mother] said that [D] and [E] had a difficult year at school in 2017 because of the parental separation and the temporary relocation out of the family home to live with the paternal grandfather. She said that both children appear to have settled and improved since returning to live in the former family home in the end of October 2017.

   [The mother] said that [F] also had behavioural issues at preschool in 2017, in that ([F]) was aggressive toward other children. [The mother] said that F’s behaviour has improved and that [F] is looking forward to commencing Kindergarten next year.

   Both parents reported that [D] and [E] are involved [sic] afterschool and weekend activities, such as … in summer and … in winter. They both also play [a musical instrument]. [F] attends swimming lessons.

   [The father] said that he is now the “co-coach” of [D’s] … team, and that he attends their … training each Monday and their games each Saturday.

   [The mother] said that, in her view, the parental separation has improved the children’s relationship with [the father], because he now spends quality time with them, and is actively involved in the children’s extracurricular activities and school.

   [The mother] described the children’s relationship with [the father] as “complex”. She asserts that the children are fearful of him, particularly [F], because he “shouts”, uses “excessive discipline” and “intimidates” the children. [The mother] said that on one occasion, that [E] had a “panic attack” because he was scared to spend time with [the father], because he was worried that his father would hurt him.  [The mother] said that [F] can be “anxious” in the lead up to spending the weekend with her father and she ([F]) does not sleep well. 

   [The mother] claims that [the father] frequently talks to and coaches the children about their parenting arrangement. She believes that [the father] is manipulating the children to express a view that supports his proposal. [The father] denies this.

   [The mother] claims that [the father] talks negatively about her to the children, and that all of the children have referred to her as a “stupid bitch” or “fucking bitch”.

   [The father] said that the children frequently tell him that they want to spend more time with him and that they want to live in an equal time arrangement. He claims that the children are very distressed that they do not spend more time with him. He said that [D] an [sic] [E] call him every day and that he also frequently speaks to [F].

   [The father] said that the children find returning to their mother’s care stressful and emotional. He said that the children often refuse to get out of his car. [The father] said that [E] particularly can be emotional for 20 minutes at handover.

   [The father] claims that [the mother] tells the children that they cannot spend more time with him because of his work commitments. [The mother] describes [the father] as a “highly strung” person. She said that he has a stressful job and works long hours and she does not believe that he has the capacity to manage having the care of the children on an equal time basis.

   [The father] asserts that there are no issues with regard to his parenting capacity or with his availability to care for the children in an equal time arrangement. He repeatedly said that his work is flexible can [sic] could accommodate him caring for the children in an equal time arrangement.

   [The mother] said that it is important that [F] has a stable routine in 2018, so that she can adjust and settle into Kindergarten.

   [The mother] indicated the children spending additional time with [the father] is a possibility, however, she things [sic] that this should commence when the children are older and more settled. She also indicated that [D] and [E] may express a view when they are older, that they would like to spend more time or equal time with their father. She said that she would be “open” to this.

10. In relation to her interview with D, the Family Consultant noted:

    [D] said that he enjoys school and will be commencing Year 5. He said that he plays … and … and that he wishes he could spend more time with his friends.

    [D] indicated that he has positive relationships [sic] his siblings, and with both of his parents, saying that he enjoys his time with them “equally”.  He expressed a wish to have a bit more time with his father, during the mid-week. [D] suggested that he could spend an additional afternoon with his father, in the week that he does not spend time with him …

    [D] considered that it was fair that he spend weekends alternating between his parents.

    [D] said that he feels more settled and more accepting of his parents’ separation and his new living arrangements. He said that [E] continues to have difficulty adjusting to the current parenting arrangements, and that when upset, [E] can be angry, swears and says “mean” things to [the mother]. D said that he worries about [E] because [E] is “stressed with all the changes”.

    [D] said that Sunday changeovers can be hard to “leave one parent and join another” because he wishes that his parents were still together. 

    [D] said that he has not given much thought to final parenting arrangement for him and his siblings. He said that he would like to complete primary school first and then consider what parenting arrangement would be best for him.

    [D] said that he was never smacked by either of his parents.

11. In relation to her interview with E, the Family Consultant noted:

    [E] said that he does not really like school, other than sports and maths. [E] said that he commences Year 3 and that he is captain of his [sports] team, which his father assists with training.

    [E] said that he does not like [sic] mother, and he expressed a strong desire to spend more time with his father, and less time with her.

    [E] described [the father] as “gentle”. He said that his father does not smack him or his siblings. [E] said that [F] is the most in trouble with her parents because she sneaks sweets at both houses. [E] said that he and his siblings are smacked by their mother.

    [E] said that there is “nothing” that he likes doing with [the mother] because most of the time, “she is smacking me because I want more time with Dad”.

    [E] said that he would like to live with his father because he does not have “fun” with his mother. He said that [the mother] is frequently “mean” about [the father], and “harsh” and “rude” to him ([E]). [E] said that, sometimes he swears, and is rude to [the mother] because he wants to live with [the father]. [E] said that [the mother] does not swear at him, but that she shouts at him.

    [E] said that, when his is spending time with his father, he [the father] appears more focused on [D].  [E] said that this makes him feel “upset and sad”. [E] said that [D] always gets what he wants from [the father] and that he feels like he “misses out”.

    [E] said that when his were parents lived together, he spent about 70% of his time with his mother, and only 30% of his time with his father, because he [the father] was working. [E] said that prior to the separation, he had a positive relationship with [the mother] and he enjoyed spending time with her. He said that his mother did not shout at him when his parents were living together.

    [E] said that he saw his parents fighting “a lot”, prior to separation.

    [E] said that [the mother] called the police at his [sport] gala day when [the father] refused to sign paperwork about the parenting arrangement. [E] said that that police told [the father] “that he is right” about the parenting Orders and arrangements.

12. The Family Consultant also interviewed F. She reported:

    [F] said that she is looking forward to commencing Kindergarten this year and attending the same school as her brothers.

    [F] described having typical sibling relationships with her brothers, and positive relationships with her parents, both of whom she enjoys spending time with.

    [F] said that she would like to spend a little bit more time with her father, but she did not provide further information about this. She appeared agreeable with spending an additional afternoon during the week (returning after dinner) or an additional night in her father’s care.

    [F] thinks the current parenting arrangement is suitable for her because “they both play with me”. She expressed no concern about spending time with either of her parents.

    [F] said that her parents’ separation continues to be difficult for her and that she feels “sad” about this.

    [F] said that her father used to smack her and her brothers, but she said that this has stopped since separation. [F] said that her mother has never smacked her, [E] or [D].

    [F] said that, when her parents lived together, they sometimes argued. She said that her parents’ conflict can also occur at changeovers.  

13. The Family Consultant noted that “In their interviews, all three children spoke about [the father] now having ‘flexi time’ at work, which would enable him to care for them.”  

14. The Family Consultant also noted that D appeared to be “acting out” against the mother.

15. It is apparent that there has been a considerable change in the children’s reported perceptions of their parents in the period between the interview with DFCS in 2017 and the interviews with the Family Consultant earlier this year.

16. The Family Consultant reported that some agreement was reached between the parents in the following terms:

    The parents agreed to increase the time that children spend with [the father]. Commencing in Term 1, 2018, their time with him includes:

    o   From Friday afternoon until Monday before school in the first week and from after school until after dinner on two days (either Tuesday or Wednesday depending on the children’s after school activities, and each Friday) in the second week.

    o   The parents agreed that this additional midweek time is to be on days when the children do not have any sporting activities, in order to provide [the father] quality and interrupted time with them. 

    o   The parents also agree to share half of each school holiday period.

17. The children spent the three specified holiday periods with the father over the Christmas 2017/2018 school holidays.

1. The weekend contact was extended to end on Monday morning from early February 2018 when the children started school. In a text exchange on 7 February 2018 the father asked if the change could occur on the following weekend and the mother replied, “Yes, for this weekend and going forward. I will leave their uniforms for Monday with their [sports] clothes and sleeping toys.”

2. The children stayed with their father on Sunday 11 February 2018 and Sunday 25 February 2018.

3. On 9 March 2018, the solicitors for the mother wrote to the father, raising concerns about the children’s inappropriate behaviour towards her and stating her intention to revert to the orders of 6 September 2017.

4. On 27 March 2018, the mother filed an Application in a Case seeking to reduce the time the children spent with the father so that they were returned to her on Sundays at 4.00 pm rather than 7.30 pm. She also sought an order which restrained the father from attending the children’s extra-curricular activities (in particular the boys’ sporting activities) when he would not otherwise be spending time with them.

5. In response, the father sought orders to extend the weekend periods to end on Monday morning, orders for school holiday time and time at Christmas, and orders for telephone contact with the children. The mother opposed the father’s applications for holiday time and telephone contact.

6. The parents each sought to retain the time the children spend with the father on Friday afternoons in the intervening week.

7. On 10 May 2018, orders were made for the appointment of a single expert, Dr J, to prepare a report. Interviews for that report are scheduled to be conducted in October 2018.

8. The mother’s interim application of 27 March 2018 and the father’s response came before me for hearing on 9 July 2018.

9. The mother’s position is that the children are unsettled because they are spending too much time with their father who is overtly influencing them to say that they want to live with him and causing them to be disrespectful and rude to her. The children have displayed unacceptable behaviour which includes writing rude and offensive notes to the mother and, in E’s case, running away. She deposed that, when the children are returned to her at 7.30 pm on Sunday, she needs two hours to get them settled and consequently they are tired on Monday. Counsel for the mother submitted that the children’s time with the father should be reduced so that they are returned to her at 4.00 pm on Sunday and that the father should not be permitted to coach and attend their sports.

10. The father’s position is that the children are upset because they are spending so little time with him and because, they say, the mother denigrates the father and interferes with their attempts to communicate with him. The father deposed that he has not spoken to the children on the telephone since February and that D has told him that the mother has intercepted and destroyed a letter that D wrote to his father. The father deposed that the children constantly tell him that they want more time with him and that changeovers between the parents are difficult because the children want to stay with him. Counsel for the father submitted that the difficulties with changeovers would be ameliorated if the children were returned to school on Monday.

11. The matters to be determined are:

    ·    When the alternate weekend time should end;

    ·    Telephone contact;

    ·    Holiday time; and

    ·    Christmas Day time.

Weekend time

1. Without expert assistance, such as will be provided by Dr J, it is not possible to determine why the children are behaving towards their mother as they do.  Both the mother’s explanation and the father’s explanation are plausible. However, there may be many other causes for their unacceptable behaviour.

2. I do not accept the submission on behalf of the mother that reducing the children’s time with their father will be a solution. It is more likely that the children’s hostility towards their mother will be increased if they perceive that she is responsible for curtailing their time with their father.

3. Extending the weekend time with the father to end at school on Monday morning will alleviate the conflict currently apparent on that changeover.

4. It may be, if the mother is correct, that the extended period will give the father more time to influence the children. However, he already has ample opportunity to do that and I do not accept that one more night with him will be detrimental to their welfare.    

Telephone contact

1. The father asks that the children’s telephone contact with him be regulated in circumstances where he says that he has not spoken to them on the telephone since February.

2. Annexed to the father’s affidavit is a text message exchange between the parents where the father asks that the children telephone him after three unanswered calls. The mother replied, on 7 February 2018:

   The children are free to call you when they want to speak with you. I have asked them to ring between 4 and 6pm to maintain their bedtime routine … I can get them to call you this afternoon if you would like.

3. The mother does not dispute the father’s evidence that the children have not called their father since February.

4. The hostility between the parents is such that it would be difficult for the children to tell their mother that they want to talk to their father. No doubt they also feel pressured by their father to contact him.

5. The father proposes that the children call him on Monday, Thursday and Saturday if they are not in his care on those days. The mother opposes that application but proposes no alternative. Her position, that the children should not have regular, specified telephone contact with their father, was not satisfactorily explained.

6. Certainty and regularity may assist the children to deal with the pressures being applied to them in relation to telephone calls. They should be told that they will call their father on the specified days and the mother will facilitate the calls. On his part, the father must explain to the children that he does not ask them to call at any other time.

Holidays

1. Accepting the mother’s evidence at its highest does not lead to the consequence that these children should not have school holiday time with their father.

2. There is no evidence that they did not enjoy the time at Christmas over the 2017/18 school holidays. They had ample opportunity to tell the Family Consultant on 18 January 2018 if they had any concerns, as did the mother.

3. The children should spend one week of the short holidays with their father and three periods in the Christmas holidays, provided that the father is not working and is available to care for them. In the event that the matter is still unresolved by the end of 2019, the Christmas holidays should be shared equally.

Christmas day

1. The children spent time with their father in 2017 from noon on Christmas Eve until noon on Christmas Day.

2. He proposes that this arrangement continue in alternate years.

3. The mother proposes changeover at 3.00 pm on Christmas Day.

4. Neither party adduced evidence or made any submission directed to his or her proposal being more appropriate for the children.

5. The orders will provide that, in the absence of agreement, changeovers will take place at noon so that, in each year, the children will have Christmas Eve and Christmas morning with one parent and Christmas dinner with the other.

6. This arrangement also has the advantage of allowing the children, in 2018, to spend the week before Christmas with their mother and transition to a week with their father on Christmas Day.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 July 2018.

Associate: 

Date:  11 July 2018