LANGLEY & LANGLEY

[2016] FamCA 721

FAMILY COURT OF AUSTRALIA

LANGLEY & LANGLEY [2016] FamCA 721

FAMILY LAW – CHILDREN - Parenting – Equal shared time – where the father seeks an increase of time with the children – where father seeks equal time – where mother and Independent Children’s’ Lawyer oppose increase in time – where fathers drug use is a critical factor – where psychiatric report favours increase in time if drug use is deemed to be a non-issue or if it was managed – where personality issues of the mother cannot be determined in this application – where the parties communication which would support equal time cannot be determined in this application – where father seeks the increase of time to be tried or trialled before the trial – where father seeks coercive orders for the entire family to relocate to E Town – where consideration of the rule in Rice and Asplund – where there are no justifying circumstances – where increase in time is not in the best interests of the children – where consideration of section 60CC factors – where these interim proceedings do not foreclose the consideration at trial – where the fathers application dismissed

FAMILY LAW – Costs – where costs are reserved to trial

Family law Act 1975 (Cth) s 60CC

Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Langley

RESPONDENT: Ms Langley

INDEPENDENT CHILDREN’S LAWYER: Ms Wallace

FILE NUMBER: TVC 968 of 2014

DATE DELIVERED: 11 August 2016

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 11 August

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Raeburn

SOLICITORS FOR THE RESPONDENT: Macdonnells Lawyers - Townsville

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: McDonald & Leong

Orders

1. The father’s Application in a Case file 4 August 2016 be dismissed.

2. The costs of the application be reserved to the trial of this matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Langley 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 CAIRNS

FILE NUMBER: TVC 968 of 2014

Mr Langley

Applicant

And

Ms Langley

Respondent

ex tempore

REASONS FOR JUDGMENT

1. By application in a case filed 4 August 2016, the father seeks orders increasing the time which he spends with the parties’ two children, who are the subject of these proceedings.  The increase which he seeks is, as I understand it, from a present regime of alternate weekend and one overnight midweek visit with the children, to equal shared care.  The mother and the independent children’s lawyer oppose that increase in time, at least at this point in time.

2. The matter is listed for trial over five days before me in Townsville on 17 November 2016.  The history of the proceedings is a little complex.  It appears as though they were commenced in early 2014, and at a relatively early stage, on 8 May 2015, a family report was prepared by Mr B, a psychologist.

3. At the conclusion of that report, he made some recommendations as follows.  At paragraph 154, he said:

   If the drug use – and I interpolate of the father – is deemed to be a non-issue, or if the drug use was an issue, and he then managed a substantial period of time drug free, which would be based upon random drug tests, then modifications to the alternative weekend arrangements could be put in place.

4. He then said, at paragraph 156:

   Initially, and additional to the alternate weekend arrangement, I would recommend including one night during the week.  This would allow for contact between the children and the father without such a significant gap.

5. Then, at paragraph 159, he said:

   In my view, if the drug situation is resolved, then an ever-increasing level of contact between the children and the father should ensue, perhaps culminating in a full-time shared care arrangement by the time Grace commences primary school.  This would give a substantial period of time of adjustment and gradation to be introduced to the timetable of increased contact.

6. At the time of Mr B’s report, it appears as though the father was spending time with the children on a supervised basis.  Consequent to the report, on 29 May 2015, the father filed an application in a case in which he sought orders on an interim basis for an equal shared care arrangement.

7. However, on 19 June 2015, in the face of that application, he consented to interim orders which saw the present regime of alternate weekends and Wednesdays in the midweek, rather than the equal time which he was then seeking. 

8. Although not in his material before me, during the course of his submissions, the father, who was self-represented, indicated that he consented because he thought that there would be a progressive review of that order, with likely increases of time ordered by the Court over time.

9. That is a little difficult to understand, given that also in the orders of 19 June 2015, there were trial directions, with the matter being listed for a three day trial.  However, ultimately, his mistaken view is of little consequence.

10. Then, notwithstanding the consent orders of 19 June 2015, on 30 October 2015 the father filed a further application in a case in which he again sought the increase of time to the shared care arrangement he now yet again seeks.  That application was made returnable before the Federal Circuit Court on 1 February 2016.

11. However, and a little confusingly, on 16 November 2015 it appears as though the matter was listed before Judge Coker and indeed, by orders made that day the father’s application in a case filed 30 October 2015 was in fact listed for hearing at the trial of the proceedings, which were listed as a reserve trial for 7 March 2016.

12. Next, on 9 February 2016, a psychiatrist, Dr C, produced a psychiatric report in relation to both parties.  In his recommendations, he was supportive, it would seem, of an increase in time spent with the children/  Although he did not, so far as I can see, articulate any particular proposal, which is scarcely surprising, since he was reporting from a psychiatric perspective.  However, it seems clear that he prepared a report which is substantially favourable to the father and, at least on my present understanding of it, not particularly favourable to the mother. 

13. Although it is not clear on the material before me how it then came about, given that the matter was listed for a reserve trial on 7 March 2016 before Judge Coker, in fact on 24 February 2016 – ie, some two weeks prior to the reserve trial listing – the matter was transferred from that court to this court.  Necessarily, that transfer included any unresolved applications of an interim nature.  On one view, however, the father’s application in a case filed 30 October 2015 was listed to be heard at trial. 

14. Then, on 28 April 2016, I conducted a trial management hearing at which the matter was listed for trial in the November 2016 sittings in Townsville.  The father did not then press any application for an increase in time, nor, so far as I can recall, agitate to have the then unresolved application in a case of 30 October 2015 separately determined.

15. In accordance with the principles established in Goode & Goode (2006) FLC 93-286, it is critical that I set out the parties’ proposals, as I have already done, and identify any uncontroversial or agreed facts. There do not appear to be many of those that are relevant to this application. As I have already indicated, the chronology of the father’s increase in time with the children commenced with supervised time initially, I am told without contradiction, at a contact centre for two hours each week, but then progressed to alternate weekend time supervised by his parents, that time including one overnight.

16. As I have indicated, that then progressed to the consent orders on 19 June 2015, which saw the father’s time no longer required to be supervised by his parents and increased to unsupervised time on a midweek night as well.  That is the current prevailing situation.

17. On the other hand, there are many matters which remain controversial between the parties, including the father’s drug use, which, as I have already observed, was a critical consideration to Mr B’s recommendation in paragraph 154 of his family report.

18. To restate it, Mr B was of the view that modifications to the arrangements could be put into place:

    …if the drug use is deemed to be a non-issue or if the drug use was an issue, and the father then managed a substantial period of time drug free.

19. As I have indicated, Mr Raeburn, who appeared as counsel for the mother, made it plain that drug use, or at least historical drug use, is still to be an issue which is to be pursued in relation to the father, and indeed, in fairness, the father indicated that historical drug use of the mother was likely to be a part of his argument at trial too.

20. Additional matters which are in controversy, and hence cannot be determined by me today, include the extent to which the mother may suffer some personality issues and, the extent to which the parties have a level of communication which would support an equal time regime such as that for which the father contends.

21. In essence, with the trial looming in November, the father’s argument was that, given the seeming support which he presently perceives he has from Mr B and Dr C for an equal shared care arrangement, that should be tried, or trialled, before the hearing proceeds before me in November.

22. However, I pressed counsel for the mother and the Independent Children’s Lawyer as to whether the absence of any trial of such a regime would be a basis for opposing the orders which the father seeks on a final basis.

23. As to that, Mr Raeburn conceded that whilst the mother opposes a fifty-fifty care regime and will do so at trial, no part of her argument against such orders will rely upon the absence of a trial of such a regime to the date of any hearing.  Likewise, the Independent Children’s Lawyer submitted that the lack of a trial of a fifty-fifty care regime was not an argument she will mount against such orders being made at trial.

24. Against those concessions, the trial of an equal shared care regime does not present as attractive an argument as it otherwise might have done.  Further, there are a number of matters which are troubling in relation to the revisiting of the children’s living arrangements, not least of which is that the father now proposes that there be coercive orders requiring the entire family, by which I mean the mother, himself and the two children, to relocate away from the D Town district to E Town.

25. Mr Raeburn identifies that if the father were to relocate himself without the children, if there had been a trial of equal shared time, which could not thereafter prevail because of the distance between the father and mother, that would likely cause significant disruption in the children’s lives.

26. Similarly, he argued that even if the father did not relocate to E Town at the conclusion of the trial without the children, there is still a significant prospect that the father may not achieve the equal cared share arrangement which he wants at that trial, and in which case, there would be further alterations to the children’s living arrangements at that time.  Those are arguments which I give some weight and, indeed, greater weight because of the concession which has been made.

27. The rule in Rice & Asplund is intended to restrict re-litigation of children’s matters, including interim orders, unless there has been a significant or justifying change in circumstances since the original orders were made.  It is difficult to identify any such change of facts since the consent interim orders were issued on 19 June 2015.

28. True it is that, since then, the report of Dr C has been made available, and on 24 February 2016, there was a transfer of the proceedings to this court, but those are not, in my assessment, matters of a moment that justify revisitation of the consent orders made on 19 June.  I say that particularly because the father’s application in a case filed only on 29 May specifically sought those orders and, necessarily, the orders which he consented to on 19 June were made in full knowledge that the orders which he was then seeking, were not those to which he was then consenting.

29. As I say, Rice & Asplund was intended to ensure that there is not a ceaseless agitation of parenting arrangements by way of successive interim applications unless there are justifying circumstances. I am not satisfied that there are justifying circumstances in this case. However, if I am wrong as to that, then I am not satisfied that such an increase in time, at least at this time, would be in the best interests of the children. In considering the section 60CC factors germane to determining where the best interests of the children lie, I am somewhat impeded by the fact that the family report of Mr B is now of some vintage, although I note it is to be shortly updated. Nonetheless, doing the best I can on the somewhat outdated material that are before me, by reference to the s 60CC factors, I conclude as follows.

30. Firstly, there is no reason to doubt that the children do not benefit from having a meaningful relationship with both of their parents.  Indeed, as I understand the parties’ proposals, it is consistent with a concession that, indeed the children would benefit from having a meaningful relationship with them.  The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  The material that was relied upon by the parties does not speak with any great volume to that consideration. 

31. I then turn to the additional considerations.  I have no current views expressed by the children and, in any event, given their relatively young ages, would give them little weight.  It is plain that the children appear to enjoy a good relationship with both of the parents, although I note, albeit it is not a conceded fact, that Dr C was somewhat critical of the mother’s psychological functioning and her views in relation to the father and, of course, there is a risk that she may expose the children to those views and influence their relationship with him.

32. As to s 60CC(3)(c), there is no criticism, at least on the material before me, that these parents have not taken the opportunity to participate in the children’s lives and spend time and communicate with them to the maximum extent that the orders of the time permitted. There is no material before me which would enable me to determine any criticism of the father in relation to child support. Section 60CC(3)(d) is relevant because, as Mr Raeburn indicated, the effect on the children of the father’s proposal at this point is not able to be determined, at least on the state of the family report coming from 2015, and in any event, if those changes had to be undone, one could conjecture that there may be some adverse effect on the children.

33. Section 60CC(3)(e) does not appear to be relevant. Section 60CC(3)(f) is relevant and I note the criticism of Dr C of the mother’s capacity to provide for the children’s emotional needs and his somewhat glowing view of the father’s capacity. However, as I have indicated, the mother does not concede the validity or accuracy of that opinion and it is a matter that I will need to determine at trial.

34. The lifestyle and background of the children’s parents is a live issue in that it is said that one or both of them have a history of illegal drug-taking. That is not a matter I can determine on these interim proceedings, although, plainly, the allegations are serious. There is, as I understand, at least on the material before me today, no significant criticism of either party in relation to their attitude to the children, albeit again I notice Dr C’s criticism in relation to the mother’s emotional regulation and features. Family violence does not appear to be a matter that is relevant, at least to determining the proposed increase in time, if any, in relation to these children. The balance of s 60CC(3) factors I have considered but do not give any weight to in these circumstances.

35. In weighing those matters in the balance, I am specifically mindful of the following matters:

    (1)These proceedings are listed for trial on 17 November 2016, only some three or so months from today.

    (2)At that trial, the issues that are presently in dispute between the parties will be litigated and ultimately resolved.

    (3)If there were to be an increase in time now, whilst that may permit a trial of equal shared time, if there were to be other orders made at trial that were not equal shared care, there would have been some disruption in the children’s lives.

    (4)Neither the mother nor the Independent Children’s Lawyer intend to agitate at trial that the lack of a trial of an equal shared care regime should tell against such an order being made on a final basis, although I note the mother will oppose it on other grounds.

36. Therefore, weighing those matters in the balance and giving them weight as I do, I am not satisfied that the increase of time proposed by the father would presently be in the best interests of the children.  In making that observation, I expressly say that that does not foreclose the consideration of the matter at trial as, plainly the imminence of the trial is a major factor in my thinking as to why those orders are not presently in the best interests of the children.  It will remain a matter for trial as to whether or not the orders contended for by the father should nonetheless be made, if they are then in the best interests of the children, on a final basis.

37. I will reserve the costs of the father’s application in a case to trial but, otherwise, the father’s application in a case filed 4 August 2016 will be dismissed.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 August 2016.

Associate: 

Date:  11 August 2016