Keightley and Keightley (No 2)

[2010] FamCA 1052

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY (NO. 2) [2010] FamCA 1052

FAMILY LAW – CHILDREN – interim orders – where there are concerns about the parties’ inability to make decisions concerning their children’s care – where the proceedings have been longstanding – best interests – orders that the alternative handover location be at the police station

Family Law Act 1975 (Cth) ss 60CC & 65DAA

APPLICANT: Ms Keightley

RESPONDENT: Mr Keightley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

Orders

UPON NOTING

1. The father is to serve the mother with a copy of his unsealed affidavit filed on 15 November 2010 at the close of the hearing today.

2. The father considers the school holiday time should be organised by the child P telephoning his mother first and advising if the mother wants the child to spend time with her.

3. That the child A will attend D High School in 2011 (the husband has not consented to that arrangement but it has been organised by the wife after consultations took place with Mr R and it would appear that is an obvious placement for him bearing in mind the background to the matter) and the child P will continue to attend at the F Primary School.

4. The Contravention applications are already listed to 6, 7 and 8 December 2010 commencing at 10.00 am before the Honourable Justice Dawe.

IT IS ORDERED THAT

1. The time is extended for the mother to file and serve her affidavit in relation to her Contravention application and in response to the father’s Contravention application (if she so desires) and any other affidavit upon which she seeks to rely to 4.00 pm on Monday 22 November 2010.

2. Handovers (which do not take place at school) take place inside the S Police Station with the child P being delivered into the S Police Station and collected from inside the S Police Station PROVIDED THAT both parents are not inside the police station at the same time.

3. During the period of the adjournment paragraphs 3 and 5 of the order made on 1 November 2010 are continued.

4. Pursuant to Section 62G[2] of the Family Law Act 1975 THAT Family Consultant, Dr L, provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children A born … May 1997 and P born … April 2000 after involving further detailed interviews with each of the parents, significant persons, consultation with Mr R, consideration of all of the papers and if thought appropriate by the Family Consultant, an observation of interaction of each of the children with each of the parties AND IT IS DIRECTED that the report include not only the general matters in relation to the children but specifically in relation to the orders which apply to both of the children, so far as where they live and with whom they spend time during school term and outside of school term.

5. IT IS REQUESTED the Independent Children’s Lawyer attend the Contravention Hearing at 2.15 pm on Wednesday 8 December 2010 for any submissions in relation to the Contraventions or further directions for preparation of the final hearing of the matter.

6. The mother’s Application in a Case filed on 12 October 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4573 of 2008

MS KEIGHTLEY

Applicant

And

MR KEIGHTLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the interim hearing of a matter which comes before the Court primarily concerning the welfare of the youngest child, P, but also concerning the welfare of the oldest child, A. 

2. The Court accepts that the concerns expressed by the Independent Children's Lawyer are serious and significant concerns.  Those concerns expressed by the Independent Children's Lawyer are that neither the mother nor father are capable of understanding the difficulties they have created for both of the children by their ongoing inability to agree upon very simple straightforward matters which usually can be agreed upon by parents, notwithstanding that those parents may be separated, divorced or involved in proceedings in this Court.

3. This is a stark example of the parents lacking the capacity to agree about what is in the best interests of their children, and to behave in a way which promotes their best interests.  The parties have been litigating for years and the children have been subjected to considerable number of interviews and stressful situations, not the least of which are allegations that the children have observed appalling behaviour between their parents.

4. Consent Orders were made on 7 December 2009, which provided for the parties to have joint equal parental responsibility for both children;  that the eldest child live with the father, subject to the child's wishes on particular occasions, and otherwise live with the mother.  The child, P, was to live with the mother on alternate weekends and other particular occasions, and live with the father at other times.

5. There was a long detailed order made in relation to other specific matters.  However, it was only a short time after the making of that Consent Order that litigation again commenced in this Court.  There have been contravention proceedings and applications to change the orders, so far as they relate to the best interests of the children. There are ongoing property settlement proceedings.

6. The Court is required to take into account the provisions of Part VII and the particular factors contained therein, in particular section 65DAA, the provisions of section 60CC, and all of those provisions to which the Court is directed when determining what is in the best interests of the children, which is the paramount consideration.

7. It appears that even the most simple matters, such as where handovers should take place or what arrangements should be made for the children to spend time with parents during school holidays, cannot be agreed.  The Court must therefore determine on an interim basis what is in the best interests of the children.

8. Both parties appear before me unrepresented, although the father again refers to his intention to obtain representation by a lawyer.  They both filed significant affidavit material which contained not only facts, but opinion and argument.  They are unable to agree even some of the more basic facts, let alone what is best for the children.

9. Many of the outstanding issues will have to be determined after a final hearing when the contravention proceedings have been concluded. 

10. I am not proposing to make any order in relation to debts referred to by the father, as he is unable to provide, at this stage, any specific detail as to the debts, why they should be considered joint debts and the specifics of the amounts outstanding.

11. In relation to the handover for P (when it does not take place at a school) the father proposes that it take place at the S Police Station, and the mother proposes that it take place at Hungry Jack's. 

12. The S Police Station has the advantage of being in an area where the risk of disagreement or altercation between the parties is significantly reduced because it is a police station.  It has a disadvantage of the distance required for travel.  Hungry Jack's has an advantage that it is easier and closer for the mother to go with the child, but has a disadvantage of being a public place which does not have the same immediate impact as a police station.

13. The orders that I made on the last occasion provided for each alternate weekend time for the mother take place by the mother collecting the child from the conclusion of school on a Friday, if that is a school day, and the father collecting P from the conclusion of school on Monday, if that is a school day. 

14. I propose to make it clear that those orders are continued, and it is only the occasions when P cannot be delivered to or collected from school because school does not sit on that day that it would be necessary to have handover at the S Police Station.

15. In relation to the property settlement order made on 1 November 2010, the interim injunctions are continued.

16. In relation to the question of who should prepare the Family Report, I have submissions from the father that Ms U, who prepared an earlier report, is a social worker, is his preference.  

17. The Independent Children's Lawyer and the mother support a further Family Report being prepared by a Dr L.  Dr L is a psychologist and is therefore a more appropriate person to prepare a report in this matter, which involves significant difficulties as far as the parents are concerned in communicating with each other, and will involve significant issues of the psychological welfare of the children.

18. The complaint of the father is that he did not establish an appropriate relationship with Dr L.  He does not want her to compile a further report because of the attitude and the errors he says she made in making the assessment prepared for the Court.  That assessment, prepared on 22 June 2009, was a Children and Parents Issues Assessment and is not to be confused with a more detailed and thorough Family Consultant's Report which is recommended by Dr L to be prepared.  She also recommends further consultation with Mr R, who has been assisting or attempting to assist the parties in resolving this matter.

19. Taking into account, therefore, the qualifications of Dr L and the basis upon which the Child and Family Issues Assessment was prepared and the differences that will occur when there is a full Family Report being prepared I order that Dr L prepare the Family Report.

20. The mother makes an application today for the time spent with P to be extended to alternate weeks during school holidays rather than alternate weekends, as is currently in the Consent Order.  It is not appropriate on the information currently available to the Court to make interim orders substantially varying the final orders which were made by consent as recently as December 2009, particularly bearing in mind the issues which are in dispute in relation to the other matters which might be considered to be in the best interests of each of the children. 

21. That matter may be further considered when Dr L has had an opportunity to prepare her report.  In particular I direct that her report include not only the general matters in relation to the children, but specifically in relation to the orders which apply to both of the children so far as where they live, with whom they spend time during school term and outside of school term.

22. In relation to the question of children's schooling, I will have it simply noted that it is agreed that A will attend D High School in 2011.  The husband has not consented to that arrangement, but it has been organised by the wife after consultations took place with Mr R.  It would appear that that is the obvious placement for him, bearing in mind the background to the matter.  It is also noted that P will continue at the F Primary School.

23. In relation to the proposals for Christmas Day, there is in existence the Consent Order, and on an interim basis, I do not propose to alter the final Consent Order made in December 2009, unless further evidence is provided which would indicate that a change is in the best interests of the children.

24. Similarly in relation to the application that the father be required to place P in the care of the mother, if he is unable to provide appropriate care for P because the father is absent from his home, the State or the country for a period of time, the father has indicated that if the mother is able to care for P during that time he would make that placement, although he has also made contradictory remarks suggesting that he would prefer to place P with other relatives. 

25. These are matters which also indicate the parents’ inability to carry out their responsibilities of communicating in a civil fashion about what is in the best interests of their children.  Until all of the factors concerning the best interests of the children are determined, I am not proposing to make a specific order at this stage. 

26. However, the father is clearly on notice that if he fails to consider the mother as an option for caring for P when he is unable to do so, his attitude and steps he takes in that regard may well be a factor that the Court considers in the future when determining whether he has indicated a willingness to continue to encourage a meaningful relationship between P and the mother.

27. The father was also seeking that I discharge that part of the order in relation to the eldest child, which removes the requirement that the arrangements be in accordance with A’s wishes.  Again, that is not a matter which should be considered on an interim basis but should await the determination of the various factors when the evidence has been heard and tested.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 November 2010.

Associate: 

Date:  24 November 2010