Kellar and Kellar

[2008] FamCA 766

FAMILY COURT OF AUSTRALIA

KELLAR & KELLAR [2008] FamCA 766

FAMILY LAW –  CHILDREN – With whom a child spends time – Interim Parenting orders – Parents’ inability to communicate – Elder children’s views that they are distressed by spending time with the father and by parental conflict – Meaningful relationship with father ultimately in children’s best interests – Graduation from supervised time to unsupervised time with the father pending final hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Kellar

RESPONDENT: Mr Kellar

FILE NUMBER: CAC 557 of 2008

DATE DELIVERED: 20 August 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 20 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Evans

SOLICITOR FOR THE RESPONDENT: Mr Farrar

Orders

1. On the first day of the Less Adversarial Trial, in relation to the children the following matters were identified as requiring attention at this point although not necessarily being identified as issues between the parents:

   (a)The cross-allegations of the parents requiring that there should be some psychiatric assessment of the parties.

   (b)The desirability and the practicability of the father attending an anger management course.

   (c)The desirability and practicability of the parties attending the Child Inclusive Program at Relationships Australia.

   (d)The question of what supervision, if any, the father requires in relation to the time that he spends with the children.

   (e)The question of whether or not the father might be still engaging in the use of marijuana.

   (f)The issue of whether the mother is in fact alienating the children from the father.

   (g)Whether or not the father by telephone or in person is denigrating the mother and thereby causing distress to the children.

   (h)The arrangements each of the parents will make in relation to their work when the children are with him or her.

2. In relation to the question of property, I determined that the lawyers are to resolve certain issues of valuation and I request that the case coordinator follow up the lawyers to ascertain that these matters have been resolved on or before 19 September 2008. 

3. There are questions of discovery about material relating to:

   (a)       The loan that Ms Kellar asserts she received from her parents of $3,000 and its application;

   (b)       The balance sheets and profit and loss accounts of the company of the father;

   (c)       Any tax returns of either of the parties.

4. An issue that will be determined at the finalisation is the income and earning capacity of each of the parties for the future and the effects, if any, of the father’s back injuries and his capacity to further work.

5. It is possible that the question of child support may arise before this court as a determination for departure from the existing assessment, but only if it is ascertained at the time of finalisation of other issues that it would be more appropriate and economically attractive for the parties to have the matter resolved in this court at that time rather than through the other appeal processes associated with the Child Support (Assessment) Act 1989. 

6. The following orders apply in relation to the matters raised above at this point.

7. The parties’ lawyers will arrange for the parties to attend upon either Dr M or Dr W with a view to a psychiatric assessment of each of the parties.  The terms of reference for the consultation and assessment will be agreed upon by the parties’ lawyers and settled by me in chambers as soon as possible. 

8. The cost of the consultation and preparation of the report will be paid from the proceeds of the sale of the family home.

9. Each of the parties will give such direction to the holder of the proceeds of the sale of the former family home to ensure that the last-mentioned order is carried out. 

10. The father will attend upon a pathology service and will have a urinalysis conducted with a chain of custody context to determine whether there is any residue of drugs.  This test will be carried out on or before 3 September 2008.  The cost of the test will be paid for out of the proceeds of the sale of the former family home and each of the parties will give such authorisation to the holder of the proceeds of those funds to ensure that the payment is made.

11. The father will, in accordance with arrangements apparently already made by him, attend the anger management course conducted by a behavioural therapy service commencing on 15 September 2008 and will attend upon the facilitator of that course prior to that time or at such time or times that the facilitator shall direct.  On completion of the first six weeks of the course, the father will consult with the facilitator and after such consultation if he is advised that it would be appropriate for him to agree to an extension of the course for a further six weeks he will do so. 

12. Each of the parents will do such things as may be necessary to ensure that they can participate with the children in the Child Inclusive Program conducted by the same service and will attend on such times and at such places as the facilitator of the course will recommend.  I note in this regard the course may proceed in parallel with the father’s anger management course or may need to await the completion thereof.  The parties will accept the advice of the facilitator of the Child Inclusive Program about that matter.

13. The presumption of equal shared parental responsibility will not apply on an interim basis.

14. The children R (born … September 1997), L (born … February 1999), …(born … October 2005) and F (Born … April 2007) will live with their mother.

15. The children will spend time with their father from and beginning on 21 August 2008 on a supervised basis though the relevant supervision service for two and a half hours each Monday and Thursday and on each Sunday for five hours, terminating on 11 September 2008. 

16. On and from 14 September 2008 the children will spend time on an unsupervised basis time with their father from 9am until 3pm on each Sunday until further order.

17. The children will be dropped off and picked up at McDonalds at X by each of the parents.  I note that this overrides any prohibition upon that level of contact between the parents that might have been contained in the Apprehended Violence Order obtained by Ms Kellar against Mr Kellar. 

18. Either party has liberty to restore that matter before matter for further interim orders if it should become necessary on giving the other party seven days notice.

19. The matter is scheduled for a continuation event on 24 September 2008 at 9:30am.  The parties to do not need to attend.  The lawyers may if they wish attend by telephone.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 557 of 2008

MS KELLAR

Applicant

And

MR KELLAR

Respondent

REASONS FOR JUDGMENT

1. In this matter I am being asked to make a parenting order.  Accordingly I am obliged to take account of the matters set out under the Family Law Act.  I do not propose to detail the various sections of the Act that ordinarily I would have to take into account in this matter but to highlight some of the factors that I regard as being significant in this particular case. 

2. First, this is a parenting order and as a consequence I am obliged to follow s 61DA of the Act in that I must therefore presume, subject to any alternative conclusion I can come to in accordance with the provisions of the Act, that there should be equal shared parental responsibility in relation to the children.

3. At this point this is not a determination I should make, nor is it required by the parties given the circumstances that apply.  Under s 61DA(3), one of the relevant exceptions is that when the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.   In my opinion it is not appropriate in these circumstances for such a determination to be made at this point.

4. I might say that there does not appear to be any reason why, in the relationship between the parties, major issues relating to the long term care, welfare and development of the children would not be the subject of consultation, but that is a matter for finalisation in due course.  As I do not say that the presumption should apply, I am not obliged - although I may of course take account of and consider - whether or not there should be equal shared time or substantial and significant time.

1. If I were to be obliged to make such a determination at this point it would seem to me that neither of those possibilities is appropriate in the circumstances between the parties at this point where there are so many issues unresolved.  That of course says nothing about what my determination might be in relation to the future of the children once the proceedings have come to a point of finalisation.

2. The factors I am to take account of in determining what is in the best interests of the children are set out in a number of places and s 60CC of the Act itemises these in some detail.  That is to be considered, however, in the light of the objects and principles of the Act which include the proposition that the children are entitled, as opposed to the parents being entitled, to having their parents meaningfully involved in their lives. 

3. It is also important that the children should be protected in accordance with the terms of the Act against distress, danger from exposure to family violence or other matters which may impact upon their safety.  It is not suggested in this matter that if the children were to spend time with their father they would be in any physical danger from him.  It is not suggested in this matter that if the children were with their father they would not be appropriately cared for by him on a day to day basis.  Indeed, the only evidence before me at this point contained in the reports of the supervisor, which were admitted without objection as exhibits in the proceedings, suggests that the father's care of and attention to the children when they were with him under the supervision of the relevant service was appropriate.

4. The factors that are not clear to me at this point (and this is necessarily the case in most interim proceedings) are whether the children are in fact seriously distressed by the time they spend with their father.  This may be because, as the father asserts, they are being alienated from him by their mother.  Alternatively, it may be because he is expressing to them views about their mother which they find are offensive and difficult to deal with, because it causes the children to take a position of trying to resolve conflict between their parents (which it is clearly not their responsibility to do).

5. I do not have the evidence before me at this point to resolve that particular issue.  However, it is important that in any event I should ensure the children are protected from what already appears to be (from the report of the Family Consultant Ms L) serious distress about the conflict between their parents.

6. The factors I am obliged to take into account include the views of the children as expressed and I accept that there is some difficulty about determining precisely what the views of the children are at this point, particularly the elder children.  They have reported to their mother being distressed by the concept of spending time with their father without supervision.  They have reported in similar terms, although without that qualification to Ms L.  The children have apparently refused, at the present point, to receive telephone calls from their father.  The contents of previous telephone calls have not been the subject of any consideration from the evidence of the father, although it has been the subject of indirect comment by Ms Evans.

7. I take account of the fact that the children are at this point more closely allied with their mother than they are with their father.  This, the father would say with some justification, is possibly the result of the fact that he has seen them relatively few times since the parties separated in December 2007.  However, the attachment between particularly the younger children and their mother is a factor I can reasonably take into account to say, at least at this point, that it is more important that the children should feel secure and safe with their mother and that they would not be in any way deprived of the relationship that they enjoy with her.

8. I accept that from the limited evidence I have, the children enjoy a good relationship with their father, subject only to questions of his criticism of their mother and that it is more likely than not that they enjoy the time that they spend with him.  I am concerned, however, that I have not sufficient evidence at this point to enable me to determine whether each of the parents is willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent.

9. In this regard my concerns about the mother arise only from the allegations made by the father.  There is nothing in what she said in Court this day which would lead me to conclude other than that she does have a dedication to the children's relationship with their father in the future.  So far as their father is concerned it seems to me that he is still heavily enmeshed in the grief that has arisen from the separation between the parties and to some extent this is both clouding his judgment and making him insensitive to the effects of his actions on other people.

10. In particular I find it difficult to believe in the light of the evidence I have before me, both from Ms L and otherwise, that there was only one occasion that he, in a telephone conversation with the children, made adverse references to the mother.  I simply do not accept that that is the case in the light of the evidence before me.  This suggests on his part an inability and an insensitivity to the consequences of some of his actions. 

11. This however is something that I hope will resolve with time and certainly with the help of the counselling that I have put in place by order today.  I trust he will manage to come to the realisation that the children need both their parents and this means both their parents working together, even if they are not going to be together for the future.

12. It seems to me that if the children will have a long-term separation from the father because he is not having time with the children, even on an interim basis, this would not operate to the children's benefit nor would it operate to the benefit of either parent in the long run.  While it may seem that this would not be likely to reflect upon the mother, it is possible that the children would in the circumstances blame her for the separation.  That would be inappropriate but it would certainly not operate in the children's best interests in the future.

13. There are difficulties and expense associated with the time the children spend with their father.  If they are to be supervised as the mother suggests, then this creates an expense which neither of the parties can reasonably bear at present.  The mother suggests, (and if I were to follow this course I would certainly accept this suggestion), that in the short-term supervision should be paid for out of the proceeds of the sale of the family home.

14. I am reluctant to seriously diminish the assets of the parties which are already quite limited – particularly when to do so would make it difficult for either parent to reaccommodate him or herself.  Nevertheless it may be the only practical way of proceeding.  

15. I am satisfied that each of the parents has the capacity to provide for the practical needs of the children.  I am not satisfied at this point that the father is capable of providing the appropriate emotional needs of the children for the reasons that I have given above.

16. I believe that there is still evidence on the part of the father at least, of an attitude to his responsibilities of parenthood which is more associated with his own rights rather than those of the children.  This is certainly demonstrated in some of the early material filed, although that may have been, at that point, more illustrative of the anger he felt at separation rather than anything in relation to the children. 

17. I am not satisfied that there is any family violence about which I should be concerned in relation to the children themselves and that is a factor that I take into account under the Act.

18. In consequence, while any decision I make on an interim basis must to some extent be arbitrary because there are issues that are totally unresolved, it seems to me that there should be a limited period further for supervision.  However, this should be transitionary rather than anything else and I do not see on the evidence before me that there is a need for such a transition to continue for more than a relatively short period. 

19. It seems to me that the appropriate orders would be a continuation of orders for the next three weeks in accordance with what the mother says which is that the children should spend time with their father on Mondays, Thursdays and Sundays for two and a half hours respectively during the week and five hours on the Sunday.  At the end of the three week period, the four children should spend time with their father on every second Sunday from 9 o'clock until 3 o'clock in the afternoon.  This is the period that the mother said she was satisfied that F could be separated from her and that those orders, in that period, should be unsupervised and should continue until further order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: …

Date:  9 September 2008