Hourd and Hourd

[2008] FamCA 406

FAMILY COURT OF AUSTRALIA

HOURD & HOURD [2008] FamCA 406

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Supervision

Family Law Act 1975 (Cth)

APPLICANT: MRS HOURD

RESPONDENT: MR HOURD

FILE NUMBER: SYC 6841 of 2007

DATE DELIVERED: 23 April 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: LOUGHNAN JR

HEARING DATE: 23 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Gells Lawyers

COUNSEL FOR THE RESPONDENT: Mr J Lloyd

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. The living arrangements for the children C born … June 2004 and L born … May 2006 unless the parties agree to the contrary are to be in accordance with the Parenting Plan dated 5 August 2007 a copy of which is attached to the Application for Final Orders filed 31 March 2008, save that until further order the time spent by the children with the mother is to be supervised at all times by either the maternal grandmother or maternal grandfather or such other person upon whom the parties and the Independent Children's Lawyer may agree.

2. Until further order the mother is restrained from re-locating the residence of the children when they spend time with her from her current address.

3. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children C born … June 2004 and L born … May 2006.

4. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the children.

5. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

6. Each party make available to the Legal Aid Commission of New South Wales, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

7. Leave to the parties to approach the Listing Manager for a date before the Case Management Judge in relation to the expedition of these proceedings AND the Court recommended that the matter be listed for the first day of the Less Adversarial Trial as soon as practicable.

8. The costs of the parties are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC6841 of 2007

MRS HOURD

Applicant

And

MR HOURD

Respondent

REASONS FOR JUDGMENT

1. These are interim proceedings in relation to two children, C and L, who are three years and 10 months and 23 months of age. 

2. I propose to make orders that do not make any significant change to the current arrangements, save in relation to a requirement for supervision in respect of the mother's care of the children when they are with her; facilitating what I anticipate will be an application for expedition in relation to the proceedings and ordering that the children be represented.

3. The background to the case involves a mother and father, 36 and 37 years of age respectively.  I understand the mother is in financial services by trade but works or has worked as a teacher. The father is the chief finance officer for a company.

4. The father has re-partnered. Ms D is her name. They started to live together in March of 2007. Ms D has a daughter, who stays with Ms D and the father half the time. She is eight years of age. 

5. The parents were married in September 1998, separated in August of 2006 and divorced in November of 2007.  Separation occurred when the husband left the former matrimonial home at B. He says he stayed with his parents for about five weeks and then rented accommodation in L. 

6. C and L are the parents' only children.  The parties agree about the living arrangements for the children since separation. Those arrangements have developed over time. The parties characterise the negotiation process differently, but ultimately the parties have been able to reach an accommodation reflected in a parenting plan which has or has, until recently, had the children with the father 9 am Saturday to 9 am Monday in one week; 4 pm Monday to 9 am Wednesday in the next week; and otherwise with the mother.

7. The legal position is that I am to make orders in the best interest of the children.  The Full Court has said that an appropriate approach to interim parenting proceedings is to:

   a)identify the competing proposals;

   b)identify the issues in dispute;

   c)identify any agreed or uncontested relevant facts;

   d)consider the matters in s.60CC that are relevant and, if possible, make findings about them;

   e)decide whether a presumption about equal shared parenting should apply;

   f)if the presumption applies, decide whether it should be rebutted because, in the interim proceedings it would not be in a child's best interests;

   g)if the presumption applies and is not rebutted, consider making an order that a child spend equal time with the parents, unless that is contrary to a child's best interests as a result of the matters in s.60CC, or is otherwise impracticable;

   h)if the Court does that and decides not to make an order then to consider, with a view to ordering substantial and significant time, and that is defined, unless that is contrary to a child's best interests as a result of the matters in s.60CC or it is impracticable;

   i)if neither of those things is considered to be in the child's interest, then make an order that is in the child's best interests, having regard to s.60CC.  Even then I am to consider both equal and significant time.

8. The parties' proposals have been a moveable feast. Ultimately, for the purposes of today and only for a relatively short period, the father proposed that the children live with the parties three days about, on condition that the mother's time is supervised by either of her parents, and on the basis that there is an injunction which prevents the mother from relocating to Brisbane, Queensland.  The mother's proposal for the purposes of today is to leave things as they are.

9. The key matter in dispute relates to the mother's capacity to adequately parent the children and, I guess from the father's point of view, why the presumption that leads to the consideration of equal time, should not be implemented. 

10. There are a raft of factual issues. The mother says the father has not been physically available for the children for much of the time since separation.  She says that her understanding is that the father was away from Sydney for 63 nights in the 12 months leading up to 9 March 2008, and makes some extensive reference to the interference with the arrangements that the parties have put in place, through the father's work.  In a backhand sort of way, the father seems to concede that, saying that the mother was not willing to compromise when there were occasionally work arrangements that frustrated his capacity to attend. That is an issue I cannot get to the bottom of today.

11. There is an issue, in the true sense, I think, as to the attachments of the children.  There is an issue, in the true sense, in the words of the consultant today, in relation to the extent of the parties' emotional availability to the children. That is not something that I am going to be able to get to the bottom of today. 

12. Section 60CC is the legislative provision that has a checklist of things by which one can make an assessment about what is in the best interests of a child.  It refers to primary and additional considerations: primary considerations being the benefit to a child of having a meaningful relationship with both parents and, secondly, the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

13. The additional considerations are:

    a)views of the children;

    b)the nature of the relationship of the children with each of the parents and with other people, including, specifically, grandparents;

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

    d)the likely effect of any changes in a child's circumstances, including the likely effect on a child of separation from either parent or another child or another person including, again, a grandparent or relative with whom the child has been living;

    e)practical difficulty and expense of a child spending time with or communicating with a parent - not relevant here;

    f)the capacity of each of the child's parents and of other people, including a grandparent or relative, to provide for the needs of a child, including emotional and intellectual needs, is very important here;

    g)the maturity, sex, lifestyle, background of the children and of the parents.  The critical thing here is that the children are very young;

    h)relevantly, the attitude to the children and the responsibilities of parenthood demonstrated by each of the child's parents;

    i)any family violence or family violence order that applies;

    They are the matters that the legislature has fixed as indicators of what would be in the best interests of a child. 

14. In these proceedings there is an important issue about the benefit of the children having a meaningful relationship with both of the parents.  There is no evidence from any independent source and little evidence about the children at all in the affidavits, so it is not possible to do more than speculate about the nature of the relationship between the children and either parent.

15. It is not a significant aspect of the case that there is a need to protect a child from physical or psychological harm that was caused by a child being subjected or exposed to abuse, neglect or family violence.  The facts of the case raise the potential for the children to have been exposed to some psychological harm, but that is not what this criteria goes to. 

16. The children are too young to express a view. 

17. As to the nature of their relationships with the parents, there is little evidence about that.  The parties' arrangements suggest that they each think that there has been a meaningful, loving, relationship between the children and the other parent.  In circumstances where they do not enjoy a good relationship, they have worked very hard to make sure that the children have had time with the other parent.  

18. As to the extent of their willingness and ability to facilitate time: that is put in issue to some extent but they have in fact facilitated such time. 

19. As to the likely effect of any changes in the child's circumstances, including the effect of separation from either parent or another child or person: very much in issue in my mind.  This is an unusual case in that the parties had not seen a Family Consultant until yesterday.  They saw Ms K yesterday and she gave some evidence today. That is a bit unusual. Ms K was not able to express an opinion on this point. She hasn't had an opportunity to observe the parents, either of them, with the children. She is not in a position to say what the effect might be of a change in the time that the children have with the parents. In addition Ms K mentioned a related issue that has arisen because of a suicide attempt by the mother earlier this year. That goes to the impact on the mother of a change in the arrangements; the impact of that on her parenting capacity, therefore the impact of that on the children.

20. The capacity of each of the parents: very much in issue.  In very candid material from the mother, she sets out the circumstances of her distress at the separation; her distress in relation to the negotiations that have taken place between the parties; her distress at what she saw was a move on the security of her occupation of the B property, which could be threatened by the possibility of property proceedings; her self-harm attempt; the fact as a result she was hospitalised through some significant part of late January and early February.

21. We do not have any independent assessment about the mother's capacity. Her treating psychiatrist has given her something like a reference, which is not terribly helpful.  He was asked to give his opinion about the mother's capacity -  "Our client's ability to care for her two children", and he came up with:

    From her accounts and my clinical impression she is a caring and devoted mother.

    He chose not to answer the question.  His involvement in the case is as a treating specialist, not an independent forensic expert in relation to the ultimate issues or the key issues in the case. He, like Ms K, and like everybody else, has been caught very early in the proceedings. Of course, there is a conflict of interest for him. I mean that in a nice way - in that he has responsibility for the supervision of the mother's ongoing improved psychiatric health and it may be that the way he approached the question is coloured by that fact. It is also the fact that he has had no opportunity to observe the mother with the children or either of them.

22. The children are young, as I say, and I do not think there is anything else that is significant in s.60CC.

23. The legislature goes into some detail about how one looks at whether there should be equal time or substantial and significant time.  Starting a bit earlier, neither of the parties asks for any order about decision making, so neither of the parties says there should be an order for equal shared parental responsibility.  That does not end the matter.  I have an independent obligation to look at it, but I do not think it is appropriate to make that decision today. Thus, in my view, the presumption does not apply in these interim proceedings at a very interim stage. It is not necessary to make a decision about it and there are issues, not least of which is the mother's capacity, that will be very important in making that decision.

24. I am still to consider substantial and significant time and equal shared time.  In relation to equal shared time, the legislation says for the purposes of ss.1 and 2 of s.65DAA, whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child's parents, the Court must have regard to:

    a)how far apart the parents live from each other;

    b)the parents current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents;

    c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in the implementation of an arrangement of that kind; and

    d)the impact that an arrangement of that kind would have on the child; and

    e)such other matters as the Court considers relevant.

25. Ms K did a terrific job, in my view.  She saw the parties yesterday.  The matter came on in such a way that she did not have the normal opportunity to read the file. Therefore she did not know the background facts that the parties were relying on, even to the extent that she is unaware that there is conflict about various facts. She saw the parties and I think she said that she did not even read the file after she saw them. She gave some evidence today and was asked to give her opinion about various things. 

26. All of this arose because advice was given to the father and counsel for the father heard something from the consultant that suggested to him, that there was urgent need to consider the arrangements for the children. At that point the mother was pressing her application to relocate the children to Queensland. 

27. The facts, as then understood, were that her supervision arrangements through her parents would be terminated on 16 May this year. Ms K did not object to counsel characterising what happened yesterday as her being ‘alarmed’. Not that I would doubt the learned counsel for the father but there is support for his contention that the family consultant saw some things that gave her real concern about the arrangements in the medium term. 

28. Ms K was asked to tease that out today and I think a fair way of characterising it would be that she said she was very worried by the prospect that the mother would not have supervision after the middle of May. She had residual concerns, even with that supervision, and they arose, from her observations of the mother.  She said that the mother presented with flat effect; made no eye contact with her; had difficulty even walking from the waiting room into the room that she was going to see the consultant in. Ms K found the history of concern in itself, tracing emotional reaction to the separation, emotional reaction to what the mother perceived as a threat to the security of her home; the fact of the hospitalisation; the fact of once a week consultation with a psychiatrist, ongoing and twice a week with a psychologist. 

29. Ms K said that given the recent suicide attempt and her responsibilities for day to day care of the children, she queried the mother's ability to be attuned to the children; to be emotionally available to the children.  She noted the simple fact of a physical absence of five weeks or so and was concerned by those things. 

30. The problem for me is I need to be comfortable that I am making an improvement if I make an order. These are not unremarkable factual circumstances. Normally you might say, all other things being equal, we will acknowledge the signposts that the legislation puts out for more involvement for parents. 

31. This is a very unusual case.  The children are at a very vulnerable age.  There have been no soundings taken in relation to the children's attachment; in relation to the capacity of the parents with the children and so on.  To his credit, when he was faced with the same issues, the father had the same dilemma.  "Following being informed about the mother's suicide attempt I was extremely upset and concerned for both the mother and the children."  He goes on to say that he immediately contacted the maternal grandfather; spoke to him at length.  He was given some assurances about the mother's wellbeing and healing and the children's need to continue under the parenting plan, despite the fact that the mother was not operating under the provisions of the plan; (that is a reference to a provision in the plan that says if either of the parties is not physically available for a significant period to care for a child, they are to give the other party first refusal). 

32. "The maternal grandfather," the father goes on, "gave me his assurance that either he or the maternal grandmother would be with the children at all times and the children would be safe.  I reluctantly agreed to the continuance of the parenting plan."  He later says: "The maternal grandmother assured me that once the mother was discharged from […] Clinic that either she or the maternal grandfather would be with the children at all times.  I was uncertain as to what to do, as I did not want to further unhinge the mother."  Not very well expressed but I think we know what he means.  "I consented to the parenting plan remaining in place but requested that I be afforded every opportunity to care for the children whilst the mother receives treatment."  He goes on to say that that has not happened and refers to some problems in relation to advice about medical conditions for the children and some other concerns. 

33. What I am trying to say, is that this is not a simple matter.  The father knows the mother well.  He knows and loves the children and the bare facts that we are presented with today gave him pause and it was not his initial step to significantly change the arrangements. 

34. Assuming for the moment that the main concern here is the mother's capacity, that will not be addressed by having the children spend a bit more time with the father. The orders proposed by the father do not address that issue.  They would address a situation that Ms K referred to whereby she opines that, all other things being equal, there would be scope for the father to spend more time with the children. Before she was asked about equal time she was asked about more time and she said words to the effect: "It could be all day Monday and all day Wednesday." I took her to mean that the Saturday to Monday 9 am arrangement could continue until the end of Monday and that the Monday to 9 am Wednesday arrangement in the alternate week could be extended to all day Wednesday.  It is true that she agreed with counsel when it was put to her that it would be appropriate, for the children to have equal time.  She rejected the proposition of week about, I think because of the age of the children, but did countenance the possibility of three days about. 

1. That is the ultimate issue for the purposes of today and Ms K is not the person making the decision about the ultimate issue.  I think sometimes we take a cargo cult mentality to other people's professions, and it is trite to say that there are complexities in Ms K’s profession, as there are in any other, and it is not a case of just taking a formulaic approach to young children and saying, "Well, that is what's best." 

2. So it boils down to this:  I am not comfortable, in the circumstances, whereby the legal proceedings have come on very quickly and we do not have any evidence except for the absence of adverse evidence about critical issues, issues that are heightened in the circumstances of this case.  I do not know what the effect on the children would be if they spent more time away from the mother.  Now that might be good or it might be bad but I am not permitted, I do not think, just to roll the dice.  I know that, even with the fact of a very alarming event in the mother's life, the father was able to countenance an arrangement which was very different to the thrust of the parenting plan; an arrangement whereby the mother's involvement with the children was circumscribed to the extent that either of her parents were going to be supervising the arrangement and he knows a lot more about the circumstances than I do. It might be that it would be good for the father to have more time with the children, but I am just not in a position to say with enough confidence, that that is the case today. However, my orders should not be in place for very long. 

3. The matter should get back onto the track which is intended for parenting cases, whereby it gets before a judge fairly quickly; that Ms K and the parties are present; a representative for the children is available to assist in the decision about the identification of an expert, particularly in relation to the mother; and a decision can be made, hopefully in a collaborative way, without the rather destructive processes that the adversarial system that unfortunately operates more in this list than under the less adversarial system.

4. It is not for me to criticise or for anybody else to criticise the parents.  They have got a lot on their plate: there are two very vulnerable young children and very serious issues. It is not for me to say that the parents have not behaved entirely appropriately.  The parenting plan fell down and there is no excuse, with respect, for the mother and her parents not to adhere to the spirit of that agreement.  It was wrong that the father was not told about the mother's hospitalisation.  It was wrong that the father was not offered some more time with the children when the mother was not available. In a situation like this, if the maternal grandparents are going to stand in the shoes of the mother, they become responsible for giving effect to that arrangement. Hard as it is, that is something they need to take on board.  Having said that, it is a very generous thing that grandparents would step in in these circumstances.

   RECORDED:  NOT TRANSCRIBED

   ORDERS DELIVERED

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate: 

Date:  12 June 2008