Kilmartin and Kilmartin

[2007] FamCA 91

FAMILY COURT OF AUSTRALIA

KILMARTIN & KILMARTIN [2007] FamCA 91

FAMILY LAW - CHILDREN - Parenting - Interim

Family Law Act 1975 (Cth), s. 61C

Goode v. Goode [2006] FamCA 1346

HUSBAND: Mr Kilmartin

WIFE: Mrs Kilmartin

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: MLF 3155 of 2006

DATE DELIVERED: 1 February, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 1 February, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms Cranenburgh

SOLICITOR FOR THE APPLICANT: L.G. Yves Michel & Co.,

COUNSEL FOR THE WIFE: Ms Johns

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Windisch

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Nickolls Windisch & Assoc.,

ORDERS

1. That until further order the children M born in September, 2002 and L born in January, 2004 live with the husband at the following times :

   (a)subject to paragraph (3) hereof, from 6:30 pm. on Friday until 7:00 pm. Sunday;

   (b)from 6:00 pm. until 8:00 pm. on each Tuesday and Thursday;  and

   (c)at such other times as are agreed between the parties.

1. That until further order the children live with the wife at all other times. 

1. That the husband and wife do all things reasonably necessary to ensure the children attend Korean school on 3 February, 2007 and each second Saturday thereafter and unless the husband confirms that he will take the children to Korean school on those Saturdays, they live with him from 12:30 pm. Saturday until 7:00 pm. Sunday in lieu of the period specified in paragraph (1)(a) hereof.

1. That until further order the husband be permitted to enter the kitchen and the bathroom of the main residence at I during the following periods :

   (a)Monday to Friday from 6:30 am. to 7:30 am.;

   (b)Saturday and Sunday from 8:00 am. to 9:00 am.;  and

   (c)each week night from 7:00 pm. to 8:00 pm.

1. That the husband, the wife and the children of the marriage attend upon Ms F, psychologist for the purpose of the preparation of a Family Report in relation to the parenting issues in dispute, and the costs of that report be met by the husband.

1. That the father be at liberty to attend M’S kindergarten on her first day of attendance and on all other activities or functions routinely attended by parents.

1. That the parties use a communication book to be exchanged at changeovers in which information of importance to the children’s welfare is written.

1. That the amended form 2A filed by the husband on 22 January, 2007 and the form 2A response filed by the wife on 22 December, 2006 be otherwise adjourned to the long judicial hearing list on 9 March, 2007 at 10:00 am. 

1. That any further affidavit on which a party intends to rely on the adjourned date, be filed no later than seven days prior to the adjourned date.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3155  of 2006

Mr Kilmartin

Husband

And

Mrs Kilmartin

Wife

Independent children’s lawyer

REASONS FOR JUDGMENT

1. The parties and their legal advisers have spent much of the day negotiating, trying to resolve a number of issues.  It has no doubt been a long and stressful day.  I am now asked to determine a number of aspects of applications for parenting orders.  Applications in relation to sole use of the home, a Barro order to fund the litigation, spousal maintenance and other financial matters are to be adjourned for hearing in the long interim list on 9 March, 2007. 

1. It is very clear, reading the affidavits of the parties, that they carry a great deal of unresolved anger and frustration, a consequence of the breakdown of the marriage and the circumstances in which they are now living.  Their affidavits contain an avalanche of allegations.  If every allegation is to be determined in due course, the parties are in for a very lengthy case and a very expensive case.

1. The parties separated under the one roof in July 2006, after a period of tension and unhappiness.  They had married in 2002.  Their children are M, who is four and a half, and L, who is three.  Since they separated the wife has remained in the former matrimonial home and the husband, for reasons to which he deposes, has moved into a bungalow at the rear of the property.  He has deposed to the inconvenience of that arrangement. 

1. Throughout the marriage the husband was the income earner.  He remains the income earner.  He works in the IT field.  There is a dispute about the extent of his work commitments.  The wife relies on his contract (which has been subpoenaed) which sets out an inflexible and reasonably demanding work routine;  his evidence is that it is a notional regime and his employment commitments are much more flexible.  He deposes that since the children were born he has had, and exercised, a deal of flexibility;  he has been able to work from home on occasions, and able to come home (as one of his witnesses deposed occurred on one occasion) if a crisis arose.

1. This is an interim hearing.  However frustrating for the parties, the Court cannot determine contested allegations.  The Full Court recently confirmed the limited nature of interim hearings such as this;  see Goode v. Goode [2006] FamCA 1346. Where the Court cannot make findings of fact it should not be drawn into issues of fact or the merits of the substantive case. The Court can look to less contentious matters (of which there are few in this case) and have regard to care arrangements prior to separation, the current circumstances of the parties and children, and the parties’ respective proposals. In this case the Court can take comfort from the fact that whatever the outcome of this hearing, both parents will have significant involvement in the care arrangements for M and L.

1. The parties have agreed on a number of orders in relation to the applications for parenting orders, which is to their credit.  A family report is to be prepared.  The children will spend time with their father on Thursday and Tuesday evenings from 6.00 to 8.00;  the children will continue to attend Korean school on Saturday mornings in each second week.  Further, they have agreed on arrangements for the use of facilities within the home.

1. The dispute to be determined now is the issue of the time the children are to spend with each of their parents during weekends, pending determination of their applications.  The wife's proposal is that in each week the children spend time with or live with the father from 6.30 pm Friday until 7 pm Sunday.  His proposal is that the children be with him from 6 pm Friday until 7.30 on Monday morning, or 8.30 in the event he is to take M to kindergarten.

1. The independent children's lawyer has very recently been appointed.  She was provided with some material yesterday, and has not had time to make any independent inquiries.  She does support the orders sought by the wife.  Importantly, there is no evidence before the Court of the emotional attachments of the children.  That evidence may be of use when assessing the parties’ competing accounts of who has been responsible for the children’s primary care.  The children are still young.  Even at the interim stage some expert evidence on this issue would be useful. 

1. The legislation relating to children is built on twin pillars.  The first is the importance of children having as meaningful a relationship as possible with both parents; the second is the importance of protecting children from abuse and violence.  The Family Law Act 1975 contains a presumption of equal shared parental responsibility. The presumption may not apply if the Court makes a finding that a parent has been violent or abusive. If it does apply, it can be rebutted if the Court finds that to be in the best interest of the children. Until the Court makes an order to the contrary, parents share parental responsibility for children pursuant to s.61C.

1. In Goode the Full Court found that the presumption should apply in interim cases unless the Court found that to be inappropriate. 

1. Given the raft of allegations made in this case I am satisfied it would be premature to determine whether the presumption should apply, or be rebutted.  Until more evidence (and preferably more objective evidence) is before the Court, it would not be appropriate to do so.   

1. The wife's submission is that she has always been the full‑time parent and homemaker and remains so;  that since the separation the children have stayed with their father overnight from Saturday until Sunday and, on occasion, after work;  that M is about to start kindergarten and has a very full schedule to manage and should be back with her on Sunday evening.  The evidence is that M goes to kindergarten at 8.30 am. on Mondays and Tuesdays, and at 1:00 pm on Thursdays.  She has a dance class on Tuesday afternoon.  Both children attend a Korean playgroup.  They attend music classes on Wednesday and the Korean language school on Saturday morning.  The wife alleges that the husband has been abusive towards her, that he has on occasions drunk to excess, and that the children's very strong emotional bond is with her.

1. The husband disputes much, if not all, of the asserted facts on which the wife’s submission is based.  His evidence is of spending more time with the children, and more overnight time since separation.  His submission is that the wife experienced postnatal depression and depression recurrently throughout the marriage;  that she has behaved in a denigratory way towards him;  that she has emotional and psychological problems.  His evidence is that he has arranged his work hours to be at home in the past and looked after the children full‑time for a period when the wife travelled to Korea. 

1. Further, the husband submits that the wife is trying to alienate the children from him, that she is an incompetent housekeeper, and that he sees the children now every day.  He deposed that L has been sleeping with him in the bungalow almost every night, and that M has been spending a lot of time with him there until recently;  he blames the wife for the change in that arrangement. 

1. The husband has agreed to take the children to Korean school every second weekend, a compromise between the wife’s desire for them to continue to attend weekly and his view that attendance could be suspended.  His counsel submitted that this will mean he will lose a few hours with the children on alternate Saturdays, and for that reason he should have them overnight on Sunday.

1. Parenting orders are made for the benefit of children, not the benefit of adults.  The issue to be determined and the vehemence with which it is argued demonstrates the intractable gulf between the parties at the moment.  It says more about their conflict than their focus on the children.  Given the ages of the children, the time they spend with a parent between 7:00 pm. on Sunday and 7:30 am. on Monday is not great. 

1. The wife’s evidence is that the children's bedtime is 8.30 pm.  The husband responded to that assertion by saying he was pleased to hear it, as she has been erratic and inconsistent in putting them to bed in the past, and has let them stay up until all hours.  She countered that by deposing to occasions when the husband has taken the children out at 11.30 pm.  If the wife is right when she says their bedtime is 8.30 pm, and if the husband is right when he says he approves of that and would support that practice, they are arguing about a brief period of interaction.  It would involve a short time between tea on Sunday night and putting them to bed, and a short time in the morning before either returning from the bungalow to the house, or M going from the bungalow to kindergarten.  Their submissions say more about the parents' investment in the argument than the best interest of the children.

1. What has happened in the past (what might be called the status quo) may still be a matter to consider but the Court must view the children’s interests as paramount and consider the various factors set out in the legislation, including the objects and principles of the part relating to children. 

1. This order is to last until 9 March, a period of about six weeks.  Having regard to all of the evidence, it is my view that the children should return on the Sunday evening.  An order will make it clear that the father can attend M's kindergarten on her first day, and on any other occasion which is routinely attended by parents.  His active involvement in her kindergarten life will be of value to her;  she does not have to go straight from his care to kindergarten for him to be able to play a role there.

1. The children's relationship with their father is very important.  So is their relationship with their mother.  It is clear they will be spending a lot of time with both parents.  The father’s applications is for week and week about care although his counsel conceded that is not feasible at the moment.  It will be considered when and if it becomes feasible.  I propose to order that until further order M and L live with their father at specified times, rather than “spend time” with him.  The effect may be the same but words carry freight and can be used as weapons in cases as hard fought as this.  Both parents are to continue to play meaningful roles in the children’s lives. 

1. The order will note that the husband's agreement to paying the full cost of the family report is contingent on the parties' agreement that there be an allowance made for this in the final property/financial settlement between them.  In the last analysis, that may be a matter for the trial judge, but I make the note to confirm the parties’ stated intentions at this time. 

I certify that the preceding
21  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of           2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KILMARTIN & KILMARTIN