Herridge & Luckwell & Anor

[2012] FamCA 680

FAMILY COURT OF AUSTRALIA

HERRIDGE & LUCKWELL  AND ANOR [2012] FamCA 680

FAMILY LAW – CHILDREN –  Interim parenting orders – allocation of equal shared parental responsibility – where the children live nine days out of every fortnight with the mother and five days with the paternal grandmother – where the father was incarcerated for an assault on his former partner, to which he pleaded guilty - where the children spend time with the paternal grandmother so as to ensure an ongoing connection with the father and the paternal family –where the maternal family have made allegations throughout proceedings that the father has sexually abused the children – where the mother now appears to be assisting to facilitate a continuing relationship between the subject children and the father – where the mother, her partner and the maternal grandparents provided undertakings to the Court not to denigrate the father or discuss the proceedings with or in the presence of the children - where there is a high risk that the extended maternal family will continue to obstruct the children’s relationship with their father

FAMILY LAW – CHILDREN – Significant change in circumstances justifying re-litigation - where final orders were made little more than six months prior to the current interim matter – where there was a significant change in circumstances warranting reopening of the case due to the father’s incarceration arising from an assault on his former partner

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA

The Marriage of Rice and Asplund (1978) 6 Fam LR 570.

APPLICANT: Ms Herridge

FIRST RESPONDENT: Mr Luckwell

SECOND RESPONDENT: Ms Handerson

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCF 702 of 2006

DATE DELIVERED: 15 August 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Galloway Family Law

FIRST RESPONDENT: In person

SECOND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW
Mr Squires

Orders pending further order:

1. That the final orders of 17 January 2012 are suspended pending further order.

2. The parents shall have equal shared parental responsibility for the children B born … April 2002 and H born … July 2003 (“the children”) on the following terms and conditions:

   (a)each parent shall consult the other in relation to any proposals concerning the schooling, serious medical treatment or intervention, religion and other long term issues relating to the children or either of them;

   (b)each parent will do all things necessary to enable agreement to be reached by them as to such issues.

3. The children shall live with the mother at all times other than as set out in Order 4.

4. The children shall live with the paternal grandmother as follows:

   (a)during school term each alternate week from the conclusion of school Wednesday until return to school Monday commencing 29 August 2012;

   (b)for one half of each school holiday period commencing on the last day of school term at the conclusion of school and concluding at 10.00 am that marks the mid-point of the school holiday period in even numbered years commencing at 10.00 am on the day that marks the mid-point of the school holiday period and concluding with the children returning to school on the first day of term in odd numbered years.

5. The paternal grandmother shall have responsibility for the day to day decisions about the children whilst they are spending time with her.

6. The time with the children and their paternal grandmother shall be suspended during the weekend on which Mother’s Day falls from 6.00 pm on the Saturday evening prior to the day to the conclusion of that period.

7. Changeover of the children shall be implemented as follows:

   (a)by the mother and the paternal grandmother (or their nominees) collecting the children from and returning the children to their respective schools when the orders provide for changeover to or from school;

   (b)at McDonalds Family Restaurant at E at the beginning and conclusion of periods that are not stated to commence and conclude at school/s unless otherwise agreed.

   (c)only the mother and paternal grandmother shall attend changeovers that are not stated to commence or conclude from the children’s school unless the substitution of a third party is agreed in advance.

8. The mother shall facilitate the children’s communication with the father by way of telephone on Sunday mornings and at any other time which can be arranged between the parties and by letter with the mother to assist and facilitate the children to receive letters, cards and gifts from the father, and read, or have read to them the father’s letters and to send letters to the father if the children wish to do so.

9. The paternal grandmother shall facilitate the mother’s communication with the children by way of telephone on Thursday evening during the period of time they spend with her with the mother telephoning the paternal grandmother and the children being made available by the maternal grandmother to take the telephone call.

10. All parties are restrained from changing the enrolment of the children at their present schools, namely B at HT Public School and H at LT Public School without the prior written consent of both parents or further order of the Court.

11. Each of the parents and the paternal grandmother shall keep each other advised of their current contact telephone numbers.

12. Each of the parents shall each be entitled to receive copies of all school reports, correspondence and other material ordinarily sent by the children’s school to parents and both shall be entitled to obtain school photographs of the children and in that regard it will be sufficient for the mother to either provide such documents to the paternal grandmother or to authorise the children’s schools to release such material to the paternal grandmother for provision of copies to the father.

13. Each of the parents and the paternal grandmother shall keep the other fully and promptly informed of any significant injury, medical or the like condition affect either child and shall forthwith notify the other party of any hospital, medical, dental or other treatment by a health professional either child has had or is to receive and shall authorise the person and organisation which are to provide or have provided such treatment to give the other party any information they seek from that person or organisation.

14. Except in a medical emergency, each parent and the paternal grandmother shall notify the other party of any proposal to seek medical, psychiatric, psychological, neurological, behavioural or educational treatment, therapy or counselling or advise about or advice about or for the children or either of them or subjecting them or either of them to any observations, examination, consultation, test, questionnaire or admission to or appointment at or visit to any hospital, surgery or the likely premises of a health professional or pharmacy and provide the other party with specific details of such proposal.

15. Each of the parents and the paternal grandmother are hereby restrained from taking the children or either of them to any police station or Office of the Department of Family and Community Services except in an emergency or in relation to an occurrence or occurrences which do not involve any allegation of a criminal act against the children or either of them by the father or the mother or any member of their family without first obtaining leave of the Court or the Federal Magistrates Court after providing such Court with a copy of these Orders.

16. Neither parent nor the paternal grandmother shall physically chastise the children nor knowingly permit any other person to do so.

17. Neither parent nor the paternal grandmother shall denigrate the other parent or members of the other parent’s household to or in the presence of the children and shall forthwith remove the children from the presence of any person doing so.

18. The children shall spend time with the father as follows:

    (a)in the event that the father remains in prison after June 2013, then the mother and/or the paternal grandmother shall arrange for the children to visit the father in prison not less than on one occasion per month by taking the children to the prison for that purpose;

    (b)after the father is released from prison, the father shall spend time with the children in the presence of the paternal grandmother, provided the father is living in the home of the paternal grandmother, during all such times as the children are spending time with her.

19. The father is restrained from consuming alcohol at all whilst the children are in his care and for 24 hours prior to the children coming into his care and during any time when he spends time with the children whether or not in the presence of others.

20. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21. Further consideration of this matter is adjourned to 9.30 am on 27 February 2013 for directions.

THE COURT NOTES:

(A)The Undertaking of the mother, the mother’s partner Mr A and the mother’s parents Ms L Herridge and Mr R Herridge as set out in Exhibit 2.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  (P)NCF 702 of 2006

Ms Herridge

Applicant

And

Mr Luckwell

First Respondent

And

Ms Handerson

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. There are three applications before the Court for interim orders in relation to two children, B, aged 10, and H, aged nine. 

2. The first application was filed on 19 June 2012 by Ms Herridge, the mother of the children (“the mother”).  The mother is aged 32.  The second application was filed 2 July 2012 by Mr Luckwell, the father of the children (“the father”).  The father is aged 34.  The third application was filed 3 July 2012 by Ms Handerson, the paternal grandmother of the children (“the paternal grandmother”).  The paternal grandmother is in her mid fifties. 

3. The mother asks that the children live with her and that she be permitted to enrol the children in a school near her home which they had previously attended.  The mother proposes supervised time for the father for two hours each alternate Sunday, at places and in the presence of supervisors to be nominated four days in advance by the mother.  In fact, the children will not be spending any time with the father for up to 12 months from the date of these orders, because he is presently serving time in prison.  

4. The father and paternal grandmother seek the same orders, namely:

   ·that the children live with the paternal grandmother for nine nights per fortnight and otherwise with the mother;

   ·that the paternal grandmother have sole parental responsibility for the children;

   ·orders which would compel the mother to move from her current address to live separately from her parents in close proximity to the children's schools.

5. The Court does not have the power to compel the mother to change her residence in that way, even if it were to be considered appropriate. 

6. An agreed list of documents relied on by all parties is set out below:

   1.      Orders made by consent dated 17 January 2012.

   2.      Application in a Case filed by mother dated 19 June 2012.

   3.      Affidavit of the mother sworn 18 June 2012.

   4.      Affidavit of the mother sworn 3 July 2012.

   5.      Report of Dr R dated 16 January 2012.

   6.      Application in a Case filed by the father 28 June 2012.

   7.      Affidavit of the father sworn 29 June - 2012.

   8.      Affidavit of the father sworn 7 June 2012.

   9.      Affidavit of the father in reply to affidavit of Mr SG sworn 10 April 2012.

   10.    Affidavit of the father in reply to affidavit of Ms A Herridge sworn 10 April 2012.

   11.    Affidavit of the father sworn 23 March 2012.

   12.    Application in a Case filed by the paternal grandmother dated 28 June 2012.

   13.    Affidavit of the paternal grandmother sworn 28 June 2012.

   14.    Affidavit of Ms O sworn 25 June 2012.

Short History of the Proceedings

1. There is a lengthy history of litigation in this matter.  The parents began living together late in 2000.  The two boys were born in April 2002 and July 2003.  The parents separated finally in April 2006, when the children were aged four and three. 

2. A few months later, proceedings were commenced by the paternal grandparents for contact with the children.  Since then, there have been a great many Court events and orders made.  Most recently, on 10 February 2011, final orders were made as follows:

   ·the children to live with the father;

   ·the father to have sole parental responsibility;

   ·the mother to spend time each alternate weekend from after school Friday to before school the following Monday/Tuesday, half school holidays, other special times;

   ·Specific issues orders.

3. There was a successful appeal by the mother from this decision.  The retrial was listed on 16 January 2012.  On that day, the parties reached agreement and final orders were made by consent.  Those orders were as follows:

   ·equal shared parental responsibility by the parents with provision for consultation and mediation as necessary if and when the parents were unable to agree;

   ·residence with the father nine days per fortnight and five days per fortnight with the mother from end of school Wednesday until return to school Monday, for half school holidays and other special times;

   ·specific issues orders. 

4. The proceedings were relisted on the afternoon of 16 January 2012 when orders had been made by consent. These were made primarily on the basis that the father and children remain living with the father’s partner Ms O. The afternoon following the making of consent orders the Mother made an oral application on the basis of fresh evidence about the relationship between the father and his then partner.  The application to reopen was refused with the Court noting that the mother could file a fresh application. 

5. On 19 March 2012 the mother removed the children from the father’s care. The following day on 20 March 2012 the mother filed a fresh application, which was adjourned until the 20 June 2012, when an Independent Children’s Lawyer was appointed.

6. In the meantime, the father filed a contravention application and on 13 April 2012, the Court made orders returning the children into the father’s care.  The father did not otherwise seek to have the mother penalised or for the children to spend less time with her. However, orders were made requiring the mother to complete a Parenting After Separation course, which she did.

7. Before the adjourned date of the parenting application filed by the mother in March, there was a significant event in the lives of the children. 

8. On 9 June 2012, the father violently assaulted his partner, Ms O.  Ms O suffered serious injuries.  The father was arrested, charged, imprisoned and refused bail.  He has been in custody since that date. 

9. In response to that change in the lives of the children, the three Applications referred to earlier in these Reasons were made and have now been heard.  Since that incident, the children have been living with their mother and having some contact with their paternal grandmother.

The Best Interests of the Children

1. Despite final orders being made only a little over six months ago, there has been a significant change of circumstances in the lives of the children (see The Marriage of Rice and Asplund (1978) 6 Fam LR 570 at 573-575). Their father has gone to jail after assaulting his former partner.

2. Ms O had a significant role in the care of the children and no doubt became very fond of them and they of her.  Ms O was an important person in the opinion of Dr R, expressed in a report prepared by him as the Court appointed expert dated 13 January 2012[1].

   [1]  Report of Dr R dated 13 January 2012, p 19

3. The father is yet to enter a plea in relation to the charge against him. 

   
   

   Ms O provided an affidavit for these proceedings.  Despite making it very clear that the relationship between herself and the father is now over,

   
   

   Ms O was prepared to provide information to the Court about the assault on her, the events alleged to have occurred between the maternal grandfather and her former partner, Mr M (the father of Ms O's younger son);  the impact on her son and older daughter of the particular incident; her support for the father by way of communication with both the Independent Children’s Lawyer and the Local Court in relation to the father’s offence. 

4. The children have therefore taken serious losses.  Their father is now absent from their life, they no longer enjoy a relationship with Ms O and her two children aged 18 and seven, and their time with their extended paternal family has diminished. 

Parental responsibility

1. The making of this fresh parenting application triggers the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility (s 61DA of the Act). 

2. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate to apply it (s 61DA(3)). 

3. The father, affected by alcohol, violently assaulted his partner, Ms O, in a public establishment.  The children were not present.  The father’s violent conduct and lack of judgment make it inappropriate to apply the presumption. 

4. Nonetheless, the mother seeks the continuance of equal shared parental responsibility.  There is an enormous benefit to the children if their parents jointly make decisions about them, their education, health and general welfare (s 4 of the Act).  In those circumstances, I consider that an interim order for equal shared parental responsibility is appropriate.

5. The mother appears to have demonstrated a significant change in attitude towards the father. The parties even began to work through several logistical issues during the course of the interim hearing:

   (1)how best to facilitate to arrange phone calls between the father to and children;

   (2)potential measures to allow the parents to discuss significant reports about the children and agreeing on future appointments;

   (3)reaching agreement on the father writing to the children from jail;

   (4)discussing the welfare of the children cooperatively;

   (5)discussion about what to tell the children about the father's current circumstances having taken place between the parents.

6. Past findings have been made about the mother's unwillingness to acknowledge the importance of the father to their children.  The untested evidence suggests that the mother is now trying to go about things in a different way.  It is for those reasons that I have made an interim order for equal shared parental responsibility.  The extent as to which the mother’s change of approach is permanent will no doubt be tested at the final hearing.

Residence

1. Obviously the father is not in a position to spend any time with the children at all.  In a protective way, the parents have allowed the children to believe that the father is away working in northern Queensland until mid-2003.  They have also agreed that the children will have to be told the truth about his situation eventually. 

1. The father wishes to take that step and arrange for them to visit if he is convicted and sentenced to a period of imprisonment longer than a year.  At 11 and 10, the boys should be able to cope with those arrangements, provided the parents continue to agree about when and how they are told about the father.  For that reason, an order for visits after mid-2013, if necessary, has been made.  Otherwise, communication will be by telephone call, letters, cards and gifts.

2. The question is whether the children continue to live with their mother or go to live with their paternal grandmother.  There is limited material before me about the circumstances and work commitments of the paternal grandmother.  She has a home in Newcastle with adequate space for the children.  She lives close to their schools which would reduce travel time. 

3. However, much as they might love their grandmother, the primary attachment of the children is to their mother and to their father. 

4. The view of Dr R is that the mother was the more capable parent.  He originally recommended that the children should remain with the mother unless the court found that “her ….. nature was disingenuous[2]”, they should stay with her.

   [2] Report of Dr R dated 13 January 2012, page 15

5. The Court so found and the children went to live with their father.  The children were doing well with their father at the time of Dr R’s most recent report.  In her submissions, the paternal grandmother said the relationship between the boys and her family had “just blossomed”.

The law

1. In determining what is in the child’s best interests the Court must consider the matters set out in s 60CC of the Family Law Act 1975 (Cth). The primary considerations are:

Section 60CC(2)(a) - the benefit to the children of having a meaningful relationship with both of their parents

1. The Independent Children’s Lawyer raised an intervention by the Department of Family and Community Services.  I do not consider that the removal of the children from the care of family members is in their best interests, where they have experienced so much disruption.

2. Now faced with this change, the children need the reassurance of living mostly with their mother and two younger siblings aged about four and two, soon to be three, when the mother’s third child is born in August. 

3. They also need significant time with their paternal grandmother to keep alive the expanded relationships with their extended paternal family.  The orders provide for an increase in time with the mother from the present five days per fortnight to nine days per fortnight.  The other five days per fortnight to be spent with their paternal grandmother.  One weekend per month with their paternal grandmother as proposed by the mother, would greatly reduce the significance of their father and extended family.

Section 60CC(2)(b) – the need to protect from physical or psychological harm.

1. These are interim orders.  The best interests of the children are to preserve the meaningful relationship they have with both parents and significant others, to maintain continuity at their current schools and to protect them from critical, hostile views of family members. 

2. During the course of submissions on behalf of the parties, counsel for the mother arranged for the mother, her partner, Mr A, and for the maternal grandparents, Ms L Herridge and Mr R Herridge to make an undertaking[3] to the Court that they would, at no time, denigrate or criticise the father or any members of the father’s family in conversations had with the children or with any person in the presence of the children. 

   [3] Exhibit 2

3. This is an undertaking of some significance in circumstances where there has been prolonged and intense hostility between the two extended families.  The children have been exposed to the critical views of family members and it is agreed between the parents that this has had a destructive impact on the children, including their progress at school.

Additional Considerations

1. In considering how best to promote the children’s best interests on an interim basis, I have taken the following additional matters into consideration;

Section 60CC(3)(a) - any views expressed by the children

1. Firstly, the views expressed by both children over an extended period of time that they would like to live with their mother.  The boys have not been interviewed for a little over six months.  Nevertheless, at 10 and nine, their views expressed over a long period of time can be given some weight in the context of their father being unavailable.

Section 60CC(3)(b) The nature of the relationship of the children with each of their parents; and other persons

1. Each of the boys has his closest attachment with his father and mother. The maternal and paternal extended families, including grandparents, cousins, aunts and uncles are also important in the lives of both children. 

Section 60CC(3)(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

1. Since the children have come into her care, the mother has more recently taken the opportunity to communicate with the father about decisions to be made in the lives of the children.  This is particularly significant in relation to the children’s education. 

2. B has been assessed as having severe language difficulties in all areas.  His expressive and receptive language, his core language skills, his language content and language memory are assessed to all show significant delays[4]. 

   [4]  Speech Pathology report of Ms DD, Annexure ‘A’ to affidavit of mother filed 4 July 2012.

Section 60CC(3)(d)- the likely effect of any changes in the children’s circumstances

1. Both B and H have settled into their respective schools, are well known there, and the particular difficulties that B has are apparently being met appropriately by his presence in a mild intellectual disability support class (IM) at his present school in Newcastle. 

2. A change of school, as proposed by the mother, would likely have a significant effect on the children, in my view, an adverse affect.  They have both had changes of school in the past.  The continuity of attending the same school, especially for B is crucial at this interim stage. 

3. The children will have a positive benefit from having more extensive time with their younger siblings, and being part of the increase in the family when the mother’s and Mr A’s third child is born.

Section 60 CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with a parent

1. There is some practical difficulty and expense involved in the children living most of the time, with their mother.  At present, it takes her about 40 or

   
   

   50 minutes to drive from her home to deliver each of the children to school.  I accept that this is a practical difficulty for the mother and involves up to two hours travel for her each day.  However, for the children themselves, the amount of travel is between 40 and 50 minutes twice per day, which is, on balance, tolerable when compared to the disruptive effect of changing schools on an interim basis with the possibility that there would be yet another change back in a further final hearing. 

2. For changes other than at school the mother proposes E rather than X. Provision in these orders is made for the mother’s preferred changeover at E this is due to the level of travel these orders already impose upon her.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children

1. There are doubts about the capacity of each of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs. 

2. At this time, the only parent available to the children is their mother.  She has undertaken to the Court to be especially watchful of any critical remarks that she might make about the father or his extended family.  It will also be a matter for her to exercise whatever authority she has to ensure that members of the extended family, likewise, live up to their undertakings . 

3. There is no significant criticism of the paternal grandmother’s capacity to meet the needs of the children, including their emotional and intellectual needs. It has no doubt been a benefit for the children to deepen their relationships with paternal family members since they came into the fulltime care of their father.

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander

1. The boys are aged 10 and nine.  Their mother is Aboriginal.  Their father is not.  Living primarily with their mother, will mean that they have more opportunity to enjoy their Aboriginal culture and to participate in the activities that their mother, stepfather and extended maternal family participate in. 

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. Each of the parents has taken a responsible attitude to the children in these most difficult circumstances.  Communication between the children and their father by telephone has taken place.  The children are receiving letters from their father which their mother reads out to them. 

2. Attention has been given by the parents to the need to protect the children from the impact of their father being in prison, both on them as individuals and on the possibility of their having trouble at school if that knowledge became common. 

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family

1. There has been family violence involving a member of the children’s family.  Although, their father had been separated from Ms O compared to the early permanence of their relationship, the children were accustomed to spending regular time with Ms O and her son and her older daughter, to a lesser extent.  The children are presently unaware that their father is the person responsible for injuring Ms O. 

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. In the past, there has been the utmost difficulty in the parents cooperating together for the benefit of the children.  On the evidence of both parties in these interim proceedings, there has been some improvement in that regard.  I therefore accept that there has.  Whether that can be sustained is a matter for final hearing.

2. The children have moved into their mother’s care since 9 June 2012 in circumstances where their father was arrested and simply was unable to return home.  The impact of this event has, no doubt, been softened for the children by remaining in their mother’s care. 

3. I accept the submission of counsel for the mother, that if the parties agreed that the mother and her partner were sufficiently good carers for the children to live five days per fortnight with them, then there was no logical basis for excluding the mother from being the primary carer. 

4. These interim orders provide for the children to spend the majority of the time with the mother, nine days a fortnight and five days a fortnight with their paternal grandmother.  This preserves relationships and provides some relief for the children from long car trips each day. 

5. The expressed intention of the father when he is released from jail in due course, is to live initially with his mother, where he proposes that he would spend regular time with the children.  The orders I make herein will mean the children already spend regular time at the paternal grandmother’s home and thus once the father is released these arrangements will allow the children to resume their relationship with their father after what may be a period of  up to 18 months.

6. The parents will continue to have equal shared parental responsibility.  That will cast an obligation on the mother to communicate with the father about necessary decisions before important steps for the long term are taken. 

7. To provide for the paternal grandmother to have responsibility for day-to-day decisions when the children are in her care allows her to participate in their lives in a way that will have a long term benefit for them in the absence of their father.

   
   
   
   
   
   
    

8. There are also orders providing for regular holiday time and some special occasion time for the children and their paternal grandmother. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 15 August 2012.

Associate: 

Date:  15 August 2012