KELLY & HUNTER

[2016] FCCA 893

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLY & HUNTER [2016] FCCA 893

Catchwords:
FAMILY LAW – Ruling on interim spend time arrangement.

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant: MR KELLY

Respondent: MS HUNTER

File Number: MLC 1003 of 2012

Judgment of: Judge Burchardt

Hearing date: 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Melbourne

Delivered on: 15 April 2016

REPRESENTATION

Counsel for the Applicant: Ms Boymal

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Howe

Solicitors for the Respondent: Perisic Lawyers

Counsel for the Independent Children’s Lawyer: Ms Trapski

Solicitor’s for the Independent Children’s Lawyer: Trapski Family Law

ORDERS

1. Order 1 of the orders made on 7 April 2016 be suspended.

2. The parties forthwith do all acts and things to commence family therapy with Catholic Care (or any such other organisation nominated by the Independent Children’s Lawyer should Catholic Care be unable to assist) with respect to the father’s relationship with

   
   

   X and Y (“the twins”).

3. The Independent Children’s lawyer be at liberty to discuss with Headspace, Catholic Care or any organisation that assists the twins and/or family with therapy and/or counselling and this order act as an authority for same.

4. The parents be at liberty to attend the twins’ footy practice and games or any other extracurricular activity the twins are involved in.

5. Z’s time with the mother is to commence on 15 April 2016.

6. The twins’ time with the father is to commence on 22 April 2016.

IT IS REQUESTED THAT:

1. Pursuant to s.91B of the Family Law Act 1975, the Department of Health and Human Services in the State of Victoria intervene in these proceedings.

2. Upon request, the Court do provide to the said Department copies of all documentation relevant to the proceedings before the Court to enable the said Department to consider the request to intervene in the proceedings.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1003 of 2012

MR KELLY

Applicant

And

MS HUNTER

Respondent

REASONS FOR JUDGMENT

1. This is an interim dispute which I approach by reference to the statutory pathway as illuminated by paragraph 82 of the decision of the Full Court in Goode & Goode [2006] FamCA 1346. I would indicate, however, as a preliminary matter that I am going to make a section 91B order and provide a copy of this ruling to the Department. I entertain vivid concerns that this is a matter in which, in a sense, the Department in many ways is a better regulator than the Court.

2. First, I have to set out the competing proposals of the parties. The father, supported by the Independent Children’s Lawyer, seeks an order for family therapy to assist the relationship between the father and the two boys X and Y with whom we are concerned. He has also sought in effect that an order be made that the mother have no time with the children unless the children spend time with the father.  This is designed to effectively coerce the two boys to spend time with their father. 

3. There is a further order that the Independent Children’s Lawyer be at liberty to discuss the matter with Headspace or any other relevant organisation, and that the parents be at liberty to attend the children’s football practise and games or any extra-curricular activities in which they are involved.

4. The mother’s countervailing proposal is that in effect the current order number 1 be set aside, which would have the effect of returning the parties to an antecedent regime whereby the children live with her and spend time with the father each alternate weekend.

5. The issues in dispute in the proceeding are all too numerous.  Essentially, and putting the matter very broadly, each parent expresses vivid concerns about the children’s safety in the other’s household.  Each parent maintains that the children really want to live with them primarily, and each parent expresses vivid concerns that the children are being coached to express certain views and are, in effect, being alienated from the other. 

6. Agreed or uncontested relevant facts are extremely thin on the ground;  however, perhaps it is sufficient to note that the matter came before the Court on 6 April, orders were contemplated for a spend time regime to be explained to the children the following day. The children attended; they were spoken to by the Independent Children’s Lawyer and a counsellor, and most regrettably, and that puts the matter at its lowest, the mother effectively sabotaged that proceeding for whatever reason.  It will be a matter for final trial as to whether it was done malevolently or just through a lack of insight.

7. The boys got the clear hint that they could do what they want and they acted on it. They ran away from the father, effectively, and have been with their maternal grandmother since. That cannot continue because the maternal grandmother understandably enough has a job and she has to go back to it. That is the immediate backdrop of facts against which the matter stands.

8. The material filed shows vivid concerns about each of the parents.  Both are said to have very significant weaknesses. I note that the mother has recently remarried someone who has just got out of gaol after a four month term for an offence he does not disclose. The children’s behaviour, on any view, as described by the Independent Children’s lawyer based on some experience of them, is deeply concerning.  They are clearly, it would seem at least on an interim finding, grossly over empowered, their manners appear to leave a lot to be desired; they as good as told the Independent Children’s Lawyer and the counsellor to get lost and they propose to do what they want. They are clearly aware from whatever source that no one can put them in gaol. It is a very unfortunate and reprehensible set of circumstances.

9. Bearing those matters in mind, and bearing in mind that this is not the occasion for the assumption of equal parental responsibility given the matters in issue, it is a matter of where the children’s best interests lie.  The submissions made by counsel for the father and for the Independent Children’s Lawyer make it clear that this is, in a sense, a last ditch attempt to ensure that the children have an appropriate relationship, at least on an interim footing till trial, with their father.  It is implicit in their position that week about time is either insufficient or unlikely to occur if the children live primarily with their mother.

10. The position put by the mother can be shortly put again. The children will be 13 in (omitted). They have voted with their feet. There is nothing to be done about it.

11. There must be considerable doubt as to what the path of events will be if the orders are made that the mother seeks. Her behaviour during the recent discussions with the counsellor and the Independent Children’s Lawyer are deeply concerning. There have been three family reports in the last year. These parties soak up resources without any hesitation and I suspect will continue to do so. The report in July last year states at paragraphs 55 - 56:

    The views of the eldest four children must increasingly be given greater weight with their growing maturity. This has already been the case in relation to W and V and is of greater relevance in terms of the views of X and Y as the twins approach their 12^th birthday. The twins’ increasing maturity was noted in the previous report and is of even more relevance now, given the boys are now almost one year older again. Given the entrenched positioning in the family there is little benefit in enforcing arrangements on the children as recent history would suggest that this has only served to harm the parent-child relationships and increase overall conflict and tensions within the whole family system.

    As stated in the evaluation in the last updated report, both parents still need to ensure that they continue to refocus on the best interests of the children. It is possible that if the current dispute can be settled the parents may be less focused on their own adult conflict and more attuned to the needs of the children, even if the final orders are not in accordance with their own preferences.

12. I point out that the children are now almost a year older yet again since the report I have just read from. A further report in December 2015 records relevantly for these purposes at paragraph 58:

    This family has a history of divided loyalty whereby it has been almost impossible for the subject children to maintain a close and connective relationship with each of their parents and there has been protracted animosity between the parties. This history has meant and continues to mean that an equal shared time arrangement cannot be recommended for any of the subject children. 

13. The most recent report released on 22 February and dated 15 February 2016 notes at paragraphs 39 - 40:

    As noted in the December 2015 updated family report, both Y and X (12 years and (month omitted)), are old enough and appear to have sufficient agency to express and act upon their own preferences in terms of the parenting arrangements.  The twins have also observed their older sisters making decisions about their living and spend time arrangements when they were of a similar age, and this has no doubt set some sort of precedent in the family. 

    There have been occasions in the last five months when the boys have chosen to live with one parent rather than another in contravention of the current Court orders, and when they have chosen to disregard spend time arrangements depending on where their current loyalties are placed.  It is likely that no matter what orders are made in relation to X and Y’s living arrangements, the boys will continue to exercise their own preference, albeit with the likely additional influences of each of the parties.

    As a matter of preliminary impression and on an interim basis it seems to me that that is a prescient remark.

14. The Independent Children’s Lawyer correctly observes that if the children are not effectively coerced to return to their mother they will be rewarded for their bad behaviour, and it is quite clear that that is correct. The difficulty of course lies in a number of areas. First, the family reports all point to the maturity of these children and their capacity to act on their own wishes.  Second, the only real coercion that can be brought to bear is coercion on the mother.  Plainly, if I make the orders sought by the Independent Children’s Lawyer there is a very real chance that the mother will contravene. That would, in the circumstances of the case, rapidly lead to either a suspended sentence or a gaol term. Whether that would actually coerce the children must be extremely doubtful. It is not really the appropriate way in which to handle parenting arrangements.

15. The father would naturally have a vivid concern that if the children are not ordered to be returned to him the mother would alienate them from him, and on the materials that is a very understandable fear. A year ago the report writer was saying that there is no point trying to coerce these children, and in the ultimate I think that is probably right. I am going to make the orders sought by the mother. I will also make the orders, however, for the counselling with Catholic Care and the ancillary order that the Independent Children’s Lawyer seeks.

16. Whatever the outcome of the ultimate trial, all the materials at this stage point to the children being deeply traumatised and distressed by the dispute between their parents, and they are starting to show very concerning behaviours. Everybody needs to focus on that. That is a plea for something that has never happened yet, apparently, but that is what ought to be happening.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 20 April 2016