Hobart and Hobart

[2009] FamCA 872

FAMILY COURT OF AUSTRALIA

HOBART & HOBART [2009] FamCA 872

FAMILY LAW – CHILDREN – Parenting orders – Husband neither consents nor opposes orders – Reasons why orders are in the best interests of the children

Family Law Act 1975 (Cth)

APPLICANT: Ms Hobart

RESPONDENT: Mr Hobart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10013 of 2007

DATE DELIVERED: 31 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 31 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MCNAMEE

SOLICITOR FOR THE APPLICANT: WILLIAM J KEOUGH

SOLICITOR FOR THE RESPONDENT: MR MULVANY

SOLICITOR FOR THE RESPONDENT: T J MULVANY & CO

INDEPENDENT CHILDREN’S LAWYER: MR LYNCH

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: PETER LYNCH

Orders

1. That all previous parenting orders regarding the children L born … January 1995 and N born … March 1997 be discharged.

2. That the husband and the wife have equal shared parental responsibility for the children.

3. (a)      That the children live with the husband and wife on a rotating weekly basis (subject to Order 3(b) hereof) with the children to live:

   (i)with the husband from after school Friday (or 4.00pm if a non-school day) commencing 4 September 2009; and

   (ii)with the wife from after school Friday (or 4.00pm on a non-school day) commencing 11 September 2009;

   (b)at Christmas:

   (i)with the wife from 3.00pm on Christmas Eve until 3.00pm on Christmas Day 2009 and every second year thereafter; and

   (ii)with the husband from 3.00pm on Christmas Eve until 3.00pm on Christmas Day 2010 and every second year thereafter; and

   (c)such further times as agreed between the parties.

4. That the children communicate by telephone with the parent in whose care the children are not living each Tuesday and Thursday from 6.30pm until 7.00pm.

5. That changeover shall be at the children’s schools and if a non-school day commencing at the parent’s residence in whose care the children are residing and concluding at the parent’s residence in whose care the children are to reside.

6. That the husband and the wife do all things necessary to ensure that the children attend counselling:

   (a)      by a person directed by Mr F; and

   (b)if Mr F fails to nominate such counsellor within 14 days, by a person nominated by the Independent Children’s Lawyer.

7. Each parent shall comply with all written requests by any person, persons or organisation assisting L and N pursuant to these orders and including:

   (a)ensuring attendances at a appointments (unless otherwise impracticable);

   (b)being available for consultation by such person;

   (c)accepting written on-referral; and

   (d)authorising such person to communicate with educational professionals.

8. That unless the parents otherwise consent, L shall continue to attend M High School and N shall commence M High School in 2010.

9. That the appointment of the Independent Children’s Lawyer be discharged as and from 30 September 2009.

10. That the husband and the wife do all things necessary and attend the parenting orders program at Centrecare, such counselling to include the children at the discretion of the counsellor.

11. That the reports of the family consultant and Professor V together with the reasons for judgment and orders arising out of these proceedings be provided to the counsellor at Centrecare.

12. That all outstanding applications be otherwise dismissed and all proceedings removed from the list of cases awaiting a hearing.

13. That pursuant to s.65DA(2) and s.62B, 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.

14. That the reasons for these orders be published in due course.

AND THE COURT NOTES

1. The equal shared time referred to in these orders is consistent with:    

   (a)the recommendation made by the family consultant in the children’s and parents’ issues assessment report released January 2009; and

   (b)views expressed by the children and the Independent Children’s Lawyer on 21 August 2009.

2. That the husband does not consent or oppose the orders made in Orders 2 and 3 of these orders.

3. The parents acknowledge that the child L will attend T Unit for Term 4, 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10013  of 2007

MR HOBART

Applicant

And

MS HOBART

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. L and N are brothers who have been involved in a family turmoil for too long. Their parents began proceedings in the Federal Magistrates Court of Australia in November 2006 and with the transfer of the proceedings to this Court, there have been 10 appearances in less than 3 years. Today, with the wife’s consent and without opposition from the husband, I have made final orders. Those orders were promoted by the Independent Children’s Lawyer.

2. What is fundamental for the children is that their parents are going to be involved with professionals to try and overcome the problems to which I shall refer. That was certainly the approach taken by the husband throughout the proceedings.

3. Because the husband neither consented to the orders nor opposed them, I indicated to all parties that I felt it necessary to record the Court’s views about the orders. These are the reasons for making the orders.

4. By way of simple background, the husband describes himself as a pensioner/artist who is aged 55 and the wife is a bookkeeper aged just on 50.

5. The parties married in 1984 and separated in February 2006. A divorce hearing took place in August 2007 at which the application of the husband was granted.

6. L was born in January 1995; he is not far off 15 years of age.

7. N was born in March 1997 so he is 12.

8. The wife’s initial application sought that the children live with her for 4 nights per week. Other orders were sought including that each party have equal shared parental responsibility.

9. The husband’s initial position was that the children live with him all of the time but that they spend time with their mother at times to be agreed. He sought sole parental responsibility.

10. In January 2007, the parties attended before Burchardt FM and consented to an arrangement concerning the children under which they lived with the husband but spent time with their mother on very restrictive times after school.

11. The January orders made clear that there was an interim dispute and it was fixed for 12 April 2007. On that day, the wife’s time was extended to one night and one day each weekend and that the changeover occur at a contact centre. Both parties were ordered to undergo a psychiatric assessment.

12. The January orders provided for a final hearing in September 2007 but on the allocated date, the case was transferred to this Court. It seems from the file that a report by psychologist Dr H had been only just released and the parties needed time to contemplate it.

13. Dr E carried out the psychiatric assessments of the parents in 2007. Bearing in mind that Dr E was not required to assess their credibility, he none-the-less found the wife a more reliable and believable witness. Obviously, any psychiatric assessment is dependent upon the accuracy of the history so to that extent, Dr E’s statement had importance. He found the husband to have emotional and personality difficulties including that he blamed a number of people for his various dilemmas. He found the wife had no signs or symptoms of a psychiatric condition.

14. Dr E expressed concerns about the husband’s ability to care for the children. He said of the wife that whilst she had her vulnerabilities, she had the ability to learn emotionally from her mistakes and had developed insight into her difficulties.

15. Dr E’s report was filed in an affidavit on 20 August 2007. Around the same time, an affidavit was filed by the psychologist Ms H. Her recommendations were that the children should live with their mother. In respect of her view about time between the husband and the children, Dr H said that it should be during alternate weekends from Friday until Monday to reduce the parents coming into contact with one another where conflict might occur.

16. It must be said that the husband did not accept the views of Dr E or Dr H.

17. When the case came to this Court, it was listed before Senior Registrar Fitzgibbon on 25 October 2007. The importance of that date was that it was just after the various reports to which I have just referred.

18. The parties agreed that they should have equal shared parental responsibility and that the children live with each parent on a week-about basis.

19. From a litigation perspective, the case lay dormant for a year until it came before Registrar Kaur who in turn, set it down before me.

20. Family Consultant Ms S saw the parties and undertook a Children and Parents Issues Assessment. She said that L was happy with the alternating week arrangement. N described himself as a “mostly sad person” who had expressed some suicide ideation.

21. Ms S recommended that the shared timetable continue. She said the wishes of the children needed to be respected but both needed also to be involved in a mental health assessment. Ms S was comfortable with Professor V.

22. I conducted the first day of the less-adversarial trial on 23 January 2009 and the parties were not in agreement about a number of things. However, I was informed that the parties were attending Professor V.

23. Professor V is Professor of Child Psychiatry at the Royal Children’s Hospital in Melbourne. His curriculum vitae is extensive and impressive.

24. All parties asked me to adjourn the proceedings and my understanding was that the parties were looking to Professor V for some solutions to their conflict.

25. By May 2009, Professor V was still working with the parties and the final date for a conclusion of the hearing was set.

26. The husband filed his affidavit on 2 June 2009. His position was as he had originally set out. That is, he wanted the children to live with him and spend weekend time with their mother.

27. The husband maintained that the orders then in place including the sharing of parental responsibility were not in the best interests of the children. Part of the problem was the husband’s view about the need for the children to have medical issues as he saw them undertaken by professionals. Whilst the husband acknowledged he was not a doctor, he said he had researched things that gave him his conclusions.

28. In his affidavit, the husband set out the aggression shown by the boys towards each other. He referred to the fact that L had engaged in self-harm and had run away from home on a number of occasions. It was said that L had night terrors. Of N, the husband said similar things but not so much night terrors.

29. The husband said that the children did not accept reasonable boundaries and the conflict between the boys was escalating. He pointed to an incident between them in February 2009.

30. It was the husband’s position that the boys needed help.

31. There was considerable criticism of the wife’s household management and the absence of the boys from school in the time when they were living with their mother. He contrasted the diets in the two households.

32. The husband pointed out that of the two parents, he saw himself as most child-focussed.

33. The wife filed her affidavit of evidence on 26 August. Not only was there much in dispute about the facts but there were incidents of which the wife said she was unaware. She stressed there had been no self-harm, running away, extreme tantrums or injuries in her household.

34. There was little between the parties about which there was agreement.

35. The wife too said she was capable of looking after the children. Importantly, however, she said that the week-about arrangement should continue.

36. Professor V saw both children. L presented with a well developed dysthymic disorder associated with a range of anxiety difficulties including post traumatic stress disorder driving early onset conduct with severe oppositional defiant patterns of behaviour. There were a number of other problems.

37. Professor V put the problem succinctly when he said that L remained trapped in ongoing major differences of opinion between his mother and father which remained a stressor. His view was that L needed psychotherapeutic processes failing the success of which, medication was the next step.

38. Of N, Professor V said similar things. He too needed psychotherapeutic intervention but then the “catch” could be seen. Professor V said that such a process required active participation and collaboration of the parents. These parents have now the dilemma of hearing a message from a specialist who has bluntly said that failing a therapeutic approach, the answer lies in medication. I suspect a court could do little more than ask why the parties had even contemplated litigating when the experts say that the litigation is a stressor that exacerbates the problems.

39. Because the evidence was very much in conflict about what happened in each household and I was not in a position to have it tested, I can only draw conclusions based upon the less-controversial material.

40. Before looking at the issues set out in Part VII of the Act, I say that I find that on the evidence about which both parties seem to generally agree, there is a need for the children to spend significant time with both parents. I find that the evidence of Professor V is clear and powerful; it contains a strong message to the parents. I find that the continued litigation is a constant source of stress and anxiety for the children as a result of which, its continuation is unhealthy for the children. I find that the children have clear and unequivocal views about their future care and that despite their problems, I should listen to their views. I find that despite the varied criticisms by each parent of the other, the children seem to have been provided for on a daily basis well. That indicates that the parents have the necessary skills to provide for the physical needs of them. As for the other developmental needs, I am unsure having regard to the untested evidence.

41. Accordingly, with those simple findings, I turn to the various checklist questions raised by Part VII of the Act.

42. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.

43. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child.

44. Because of s 61C(3), joint parental responsibility is subject to any order of the Court and s 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

45. In this case, the parents have adopted an unusual position. The husband neither objects to orders nor consents to them but says through his lawyer that he is keen to see the professional work for the children commence.

46. Having said that, this is a matter in which I need to contemplate what is best for the children with the limited amount of information I have.

47. Section 64B(2) provides that a parenting order may deal with things such as:

    (a)the person or persons with whom a child is to live;

    (b)the time a child is to spend with another person or other persons;

    (c)      the allocation of parental responsibility for a child;

48. Section 64B(3) provides:

    a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

49. Major long-term issues are defined to be issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

    (a)      the child's education (both current and future); and

    (b)      the child's religious and cultural upbringing; and

    (c)      the child's health; and

    (d)      the child's name; and

    (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

50. When those legal problems are contemplated, it will be seen that there are serious problems between the parties unless they can begin to communicate about their children in a positive way. I can only re-iterate what Professor V said about the need for the parents to work together to control and solve these problems.

51. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:

    (1)      The objects of this Part are to ensure that the best interests of children are met by:

    (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; and

    (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

52. The Australian Parliament on behalf of our society has reflected in the law its ambition about what benefits children should receive through parental involvement in their lives. As a starting point, all children in our society should enjoy the benefits and privileges set out in Parliament’s wish list. L and N certainly deserve it.

53. Fundamental to my decision in this case is s 60CA which says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

54. In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:

    Primary considerations

    (2)      The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Additional considerations

    (3)      Additional considerations are:

    (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

    (b)the nature of the relationship of the child with:

    (i)       each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child);

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)       either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)       the capacity of:

    (i)       each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h) if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j) any family violence involving the child or a member of the child’s family;

    (k) any family violence order that applies to the child or a member of the child’s family, if:

    (i)       the order is a final order; or

    (ii)the making of the order was contested by a person;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m) any other fact or circumstance that the court thinks is relevant.

1. I am told by the Independent Children’s Lawyer that the proposed orders are supported by the views of the children. Having regard to their ages, notwithstanding all of the apparent problems, the children’s voices should be heard.

2. The evidence suggests that both boys benefit from the arrangement that has subsisted for over a year now. It is clear that whilst they have problems as described by Professor V, they are benefiting from the relationship with both parents. I therefore feel comfortable in saying that it is a meaningful relationship with both parents.

3. There is clearly a need to protect the children from exposure to the harm referred to in the section. In this case, there is no evidence upon which I could make any finding that would suggest that either parent has been derelict in their duty to protect the children.

4. All of the reports and affidavits I have read suggest that each parent brings different parenting skills to the parenting role. Each seems to have the capacity to care for the children appropriately despite what Dr E said in 2007. I draw some significant comfort from the fact that the wife pursued the joint parenting option so to that extent, she has no real concerns about the husband even though she inferred otherwise in her very recent affidavit. The husband seemed to put the blame at the feet of the wife for many of the dysfunctional problems of the children but the professional evidence would suggest otherwise.

5. Each parent espouses a role in the lives of their children for the other. I hesitate about that but if as I understand, there is common agreement that the parties will work with psychologist Mr F, there may be signs that the parties are working towards the best interests of their children.

6. It is clear also from the statements of the Independent Children’s Lawyer that the children are comfortable with the sharing arrangements and on that basis, it would be likely to upset their routines if I was to make the orders initially sought by the husband.

7. I have also taken into account the arguments about family violence but there is no tested evidence here upon which I could make any findings of fact. Accordingly, I propose to ignore the family violence issues.

8. It is critical having regard to the views of Professor V that these children have an opportunity to develop without the constant involvement of their parents in litigation. I pointed out above the numbers of appearances before courts. That is unhealthy for the children as is obvious from the view of Professor V that they find their parents’ conflict stressful. That anxiety then leads on to an exacerbation of the existing problems. The children deserve better.

9. This is a case where there ought to be final orders to end the conflict. However, I am mindful of the ongoing dispute between the parties. They will need to satisfy a court in future that there is a significant reason to litigate having regard to the impact that litigation has on children.

10. I have also considered the provisions of s 60CC (4) and (4A) and in this case, those matters do not affect the orders that I propose to make.

11. I am satisfied that the orders proposed by the wife, supported by the Independent Children’s Lawyer and not opposed by the husband are in the best interests of the children.

12. When make parenting orders, s 61DA requires that I apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This exercise needs to be undertaken before the determination of what parenting order should be otherwise made.

13. Section 61DA provides:

    Presumption of equal shared parental responsibility when making parenting orders

    (1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    (2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b) family violence.

14. The rebuttal also applies if a court is satisfied that it would not be in the best interests of the children for the presumption to be applied.

15. There is no basis for me to make any finding here about family violence and although I have reservations about the parties’ capacity to work out solutions for their children, I think they will now see the future is in their hands and the warnings of a failure on their part are dire for their children.

16. That being so, I could not support the husband’s position that he alone have the decision-making responsibility.

17. I will provide for the Independent Children’s Lawyer to provide as much information to the professionals in the lives of these children as possible.

I certify that the preceding Seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 1 September 2009