Lake and Grey

[2016] FamCA 244

FAMILY COURT OF AUSTRALIA

LAKE & GREY [2016] FamCA 244

FAMILY LAW – CHILDREN – Spend time – where the parties have agreed that the child spend each alternate weekend with the father – where the father seeks additional time with the child for one evening in the intervening week which is not agreed to by the mother – where the child is 12 years of age and has indicated to the family consultant a desire to spend further time with the father – final orders made for the father to spend time with the child each alternate weekend and for one evening in the intervening week

Family Law Act 1975 (Cth)

APPLICANT: Mr Lake

RESPONDENT: Ms Grey

INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

FILE NUMBER: MLC 11392 of 2011

DATE DELIVERED: 18 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 22 & 23 February 2016

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

IT IS ORDERED BY CONSENT THAT

1. All previous orders be discharged.

2. The  mother  have sole parental  responsibility  for the children B born … 2001 (“B”) and  C born … 2003 (“C”) and the mother:

   (a)authorise the children’s school to provide to the father, at the father’s expense, copies of all newsletters, photographs, notices and other communications ordinarily sent to parents and the father be entitled to communicate with the children’s treating doctors, school staff or other professionals involved in the welfare of the children in order to receive information about the children’s welfare and progress;

   (b)apprise the father and keep him apprised in writing of decisions made by her in exercising sole parental responsibility as soon as practicable after the making of such a decision; and

   (c)be restrained by injunction from changing the children’s names or permitting the children to be officially known by any other names.

3. The children live with the mother.

4. There be no contact between B and the father save and except by prior written agreement between the parents.

5. The father spend time with C as follows:

   (a)during school term periods, commencing on the second week of each school term, each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday and if the weekend coincides with a public holiday, then the contact continues until the next school day;

   (b)for the second half of each school term holidays, from 4.00 pm on the middle day;

   (c)for the first half of the long summer school holidays in even numbered years and the second half of the long summer school holidays in odd numbered years;

   (d)       at Christmas as follows:

   (i)from 11.00 am on Christmas Day until 11.00 am on Boxing Day in 2016 and in each alternate year thereafter; and

   (ii)from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2017 and each alternate year thereafter;

   (e)on the Father’s Day weekend from 6.00 pm on the Saturday night until the commencement of school the following Monday; and

   (f)       as otherwise agreed between the parties.

IT IS ORDERED THAT

1. The father spend time with C during school terms each alternate Thursday from the conclusion of school on Thursday until 7.30 pm.

2. In the event that C attends at the father’s home otherwise than at times provided for in paragraphs 5 and 6 of these orders or with the written agreement of the mother the father shall as soon as practicable thereafter deliver C to the mother’s home. 

IT IS FURTHER ORDERED BY CONSENT THAT

1. For the purposes of the father’s time spent with C where changeovers do not coincide with the commencement or conclusion of school, then changeovers take place at the J Street shops.

2. The father’s time with C is suspended as follows:

   (a)from 11.00 am on Christmas Eve until 11.00 am on Christmas Day in 2016 and in each alternate year thereafter;

   (b)from 11.00 am on Christmas Eve until 5.00 pm on Christmas Day and in each alternate year thereafter; and

   (c)on the Mother’s Day weekend from 6.00 pm on the Saturday.

3. Notwithstanding any other provision herein, C shall be in the care of:

   (a)the father on C’s birthday and on the father’s birthday for a period of four hours as may be agreed between the parties in writing and failing agreement from 3.30 pm until 7.30 pm; and

   (b)the mother on her birthday and the birthdays of the children B and F for a period of four hours as may be agreed between the parties in writing and failing agreement from 3.30 pm until 7.30 pm;

4. The father is restrained by injunction from:

   (a)discussing the proceedings with the children or showing, facilitating access to or informing the children of the contents of any documents prepared in connection with these proceedings including but not limited to Family Reports, orders, affidavits and the like;

   (b)attending any of C’s sporting commitments including but not limited to games, practice sessions, or presentations that take place while C is in the care of the mother, without the mother’s prior consent, which consent is to be obtained at least three clear days before the scheduled event;

   (c)recording, videoing, transcribing or disseminating conversations or communications with C or conversations with professionals dealing with the children;

   (d)       enrolling C in any extra-curricular activities;

   (e)taking C to any medical or allied health practitioner except with the prior written consent of the mother or in the case of medical emergency; and

   (f)attending any school attended by either child, except in the case of C, to collect him for contact pursuant to these orders, or with the mother’s prior written consent for events such as concerts, assemblies, parent teacher interviews and like events.

5. In the event that either party has a specific issue about which they wish to consult with the other parent, then that party will contact Mr D for the purposes of reportable counselling, the costs of which is to be borne equally between the parents.

6. The Independent Children’s Lawyer and/or the mother be at liberty to:

   (a)provide a copy of any orders and reasons for judgment and a copy of the family report of Dr G dated 12 February 2016 to Dr E and Mr D; and

   (b)provide a copy of any final orders to the children’s schools or medical or allied health professional engaged to treat or care for the welfare of the children.

7. The order appointing the Independent Children’s Lawyer be discharged.

IT IS FURTHER ORDERED THAT

1. The questions of costs arising out of or incidental to this application be reserved for determination.

2. By 4.00 pm on 28 March 2016 the wife file and serve upon all other parties a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).

3. On or before 4.00 pm on 11 April 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to this application.

4. On or before 4.00 pm on 25 April 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to this application.

5. All extant applications save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

   IT IS DIRECTED THAT

6. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

*These orders have been amended where underlined to accord with the orders made by the Honourable Justice Macmillan on 18 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lake & Grey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11392  of 2011

Mr Lake

Applicant

And

Ms Grey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Although these parenting proceedings were in relation to both B who is now 14 years of age and C who is 12 years of age, the one remaining limited issue I am required to determine relates only to C.

2. In his reasons for judgment delivered on 27 November 2012 Cronin J said as follows:

   2. The orders I propose to make supported by these reasons, must bring the matter to an end for the sake of these children.  Apart from anything else, time is now cutting savagely into their troubled childhood.

   3. Clinical psychologist Dr G observed that the history of the parents’ relationship indicated that the conflict between them was unlikely to cease.  Notwithstanding the consensual nature of much of the orders here, the affidavit material of both parties is replete with complaints about the nature of the relationship between them and the parenting skills each has.

   4. It is not all doom and gloom however because to their credit, the compromises in relation to significant issues were reached leaving only modest (but important) issues to be determined. 

3. Unfortunately, not only did his Honour’s orders not bring the matter to an end, the affidavit material of both parties for the purposes of these proceedings is again replete with their complaints about each other and their parenting skills and as reported by Dr G in her updated report dated 12 February 2016 (“updated report”) the parties have become even more entrenched.

4. Notwithstanding that the parties have once again been able to resolve all but one of the issues in dispute, the evidence does not bode well for the future of this family or in particular the wellbeing of either B or C.

Background

1. The father and mother in this case commenced their relationship in 1999 and started to live together in June 2001 shortly before B’s birth. They separated finally in October 2005 when B was four years of age and C was only two years of age.

2. The father who is 40 years of age is a Manager and lives in rented housing in Suburb K. He has one adult child of a previous relationship. The father’s parents live in Suburb L and have maintained a relationship with both the father and the mother and B and C, both assisting the father and the mother with the children’s care and facilitating changeover.

3. The mother who is 39 years of age works as a part-time kindergarten assistant and is proposing to study Early Childhood Development. The mother has remarried and she and her new husband have a child together F, who is six years of age.

4. Following separation the parties consented to orders which provided for both B and C to spend time with the father each alternate weekend, each alternate Thursday from after school until 7.00 pm, one other afternoon each week and two mornings each week before school.

5. Thereafter the parties consulted with Mr D in relation to the parenting arrangements ultimately reaching agreement on both B and C spending time with the father from after school on Friday to before school on the following Thursday. As early as December 2008 Mr D described the parties’ parenting relationship as difficult and advocated a parallel parenting style. The parties again consulted with Mr D in 2011 when further problems arose.  The mother took both B and C to be assessed by Mr D at that time. Although Mr D’s report is not in evidence before me, Dr G in her report dated 22 March 2012, referring to Mr D’s report, said that Mr D had found that B “was a sad child with many negative themes in his narrative” and that although C was guarded he expressed concern about his parents’ different expectations and conflict with one another.

6. Although there is some dispute about its causes and the father questions some of the symptoms allegedly exhibited by B, there is no dispute that in September 2011 following a psychiatric assessment B spent approximately three weeks in the H Hospital Child and Adolescent Mental Health Unit. Following his discharge he was referred to Dr E and continues to attend upon Dr E for treatment.

7. B has not spent time with the father since May 2013 and was not seen by Dr G for the purposes of her report (the updated report) in these proceedings. Although in his Amended Initiating Application filed 2 December 2015 the father sought orders with respect to B,  ultimately he did not pursue his application with respect to B and the minute of proposed orders provide that that there be no contact between B and the father save and except by prior written agreement between the father and the mother.

8. As noted by Cronin J in his reasons delivered on 27 November 2012 the parties and the children were embroiled in proceedings during the year leading up to the final hearing before him, which included some 13 court hearings about various matters. The orders his Honour made provided inter alia that C spend time with the father each alternate weekend from after school on Friday until the commencement of school Monday or until the commencement of school on Tuesday if Monday is a gazetted public holiday in Victoria, from after school each Wednesday until 7.00 pm on the proviso that if the father returned C more than 15 minutes late that his next scheduled Wednesday visit would be suspended, for the second half of the school term holidays and for one half of the long summer school holidays and on special occasions. C has continued to spend time with the father pursuant to these orders.

9. When the matter came before me on 22 February 2016 the parties indicated they had agreed that the mother should have sole parental responsibility for both B and C. The parties had also agreed that C should spend time with the father during school terms each alternate week from after school on Thursday until the commencement of school the following Monday or until the commencement of school on Tuesday if the Monday is a public holiday. They also agreed that he should spend half of each school term holidays, half of the long summer school holidays and other special occasions with the father. They had each signed a minute of orders to that effect and I will make orders by consent in terms of the proposed Minute of Orders.

10. The only issue I must determine is whether or not C should spend time with the father on the Thursday of the alternate week from after school until 7.30 pm, as proposed by the father. The parties having reached agreement on the other issues I must determine the remaining issue in the context of that agreement.

Legal Principles

1. The parties have each filed trial affidavits and although the mother in her Case Outline referred to various affidavits filed at earlier stages of the proceedings she did not seek leave formally to rely upon those affidavits. Both the parties and the Independent Children’s Lawyer relied upon the reports of the Dr G, who was the Independent Children’s Lawyer’s witness. Those reports, to which I have previously referred, were annexed to the affidavits of Dr G filed 11 October 2012 and 17 February 2016. The parties and the Independent Children’s Lawyer also relied upon the Child Responsive Program Memorandum prepared by the family consultant Ms M dated 26 June 2015.

2. Although my decision is based upon the parties’ evidence and that of the expert witnesses there is much of that evidence which is not relevant to the limited issue which I must determine and on that basis it is not necessary for me to deal with all of that evidence in detail. It is also the case that the parties have agreed that I should determine the issue on the basis of that evidence and their submissions without cross-examination of either the parties or the expert witnesses. On that basis where there is a dispute between the parties as to the evidence I am not in a position to make findings and do not propose to do so. In such circumstances the Court should focus on that evidence about which there is no controversy.

3. Although I am only being asked to determine the one issue, doing so does require the Court to make a parenting order. When doing so the Court must apply the presumption of equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the household or family violence. The presumption may be rebutted in circumstances where the Court is satisfied that it is not in the child’s best interest for the parents to have equal shared parental responsibility.

4. Although in this case there are allegations of both abuse and family violence, the father and the mother have agreed that the mother should have sole parental responsibility for both B and C and even if it were possible to make findings with respect to the contested allegations of both abuse and family violence, it is not necessary for me to do so. I am in any event satisfied on the basis of the evidence of the parties and the expert witnesses in relation to the total breakdown of the relationship between the father and the mother and their lack of any capacity to cooperate in the parenting of their children that it would not be in the children’s best interest for the father and the mother to have equal shared parental responsibility. In these circumstances it is also not necessary for the Court to consider whether it is in the children’s best interests and reasonably practical to spend equal, and if not equal time, substantial time with each parent. Although that is the case the proposed orders with respect to C, whether or not I accede to the father’s application, do allow for C to spend substantial time with the father.

5. In any parenting case it is the welfare of the child or children subject of the proceedings that is the paramount consideration. In determining what is in a child’s best interest the Court must consider both the primary and additional considerations in s 60CC of the Family Law Act 1975 (Cth). The relevance of particular considerations will depend upon the circumstances of each individual case particularly so in a case such as this one where the issue to be determined is of such limited ambit.

6. Dr G’s observations of C with the father for the purposes of her updated report dated 12 February 2016 at pages 14 and 15 were that:

   …conversation flowed easily between them and [the father] was responsive, affectionate, loving, interested and warm.

   [C] listened carefully to his father as they spoke of various shared interests. Together they spoke of friends and memories in way (sic) that was natural and obviously enjoyable for both.

   …

   They laughed together and the mood was most relaxed.

   …

   The session was very relaxed and the interactions between them showed a profound and intimate relationship. [The father]’s behaviour was of his delight and profound interest in [C].

7. Although Dr G said that she could not foresee positive outcomes for this family she ultimately concluded at page 17 of her updated report that “C wants to see his father and I consider that there is value for him in the relationship, both in the short and long term.” I am satisfied, having regard to Dr G’s evidence that C would benefit from a meaningful relationship with the father. I am similarly satisfied that he benefits from his relationship with the mother, her new husband and his sister F. The proposed orders upon which the father and mother have agreed in my view will facilitate C’s relationship with the father and he will have a meaningful relationship with his father whether or not he spends each alternate Thursday from after school until 7.30 pm with him.

1. The parties have agreed that all changeovers that do not take place at school will take place at the J Street shops, which are in close proximity to the mother’s home, avoiding the necessity for the parties to be in direct contact with each other. In those circumstances, although as previously referred to, there are competing allegations of both abuse and family violence in this matter, they are of limited relevance for the purposes of the determination I must make as to whether C should spend time with his father each alternate Thursday after school in the alternate week.

2. It is clear from Dr G’s updated report that C is “a troubled boy who is most conflicted about his family relationships.” and “burdened by the responsibilities placed on him by family members.” Notwithstanding that conflict C told Dr G that “I want to see more of dad. He is my dad, I don’t see much of him. Just every second weekend and Wednesday night. I want to see him more.” Albeit that he said he wished to spend more time with the father, C also said that he still wanted to see his mother, brother, his stepfather and sister F. He also said he was worried about telling Dr G that he wanted to see more of his father because his mother might think that he did not “like her house.” However C also acknowledged that his father would be upset if he told him he did not want to spend more time with him. Notwithstanding his involvement in his parents’ conflict Dr G’s description of C was of a considered young man able to clearly articulate his views. I am satisfied that in all of the circumstances particularly given the history of this matter that significant weight should be afforded to C’s wishes in this case. He is 12 years of age and as I observed during the hearing he is fast approaching the age when he will in effect “vote with his feet.”

3. Counsel for the Independent Children’s Lawyer submitted that although this was a limited issue solely with respect to C spending time with the father it could not be viewed in isolation from the family’s needs generally and in particular B’s needs. Although B was not part of Dr G’s most recent assessment of the family for the purposes of this hearing, she had read the various reports of B’s psychiatrist Dr E and in particular his reports with respect to B’s regression when he had unexpectedly come into contact with the father in late 2014 and early 2015 and when C was not returned to the mother’s care in May 2015. Dr G reported Dr E’s conclusion that “…there is a risk of [B] psychologically breaking down and not recovering and was [sic] seriously harming himself” and that “…the stress means he is not developing emotionally or socially and it is impairing his educational progress.”

4. It was Dr G’s opinion that C’s description of B suggested “… that he is worried for him but also has some deeper conflicted emotions around not wanting to display the troubled behaviour allegedly shown by B and also that he feels guilty and disloyal for enjoying his relationship with their father.” She described C as alternating between sympathy for B and anger towards his brother. Dr G said that C had reported to her that “… when they eat dinner together he is forced to be careful and not mention activities or his time with their father. He alleged that typically B will leave the table if this occurs and C went on to describe that his mother then castigates him for mentioning their father.” At page 13 of her updated report, Dr G described C as articulating his feelings that:

   he cannot please either parent and cannot talk to anyone about his problems because no one is prepared to understand his position. He stated that he cannot talk to his father about his problems because he feels disloyal. He said that he is very conscious of his mother and stepfather’s feelings for his father. He said that he is worried about [B] and does not want his brother to be upset, but is also angry with his brother because he is not allowed to talk about his relationship or activities with his father. He described that he is also annoyed and irritated with his mother for prioritising [B’s] needs over his own and that his own needs to see his father unimportant in comparison to how she sees [B]…

5. Whilst I agree that I must consider my decision in the context not only of C’s needs but also B’s needs I am also satisfied having regard to Dr G’s updated report as compared to her earlier report and Ms M’s Child Responsive Program Memorandum that C is becoming increasingly angry and resentful about the burdens placed upon him by his family and in particular in relation to his desire to maintain a relationship with his father. Whilst I am only being asked to determine whether he should spend each alternate Thursday after school with the father in addition to the time the parties have already agreed he should spend with the father, C’s wish to spend additional time with the father is clear. Although as submitted by counsel for the mother it is true that the time proposed by the parties each alternate weekend from after school on Thursday until the commencement of school on Monday is more time, I am also not satisfied that C will necessarily see it that way. In reaching this conclusion I am mindful of the fact that C has been spending from after school on Wednesday until 7.00 pm with the father since the orders were made by Cronin J in late 2012. In circumstances where C perceives that his best interests are secondary to B’ interests the likelihood of his resentment of the adults in his life and B increasing if he feels like his time with the father is being somehow reduced is, in my view, significant.

6. In weighing up the possible detriment to B of C spending each alternate Thursday after school with the father I have had regard to the fact that as previously referred to C has been spending time with the father after school each Wednesday. It is also the case that C participates in many sporting activities after school. On that basis he is regularly not at home for at least some period after school on a number of evenings each week. Whilst B would be aware that C would not be participating in a sporting activity but would be with the father and that may cause him some concern, it would however in those circumstances be a familiar routine. I am not satisfied in all of the circumstances particularly when weighing up the likely detriment to C who is expressing a clear desire to spend more time with the father that the detriment to B is so great that it would weigh against my making the orders sought by the father.

7. Dr G suggested “an arrangement that has less transitions, such as spending each alternate weekend from Thursday night to Monday morning with his father, to reduce some of the psychological stress for C. If changeovers could revert to C’s school that should avoid emotionally-laden situations involving the presence of both parents in the same place at the same time.” I am satisfied having read the parties’ evidence and the reports of Dr G and Ms M that notwithstanding that both the father and the mother are devoted to both B and C, providing for both their physical and intellectual needs, they are unable to prioritise their children’s needs over their negative views of each other in order to promote their children’s emotional well-being. Irrespective of  what that says about their parenting capacity, it is clear  in terms of my determination that it is important to avoid, as much as possible, the parties coming into contact with each other at changeover. Paragraph 19 of the orders made by Cronin J on 27 November 2012 provides that “..for the purposes of changeovers, the father collect and deliver the children to and from the street entrance to the mother’s home.” It is not clear from the affidavits of either the father or the mother whether changeover has been taking place as ordered by his Honour or the parties have agreed upon some other arrangement however the parties have now agreed that if changeover cannot take place at school then it should take place at the J Street shops. C is 12 years of age, the shops are very close to the mother’s home and there would appear to be no reason why it would be necessary for the parents to come into contact with each other at changeover or if they did it would need to be anything but the most cursory of contact. The father submitted that C could make his own way to the mother’s home from the J Street shops and it was not submitted otherwise by the mother. In all of the circumstances I am satisfied that mid-week time on one occasion each alternate week in these circumstances is unlikely to expose C to the emotionally-laden conflict of his parents.

8. At the commencement of his submissions the father highlighted what he said was the most important aspect of the case which was that there be a resolution of this matter that “sticks”. Whilst not put in those terms the Court is required to consider whether it would be preferable to make an order that is less likely to lead to the institution of further proceedings. Counsel for the Independent Children’s Lawyer also made submissions with respect to the need for stability. Whilst this matter is not determined solely on the basis of C’s wishes, the significance of those wishes is obvious given his age and given his ability ultimately to “vote with his feet.” That together with the evidence with respect to C’s feeling of responsibility and growing resentment of B lead me to conclude that I should accede to the father’s application allowing C to spend time with the father each alternate Thursday thereby reducing the time between his visits with the father which I see as problematic in circumstances where he is asking for more time. I will order accordingly.

9. Although the parties had agreed upon an order that restrained the father from retaining or otherwise having C in his care other than in accordance with these orders, I am not satisfied I should make an order in those terms. In my view the orders speak for themselves. The father must comply with those orders. I am however prepared to make an order requiring the father to immediately return C to the mother’s care in the event that C determines to take matters into his own hands and somehow makes his way to the father’s home.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 March 2016.

Associate: 

Date:  18 March 2016