Holden and Holden

[2011] FamCA 842

FAMILY COURT OF AUSTRALIA

HOLDEN & HOLDEN [2011] FamCA 842

FAMILY LAW – PARENTING – children to live with mother – father’s contact time – by consent father to provide counsellor’s report  on drug and alcohol misuse to mother’s solicitors.
FAMILY LAW – PROPERTY – the net proceeds of the sale of property to be placed in an interest bearing trust account with the wife’s solicitors.

Family Law Act 1975 (Cth)

APPLICANT: Mr Holden

RESPONDENT: Ms Holden

FILE NUMBER: MLC 7355 of 2011

DATE DELIVERED: 4 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lynch

SOLICITOR FOR THE APPLICANT: Peter Lynch

COUNSEL FOR THE RESPONDENT: Ms Rodriguez

SOLICITOR FOR THE RESPONDENT: Rigoli Lawyer

Orders

1. That all extant applications for final orders are transferred for hearing in the Federal Magistrates Court of Australia on a date to be fixed.

2. That BY CONSENT, until further order, the children B born … 1997, C born … 2001 and D born … 2001 live with the wife.

3. That BY THE COURT, until further order, the children spend time with the husband:

   (a)    each Wednesday from 4.00pm until 7.00pm commencing on 19 October 2011; and

   (b)    each alternate Saturday from 10.00am to 5.00pm commencing on 15 October 2011.

4. That the for the purposes of paragraph 3 hereof, the husband’s time shall be subject to the following:

   (a)     the first Wednesday and the first Saturday shall occur with a representative from E Family Services being in substantial attendance at the expense of the husband; and

   (b)    the first Saturday namely 19 October 2011 shall be from 10.00am until 2.00pm.

5. That for the purposes of these orders, the changeover of the children shall be at the McDonald’s Restaurant at Suburb F or otherwise as agreed.

6. That BY CONSENT, without admitting the necessity for this order, no later than 7 days prior to the next hearing (noting that it will be in the Federal Magistrates Court of Australia) the father shall provide to the solicitors for the wife a report from his treating counsellor Mr G which report shall deal with any alleged alcohol misuse and treatment (if any) in respect of him.

7. That BY CONSENT the husband and the wife undertake and provide copies of supervised drug screens within 48 days of a request by the other party’s solicitor (or, if ultimately appointed, the Independent Children’s Lawyer).

8. That the husband and the wife be restrained from consuming alcohol 24 hours prior to the children being in their care.

9. That the husband and wife be restrained from:

   (a)    discussing these proceedings to or in the presence of the children; and

   (b)    denigrating the other parent to or in the presence of the children.

10. That the net proceeds of the sale of the property at H Road, Suburb I be placed in an interest bearing trust account with the wife’s solicitors Rigoli Lawyers. 

BY THE COURT

1. That pursuant to Section 68L(2) the Family Law Act 1975 the children B born … 1997, C born … 2001 and D born … 2001 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

2. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon

4. That BY CONSENT the parties undertake and complete a post-separation parenting course.

5. That all extant interim applications be otherwise dismissed.

6. 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.

AND THE COURT NOTES

A.That these proceedings have been transferred at the request of the parties on the basis that the primary issue outstanding between them is a residence dispute concerning the three children and they are content to say that the matter should be heard in that court.

B.During the interim periods of contact referred to in these orders, a person known as “Mr J” who is a relative of the wife may be present providing the husband and Mr J come to an amicable arrangement about that.

NOTED that publication of this judgment under the pseudonym Holden & Holden 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 MELBOURNE

FILE NUMBER: MLC 7355 of 2011

Mr Holden

Applicant

And

Ms Holden

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Holden initially at a time in August 2011 when he was not represented by lawyers.  His application was subsequently amended by the filing of a further application on 29 September.  Mrs Holden is the respondent to the proceedings, and she filed a response on 16 September 2011.  This is a marriage of some considerable length.  There are three children:  B, who is about to turn 14 in a few days time and twins C and D who turn 10 tomorrow.  On an interim basis there is no dispute that the three children will live with their mother, and the substantive application of the husband is that in the long run, he seeks that the children live with him.

2. It does take much imagination to understand how that live application impacts upon the parties whilst they are waiting – let alone the children – whilst they are waiting for an ultimate determination. 

3. I can encourage the parties to try and think about the damage they are doing to their children in terms of a long-term future.  There is nothing more sensible for children in a separated family than to have a routine where not only they know exactly where they are going and what they are doing, but that their parents are civilised towards each other.  That certainly does not seem to be the case at the moment.

4. The issues in relation to the parenting matter are still not all that significant, notwithstanding the parties might think otherwise. 

5. That issue and the very modest issue associated with the property dispute is a case that should be heard in the Federal Magistrates Court and I propose to transfer it there. 

6. I turn then to the interim parenting matters.  Mr Lynch gave me a set of minutes which are orders proposed by Mr Holden, many if not most of which are not disputed by Mrs Holden. 

7. The dispute was originally about having the time between the husband and the three children supervised.  There is a sensible concession by the wife that it really ought to be substantial attendance rather than supervision.  Substantial attendance is not for the protection of the children so much as to give them comfort that they are about to be reintroduced to the father that they have known all their life and of whom, according to the wife, they have a very poor view.

8. Whilst the husband says that view has been orchestrated by the wife, time will tell.  The children need an opportunity to share in the lives of both of their parents.  It is the right of a child to share in both parents’ lives, subject to the protection of them from harm.  The wife’s case here is that the reintroduction program ought to be much slower than the immediate reintroduction that the husband seeks.

9. The husband has not seen them since June.  For me to delay the start even by a further month has all sorts of potential problems:  the first is that the children undoubtedly know that their parents are in court today and for them to be told that there are no opportunities to see their father until another month may very well mean that they take the view that they – or their mother has had a victory in some way.  The children in this case need to be told by both of their parents that they are valued by their parents and things are going to change now that their parents have permanently separated.

10. These children need as much time as possible with their father.  The husband’s position is that after this reintroduction program he ought to have time with them every Saturday from 10 o’clock until 5 o’clock.  That is not a sensible proposal because the children have lives to lead and are all entering into that teenage period.  Both parents will understand that they have a very small window of opportunity to develop a decent relationship with these children before they start to vote with their feet.

11. I have a voluminous affidavit by the wife in which she makes very significant allegations against her husband.  I have an affidavit by the husband in which he denies every one of those issues.  The parties therefore put their credit in issue and at trial they will no doubt have to face the fact that one of them is not telling the truth.  The truthfulness of a witness can sometimes affect how the Court views the outcome of a parenting case.

12. It does so because the Court has to look at which of the two parents provides the most child focused proposal for the future.  If someone is found to be a liar then it is likely that the Court will take the view that they are not parent-child focused.  The husband is seeking every Wednesday from 4 o’clock, but the parties could not even agree on the starting date.  The wife’s position is that the she wanted 5 o’clock to 7 o’clock because the children have sporting actvities.  Her position is that the husband cannot do that because he has been banned from the sports place.

13. No doubt in the fullness of time all of those issues will become clear.  4 o’clock to 7 o’clock if the husband has not been banned will enable him to participate in activities that his children have every day of the week.  That is what parenting is all about. 

14. The husband sought alternate Saturdays when the E Family Services could be present for the first day.  He sought it start on 15 October.  The wife opposed that because there are a variety of activities over the ensuing weekends in October.  She said it should start in November.  November is too far away.

15. The relationship between a parent and a child is far more important than things such as slumber parties and birthday parties, including birthday parties with family members.  Clearly children have a right to participate in those sorts of things but they also have a long-term right to have a reasonable relationship with their parents.

16. In this case that the husband will need to conscious of the fact that the children have those desires and needs, and he will have to work around them as best he can.  I have been told, for example, that there is a slumber party at 3 o’clock onwards on 15 October for B.  B is a 14-year-old girl and no doubt it will be a very important occasion for her.  If the husband does not assuage her feelings he will face problems.  This is really about both parents pulling in the one direction and convincing their children that the other parent has a significant role in their lives in the future, rather than what I have seen to date which is nothing short of a criticism of the other parent.

17. I have seen very little evidence by either parent of complimenting the other parent for the roles that each of them has played up until now.  This is an opportunity for the parents to work out what they are going to do for these children in the future. 

18. Section 60CA of the Family Law Act requires that a Court only make an order that is in the best interests of children. This is a case where the Court will gain very little assistance from the factors set out in section 60CC of the Act which guides what is in the best interests of these children. I have no understanding in this case just how good these parents are. I have no understanding of what their capacity is as a parent.

19. All of the matters set out in section 60CC do not assist me to work out what sort of interim arrangements should be made.  What is clear is that up until very recently the father was having a role in these children’s lives and it has come to an abrupt halt.  The father’s position is that happened because the mother had an intervention order made against her.  The times proposed by the husband are quite sensible in the circumstances, save that I do not think in the interim period every Saturday ought to be the time that the husband spends.

20. The hours that the husband has suggested are sensible, and if in fact the children have obligations during those periods of time he will no doubt participate in those activities as all good parents should.  I am satisfied in these circumstances that the other arrangements that have been proposed and agreed between the parties are sensible in the circumstances.  I propose to make orders in the terms as discussed.

RECORDED  :  NOT TRANSCRIBED

1. The Saturday regime will commence on 15 October.  On that particular day it will be 10 until 2.  Every other alternate Saturday thereafter is from 10 o’clock until 5 o’clock.  On the first period only Ms E is to be present.  I have no intention of making any orders beyond that Saturday, but if Mr J is there and he and the husband get along all right, it logical that he is present.  In respect of the Wednesday, the first Wednesday will be 19 October.  It will be from 4 o’clock to 7 o’clock.  It will be every Wednesday thereafter. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 October 2011.

Associate: 

Date:  3 November 2011