Kellar & Kellar

[2009] FamCA 213

FAMILY COURT OF AUSTRALIA

KELLAR & KELLAR [2009] FamCA 213

FAMILY LAW – CHILDREN – best interests – interim orders – with whom a child spends time – views of children yet to be considered – whether child will benefit from meaningful relationship with a parent

FAMILY LAW – EVIDENCE – Expert evidence yet to be tested – views of children yet to be considered regarding final parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Kellar

RESPONDENT: Mr Kellar

FILE NUMBER: CAC 557 of 2008

DATE DELIVERED: 18 March 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 18 March 2009

REPRESENTATION

COUNSEL/SOLICITOR FOR THE

APPLICANT:

Mrs Evans

COUNSEL/SOLICITOR FOR THE

RESPONDENT:

Mr Bak

Orders

IT IS FURTHER ORDERED UNTIL FURTHER ORDER:

1. That this matter be scheduled for a finalisation of hearing on 1, 2 and if necessary, 3 June 2009, before me.

2. That the parents will finalise, through their lawyers, the list of property and assets and liabilities identifying with whom each of the assets is on or before 4.00 pm on 3 April 2009.

3. I further order that Family Consultant Ms L make arrangements to interview or see the children as close as is reasonably practicable to the finalisation of this matter to determine what their views may be about the further time that they may spend with their father thereafter.  Ms L may, if she wishes, interview both parents but is not obliged to do so.

4. I further order that, until further order, the arrangements whereby the children spend time with their father will be as follows:

   (a)       As and from 27 March 2009 and on each alternate weekend thereafter:

   (i)The girls R and L will spend time with their father from after school on the Friday until 5 pm on the following Sunday. 

   (ii)The boys H and F will spend time with their father from 9.00 am to 5.00 pm on each Saturday and Sunday when the girls are with their father.

5. I further order that the children will communicate with their father by their father's telephoning them on the Friday when the girls are not with him at 5.00 pm and the mother will make the children available and will facilitate the children talking to their father.

6. I further order the parties will continue and complete the Child Inclusive Program that they have already begun.

7. I further order the girls will be collected by their father from school on the Friday on which they spend time with him.

8. And other handovers will occur at McDonald's in X, both for the boys and for the girls.

9. I further order that, after the completion of two weekends in which the time with the children has taken place in accordance with these orders, either or both parents may arrange for the matter to be re-listed to vary the orders to provide more time, if it is appropriate to do so, or, for that matter, less time, if it is appropriate to do so, pending the finalisation of the hearing between the parties.

10. I further order each of the parties will file an affidavit dealing with the issues as identified by this Court in relation to children matters on or before 4.00 pm on Friday, 8 May 2009.

11. I further order each of the parties will file a financial statement on or before 4.00 pm on 8 May 2009.

12. I further order that each of the parties' lawyers will advise Dr Mof the finalisation dates for this matter and either or both will notify him on or before noon on 31 March 2009 about whether they require his attendance for cross‑examination.  Unless I make an order to the contrary subsequently, his attendance by telephone will be acceptable to all.

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, the determination I am being asked to make today relates to the steps that should be taken to provide for the children to have time with their father pending final orders or orders that are intended to operate indefinitely after the finalisation of matters in dispute between the parties.

2. It is suggested by the father that the children should move immediately from quite limited time with him into circumstances where all four children are with him from Thursday after school in each alternate week until the following Monday morning. 

3. The mother, for her part, seeks that the process be much more restrictive in that the girls, who have indicated to the mother they want to spend time with their father, should spend essentially Friday night and all of Saturday with their father and some time after school on Wednesdays.

4. The arguments at this stage are relatively pragmatic.  The mother says the children have not had much time with their father and the father responds by saying that was not his wish but the mother’s wish and that there is no reason why they should not spend time with him.

5. For my part, my determination must be made in the best interests of the children.  It must be made taking into account the fact that these are interim proceedings and the presumption that is contained in the Family Law Act 1975 (Cth) under s 61DA is not appropriately applied in this matter if for no other reason than the only available evidence of Dr M suggests that the mother should be the primary carer. I accept that this is untested evidence at this moment.

6. Leaving that to one side, Dr M’s suggestion in his most recent report was that, subject to the father's physical ability to do so, he should spend significant time with the children.  That is a matter I also take into account, pending a finalisation of the matters in issue between the parents.

7. I also take account of the fact that, notwithstanding the reluctance on the part of the mother, she is prepared to encourage the children towards a relationship with their father.  I accept for these purposes, that the father has given an oral indication on oath, that he will not discuss the proceedings with the children and will not discuss the arrangements that are to be made for the children, particularly in terms of disparaging the children's mother.  The father is not to have such discussions.

8. The mother says that the father has not had the opportunity to spend appropriate time with the children and, therefore, there should be a more graduated response. I note that under s 60CC(2) and s 60CC(3) of the Family Law Act1975 (Cth) there are a number of factors I am to take into account, some of them I am unable to assess adequately today. While I can satisfactorily say that I am not concerned in the light of Dr M’s report about the physical safety of the children from any malicious acts on the part of the father, I accept that he does have some restrictions in his abilities at the present time. I do not accept that these restrictions are such as would prohibit him from being an effective parent, but they may inhibit his ability to parent effectively in some respects.

9. The relevant factors that would ordinarily be appropriate and will be appropriate when I determine the matter finally would include what the children want and their views about the situation, which may vary depending upon their age and their ability to articulate those views.  I propose to put in place orders that will enable me to at least have some idea of that before I deal with the matter finally.

10. I also take account of the responsibility that each of the parents have exercised as parents and their ability to support the relationship with the children with the other parent.  I remain deeply troubled by the fact that these are parents who are significantly in dispute.  While they have taken to heart the orders of this Court that they attend various programs, including the Child Inclusive Program, it seems to me it is unlikely that they are ever going to be at a point where (to borrow perhaps an inadvertent reference from Mr Bak) they become “amicable.” 

11. What is important, however, is not that they like each other or even that they are friendly to each other in the future.  What is important is that they are able to work together for the benefit of their children.  That does not mean that it is a question of the rights of one parent or the other.  It does not mean that it is a question of time.  It does not mean that there is to be some sort of fairness about the division of time between the children and the parents.  What it does mean is that the children should have the benefit of being able to have an effective and beneficial relationship with each of the parents. 

12. Section 60CC(2) of the Family Law Act1975 (Cth) does not say that it is a primary consideration that the children have a meaningful relationship with each of the parents. The requirement is for the Court to consider whether there is any benefit of a child having a meaningful relationship with both of the child’s parents.[1]  It is possible that children may have a meaningful relationship without having any benefit from it.  This is a distinction which has been made in the literature[2] and with which I agree.

    [1] Family Law Act 1975 (Cth) s 60CC(2)(a).

    [2] See, for example, Richard Chisholm, “The meanings of ‘meaningful’ within the Family Law Act amendments of 2006: A legal perspective” (2008) 22(3) Australian Journal of Family Law 175.

13. It is my task ultimately to determine what benefit the children will derive from the time they spend with each of their parents. 

14. There are no other factors at the present point which I believe bear upon the matter, apart from the practicality of the way in which this might be implemented.  In my opinion, notwithstanding the submissions made by each of them, the appropriate arrangements at the present point would be that the two girls spend from every second Friday after school until 5.00 pm on Sunday with their father, contrary to the mother's view, and that for the time being at least, the boys spend between 9.00am to 5.00pm on both Saturday and Sunday with their father. 

15. I am prepared to review that situation after a month when this has been in place after two occasions, which will give the children an opportunity to get used to things with their father.  This will also enable the father to have an opportunity to provide the appropriate bedding for the boys and the appropriate car restraints.

16. If neither parents want the orders to be changed before the hearing - which I doubt - then I do not require anyone to return, but each of the lawyers can advise me accordingly.  On the assumption, however, that the parents are not in agreement either about extending the time or, alternatively about continuing it until the finalisation of the hearing, the matter can be re-listed before me at the end of the next two occasions on which this occurs, the first of which will happen on this coming Friday, 27 March 2009.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: 

Date:              26 March 2009