Kube and Sikkens

[2008] FamCA 207

FAMILY COURT OF AUSTRALIA

KUBE & SIKKENS [2008] FamCA 207

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Kube

RESPONDENT: Mr Sikkens

FILE NUMBER: BRF 586 of 2006

DATE DELIVERED: 29 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 29 February 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Gunn
Legal Aid Qld

SOLICITOR FOR THE RESPONDENT: Mr Hodgson
A P Hodgson & Associates

SOLICITOR INDEPENDENT CHILDREN'S LAWYER Ms Effeney
Nicol Robinson Halletts

Orders

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT

1. Pursuant to Section 65L of the Family Law Act 1975:

   a.    compliance with these parenting orders is to be supervised by a Family Consultant of the Family Court of Australia Brisbane Registry;

   b.    the supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders including but not limited to the parties attempting to reach agreement in respect of holiday periods including Christmas; decisions in respect of extra-curricular activities for the children; participation in religious festivals.

1. The parents shall ensure that the children attend counselling as might from time to time be recommended by either the child’s counsellor or the family consultant.

1. The Independent Children's Lawyer be discharged.

1. Pursuant to s 65DA(2) and s 62B, 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.

IT IS NOTED THAT

(a)In delivering Reasons in this matter Justice Murphy referred to the fact that the parties have been in conflict about parenting issues for about five years since final orders were made in 2003. His Honour declined to make orders for, inter alia, the allocation of Christmas time, holding that, consistent with the objects and principles of the Act, the parties should attempt to agree upon such matters including by utilising the assistance of a Family Consultant within the ordered s 65L process.

IT IS NOTED

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

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT THAT

1. All previous orders in this matter be discharged.

1. The children, R, born … April 1997 and G, born … January 1998, spend time with the mother and father as can be agreed and failing agreement as follows:

   i.both children with the mother from after school Monday to before school the following Monday and alternating every second week thereafter;

   ii.both children with the father in the alternate week to the mother, from after school Monday to before school the following Monday and every second week thereafter.

2. Both parties will allow the children to telephone the other parent whilst the children are in their care.

1. Both parties are to keep the other informed of a current contact address and telephone number and will inform the other parent in writing within 48 hours of such change.

1. The parties are to advise each other if they intend to travel with the children away from home for a period of over 48 hours and will provide an alternative contact telephone number or address and itinerary and provide 60 days notice to the other parent.

1. Each parent is to authorise the child’s school and medical practitioners to communicate directly with the other parent on any matters concerning the children and is to provide copies of any reports or written information available pertaining to the children at their request and their expense.

1. If the child is sufficiently unwell to spend time with the other parent, the parent who has the care of the child is to provide notice, and if possible, a medical certificate to the other parent.

1. The mother and the father are to immediately inform the other parent of any medical emergency and serious injury involving the children.

1. Neither party is to use physical discipline on the children

1. Neither party denigrate each other or any member of their family or friends in front of the children or expose the children to anyone else doing so.

1. Each parent will give the other party the first opportunity to care for the children if they are not able to do so during the school holidays.

1. Each parent will be primarily responsible for caring for the children while in his/her care.

1. Neither party shall discuss with the children, or within the hearing of the children, or allow any other person to do so:

   i.these Court proceedings in the Family Court of Australia; or

   ii.any issue arising from these Court proceedings and in particular any of the contents and issues raised in any of the Family Reports prepared for the purpose of these Court proceedings.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 586 of 2006

MS KUBE

Applicant

And

MR SIKKENS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Competing applications for parenting orders are made in circumstances where consent parenting orders were made in 2003 in respect of two children, R, born in April 1997 currently aged almost 11, and G, born in January 1998 currently aged just 10.

2. Initially when the matter came before me, the mother and independent children's lawyer, sought orders which were contained in minutes which I annex to these short reasons.  In broad compass those arrangements would have seen each of the children spending alternate weeks with each parent. A further effect of the orders sought was that, during the week, the two children were separated but spent weekends together. 

3. Further, it was submitted jointly by the mother and the independent children's lawyer that the matter should be returned for review in approximately 12 week's time.

4. Subsequent to the orders made in 2003, it is plain that these parties have been unable to do what the legislation requires them, as responsible parents, to do. That is to cooperate and parent jointly their children for their children's benefit. 

5. In failing to do so they affect the rights of their children to enjoy parenting from, and a relationship with, each of them untrammelled by conflict and dispute which research in every part of the world shows is harmful to children. 

6. Research in every part of the world shows that the thing that affects children most when they go through the devastation of their parents separating is continuous conflict. 

7. I have reports before me from Ms L who prepared a report dated 9 July 2007 and, more recently, a report from the B Counselling Service dated 20 February 2008, which I have marked as Exhibit 1 in these proceedings.

8. Various contentions are made by each of the parties about what the children did or didn't say or what their precise views are or were at various times during the latter counselling process.  The focus has been on their views and what might be called the veracity, or reliability, of their views. 

9. What does not seem to have been heard by either of the parties, at least in so far as is manifested in their proposals and in arguments made on their behalf, is that the children were clearly and plaintively saying in both Ms L’s report and the B Counselling report, "Please stop our parents fighting.  That's what we don't want." 

10. The children were also clearly expressing some confusion about the respective roles of their parents and the degree to which each of their parents can jointly co-operatively parent them as they have a right to expect.

11. In that context, I expressed during the course of argument considerable concern about a number of matters. 

12. First, I expressed my view and worry that neither of the parents appeared to be listening to those other aspects of what the children were saying, most particularly in the report by the B Counselling Service on 20 February 2008. 

13. Not only are these children plaintively pleading with their parents to stop fighting, they are also, at least in R’s case, expressing what I regard as a desire to protect or look after their parents and, in particular, in his case, the father. 

14. A degree of such emotion is a necessary incident of an appropriate love that a child has for a parent. However, the extent to which that is evident in the report is an extent of something which, in my view, is the opposite of what is in the best interests of these children.  In my view, it is the expression by R (and to a lesser extent similarly by G) that the children are attempting to parent their parents.

15. I was also concerned about the fact that, under the joint proposal of the mother and independent children’s lawyer, the children would be separated from each other for a significant period of time, namely the whole of the weekday period. 

16. It was submitted that the children go to the same school and are in similar classrooms. But, I do not consider it consistent with the best interests of these children that arrangements be left to them to ensure that they see enough of each other and interact sufficiently with each other, even were that possible within the school environment. 

17. It is, in my view, the job of this Court and parenting orders made under the legislation to achieve via orders what people cannot achieve for themselves by agreement, and in this case specifically, to make orders to facilitate that sibling relationship to the greatest extent possible.

18. Next, I express some concerns, which were ultimately summarised, I think, with respect, accurately and appropriately by the independent children's lawyer that the, as it were, elephant in the room in respect of the proposed orders, was that the parties were effectively saying to me, although not in these terms, that neither of them could properly parent these children together for significant periods of time. 

19. Now, one or other of them may dispute that to one degree or another but, nevertheless, as I said during the course of argument, that seemed to me to be the elephant in the room.  Again, such a situation, it seems to me, is antithetical to what is contemplated by the Act and it is prima facie antithetical to appropriate parenting of children by loving, caring and responsible parents.

20. Again, Ms Effeney, the independent children's lawyer, submitted, I think, again with respect, properly and appropriately that, the justification for the orders put forward in the minutes was possibly that, where there was such a degree of conflict between their parents and an apparent inability to get on (which is evidenced by the fact that these parties are still before this Court five years after orders were first made) and in circumstances where orders were made by this Court on 10 July 2007, and again on 13 December 2007, that the best way to stop these parents fighting was to separate the children. 

21. That may be right logically, but I consider it less than ideal - significantly less than ideal - if the best interests of children is, as is mandated, the guiding consideration for orders made by me.

22. Having expressed my views strongly and forcefully, but strongly and forcefully, as I see it at least, consistent with notions of joint parenting dictated by the legislation, and consistent with considerations which are mandatory for me to take into account pursuant to s.60CC of the Act, the parents have, commendably, decided to try and do something positive for their children. I have suggested that consistent with the legislative objects, principles and considerations, parenting orders for these children need to provide, firstly, consistency. 

23. Secondly, they need to allow the children to have a clear understanding of what the parenting arrangements are and, thirdly, they should provide for each of their parents to be consistently and regularly in their lives. 

24. Fourthly, and importantly, the children need to establish and develop an appropriate sibling relationship.  As has been commented upon more than once by psychiatrists giving expert evidence in this Court, the significance of the sibling relationship is that you have your sibling relationships for life.

25. In all of those circumstances, what occurred subsequent to argument and discussion between the bench and those at the bar table was that the parties, through their respective legal advisers, instructed that their position had altered from the position indicated in the minutes of order earlier referred to.

26. Each party now sought, effectively by consent, orders for alternate week contact but with both children spending time together with each parent. 

27. It seems to me that such an arrangement is, firstly, consistent with the overall objects, principles and considerations I have to take into account under the Act.

28. Secondly, those orders are consistent, or at least consistent in significant respects with what each of the children is saying. Hopefully the arrangements are a signal to the children that their parents have decided that they can agree on something, rather than having it imposed on them by a Court.

29. It might also signal, at last, if we all hope sufficiently, an end to the fighting between these parents and more co-operation in the parenting of the children.

30. Thirdly, the proposed orders seem to me appropriate because they provide for the children consistency and predictability about when and how they will be in each parent's care, and each of the children can be satisfied that they will spend significant periods of time with the other parent on a regular basis at a time known to them.

31. Next, the orders seem to me to eliminate what I regard as being the confusion, with respect, in the consent arrangements put in place in the orders of 13 December 2007 that result in multiple changeovers on different days of the week for each of the children. 

32. Accordingly, in summary, it seems to me consistent with the best interests of these children that I make orders for what is commonly described as “week about time” with both children spending that time together with each of their parents. 

33. The initial minutes of order included an order that this matter be reviewed in 12 week's time.  Again, that proposal was the subject of some criticism by me during the course of argument. 

34. The criticism was founded on two propositions.  First, a profound concern that it should not be necessary, as a matter of principle, to have the Court consistently review arrangements made between parents for their children in circumstances where their first non-consensual situation was resolved by Court orders some five years ago.

35. Secondly, it is a significant drain on Court resources and the taxpayers of Australia to have expensive infrastructure dealing with matters that can, and more appropriately should, be dealt with by parents themselves, including with the assistance of outside agencies. 

36. Thirdly, and in any event, it seems to me that the continual review of this matter by a Court takes from the parents, and sends a signal to the parents that this Court will do something that they clearly should do for themselves. 

37. If these parents are to co-parent their children consistent with their best interests, which is the determinative factor under the Act, it seems to me that they need to do so by arrangements, even if marred by some conflict, which are nevertheless workable between the two of them rather than relying upon the Court to impose solutions upon them. Such a position is, in my view, wholly consistent with the objects and principles of the Act.

38. Having said that, if I take at face value the hope - and the apparent sincerity - evident in the orders that the parties have ultimately agreed to today, it seems to me highly likely that they might need assistance in dealing with issues that might arise from time to time with respect to that arrangement. 

39. I consider it in the children's best interests that they should do so by reference to a third party other than a Court because that is more consistent with the long term ideal of the two of them working out those arrangements for themselves. I intend to make an order pursuant to s65L.

40. Given the issues and the level of conflict to which I have referred, I am persuaded that I should make an order to s.65L of the Act and I will make an order in the usual terms pursuant to that section for a family consultant to supervise compliance with the parenting order that I am about to make by consent and secondly, requiring the family consultant to give any party to the order such assistance as is reasonably requested by that party in relation to compliance with the carrying out of the parenting order.

41. It seems to me that the order that should be made should reflect the least amount of direct contact between the parties, at least initially, as can be arranged.

42. The terms of my orders I think are now clear by reference to:

    (a)the consent order with respect to week about arrangement made between the parties;

    (b) an order in the usual terms pursuant to s.65L;

    (c)and I will allow the parties to simply make reference to those parts of the previous orders that need to be discharged so as to effect this order replacing those earlier orders;

    (d)I make clear that my intention is that I do not intend to make any orders with respect to Christmas unless they are agreed;

    (e)I do not intend to make any orders with respect to any other specific days unless they are agreed.

43. I hasten to say to these parties that this order is not a substitute for them being able to work out arrangements for themselves, which ultimately they must do. 

44. There is eight years, approximately, until these children become adults. These children deserve the love, care and support of both their parents and I can only hope - fervently hope - that they receive it and that the orders that I make today, partly by consent and partly by reference to s65L of the Act might facilitate that occurring.

45. I do not propose to make any orders with respect to Christmas contact.  I consider that is a matter that responsible parents should be able to sort out for themselves.

46. Intelligent, thoughtful, caring parents should be able to reach agreement about those matters for themselves and, in any event, they can be the subject of discussions as part of the 65L process. 

47. Changeovers, again, I will leave to the parties, but they should, it seems to me at least in the first instance, effect their being as little direct face to face communication between the parties as possible.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  2 April 2008