Lansdowne and Shannon

[2013] FCCA 1638

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANSDOWNE & SHANNON [2013] FCCA 1638

Catchwords:
FAMILY LAW – Parenting and property – extent to which Expert’s Report should influence interim proceedings.

Legislation:
Family Law Act (1975), s.60CC(2A)

Applicant: MS LANSDOWNE

Respondent: MR SHANNON

File Number: SYC 370 of 2013

Judgment of: Judge Altobelli

Hearing date: 16 August 2013

Date of Last Submission: 16 August 2013

Delivered at: Sydney

Delivered on: 16 August 2013

REPRESENTATION

Solicitors for the Applicant: Kyle Family Lawyers

Solicitors for the Respondent: Hamish Cumming Family Lawyers

ORDERS

1. The father forthwith contact Relationships Australia on (omitted) and arrange to attend and complete the course, “Taking Responsibility: a Course for Men”. 

2. The mother be permitted to provide a copy of Ms B’s report to her Unifam therapist for counselling purposes.

3. The children X born (omitted) 2004 (“X”) and Y born (omitted) 2006 (“Y”) live with the mother.

4. The children spend time with the father during school terms as follows: 

   (a)Each alternate weekend, commencing on the first weekend of term, from after the children’s Saturday morning dance classes until 4pm Sunday when the father shall return the children to the mother’s home; and

   (b)Each Tuesday commencing on in the second week of term, when the father will collect Y from school at 3.25pm and X from school at 4.25pm and return the children to the mother’s home at 7pm.

5. During term school holiday periods, the children will spend time with the father from 9am on the first Saturday after the end of term until 7pm the following Tuesday; with the mother to deliver the children to the father’s home at the start of the time and the father to return the children to the mother’s home at the end of the time.

6. During the 2013/2014 Christmas school holiday period, as follows:

   (a)From 9am on Saturday 21 December until 4pm on Monday 23 December;

   (b)From 9am Saturday 4 January until 7pm on Tuesday 7 January;

   (c)From 9am on Wednesday 22 January until 7pm on Saturday 25 January;

   With the mother to deliver the children to the father’s home at the start of the time and the father to return the children to the mother’s home at the end of the time. 

7. The children will spend time with the father for special occasions, as follows:

   (a)On Father’s Day if not already with the father, from 9am until 4pm, with the mother to deliver the children to the father’s home at 9am and the father to return them to the mother’s home at 4pm.

   (b)On each child’s birthday if not already with the father, from 3.30pm until 7pm, with the father to collect the children from school if a school day, and otherwise with the mother to deliver the children to the father’s home at 4pm and the father to return them to the mother’s home at 7pm.

   (c)On the father’s birthday if not already with the father, from 3.30pm until 7pm, with the father to collect the children from school if a school day, and otherwise with the mother to deliver the children to the father’s home at 4pm and the father to return them to the mother’s home at 7pm.

8. The father shall ensure that any clothing, shoes and other items the children bring with them when they spend time with him, are returned to the mother with the children or, if accidentally left behind, within 24 hours of returning the children to the mother.

9. The father is at liberty to communicate with the children by telephone between the hours of 6.30pm and 7pm on Thursday each week. 

10. Each parent shall notify the other as soon as reasonably practical if either of the children become ill or injured such that the child needs to attend a doctor, such notice to be by way of telephone in the case of an emergency and otherwise by email.  

11. Each parent shall keep the other parent informed of his/her residential address, telephone number and email address.   

12. If the mother becomes aware of an invitation for either child to attend a birthday party or other special occasion on a day the child is otherwise to spend time with the father pursuant to these orders, she shall notify the father by email as soon as possible but within 24 hours, and the decision as to whether the child will attend the occasion shall be made by the father having consideration for the child’s wishes.       

13. Each parent be restrained and injunctions be granted restraining both parents from doing any of the following:

    (a)denigrating the other parent to or within hearing distance of the children or allowing any other person to do so;

    (b)denigrating the other parent either verbally or in writing;

    (c)communicating with the children or in the presence of the children about the court proceedings or any conflict or dispute between the parents;

    (d)contacting the other parent in writing or otherwise for the purpose of altering the changeover arrangements fixed by these orders, except in the case of an emergency or, in the case of the father, to arrange to return the children to the mother’s care at an earlier time than the time ordered;   

    (e)enrolling either child in any new extra-curricular activity that impacts on the other parent’s time with the children, without the prior written consent of the other parent; and

    (f)making any major decision concerning the care welfare and development of the children without the other parent’s consent or court order.

14. The proceedings be transferred to the Family Court of Australia at Sydney on a date to be fixed by that Court.

15. The hearing of the parenting matter be expedited if at all possible.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 370 of 2013

MS LANSDOWNE

Applicant

And

MR SHANNON

Respondent

REASONS FOR JUDGMENT

1. This application is about two children, X, who is nine, and Y, who is six.  The applicant is their mother.  She is 44 years old and describes herself as a (occupation omitted).  The respondent is the children’s father.  He is 44 years old and describes himself as a (occupation omitted).  They cohabited in 2001, married in 2004 and separated in 2011.  The substantive proceedings relate to both property and parenting. 

2. This case bears all the indicia, unfortunately, of a case that is complex.  The parenting issues are difficult.  It seems as if the expert evidence will be contested.  The property issues have been, for all practical purposes, unmanageable, as is evidenced by the fact that now a second conciliation conference has been vacated.  On top of all of this complexity, at least the parenting issues are urgent.  And with this contextual background, it is unsurprising, perhaps, that this Court will transfer the matter to the Family Court of Australia where it might have a chance for an earlier hearing, at least in respect of the parenting matter.  Certainly the attributes of complexity are well and truly present.

3. The complexity of the parenting issues is, in fact, reflected by the fact that the parents themselves agreed to engage Ms B to prepare a Part 15 Expert’s Report even before an interim hearing was held.  The order appointing Ms B was made on 5 June 2013.  At one level, the issues are quite narrow, that is, the issues before the Court today, when and under what circumstances should the children’s time with their father progress to extended overnights.  The complexity of this family and its dynamics is reflected by the fact that Ms B’s report extends to 50 pages. 

4. Whilst both parents have filed affidavit material in support of their respective proposals, the real focus of the present decision is the extent to which Ms B’s report should influence the further interim orders.  The father, who advances a proposal which he says is consistent with Ms B’s recommendations, says the Court should give the report substantial weight and extend his time with the children in accordance with his proposal.  The father’s proposed minutes of order are reproduced in Schedule B.

5. The mother, who advances a proposal which seeks, in effect, to maintain the status quo of each alternate weekend from Saturday to Sunday, plus other days in accordance with her proposal, says that the Court should not implement the report’s recommendations until it has been tested.  The mother’s proposed minutes of order are reproduced in Schedule B.

6. Ms B’s report is dated 28 June and was received by the Court on 18 July 2013 and released on that date.  By way of summary, Ms B recorded positive observations both of the children and of the parents.  She noted that both children seemed to be positive and close to both parents.  Nonetheless, it was clear that the mother was the main attachment figure.  However, and importantly, she said that, in her opinion, there was no overly dependent or enmeshed relationship evident between the mother and the children. 

7. She observed the father’s relationship with the children to be close and warm.  She noted no issues pertaining to decision-making.  There, she noted that there was an issue about the extent to which the father had financially maintained the children.  She described the mother’s parenting capacity as excellent, though she tended to minimise the extent to which the children might have been affected by the parental conflict and perhaps minimised the desire of the children to have a relationship with their father.  Ms B described the father’s parenting capacity as adequate, but observed that he was less equipped to meet their emotional needs.  She noted that the father agrees that some of his volatile and angry outbursts occurred in front of the children. 

8. In terms of recommendations, Ms B said that the father’s proposal for five overnights per fortnight was deleterious to the children, who have only been away from their mother for two night blocks.  She said the children would find such a proposal emotionally taxing and she said that, in order to get to the point where they could have extended stays, this would need to be done very sensitively and gradually implemented.  However, in relation to the mother’s proposal of the maintenance of the status quo, she also described that as equally deleterious. 

9. She was somewhat critical of the mother’s attitudes, referring to her intense style of parenting, her hypervigilance.  She noted that her experience of the marital relationship was negative, though there were positive things as well.  In relation to the father’s attitude, she said that his attitude in relation to the children was somewhat mixed and that there were some patterns of immaturity in his parenting, particularly in terms of his response to the mother’s parenting style. 

10. Importantly, in the context of the present application, Ms B observed that these children have been exposed to family violence, which the father concedes, but she believes things have ameliorated.  She emphasised the need to separate the parents at changeover and to make orders that were unambiguous or as unambiguous as is possible.  She felt quite clearly that there was no need for the children to engage in counselling, a matter of difference between the parents.  She concluded by recommending that the Court should give due consideration to the father’s proposals and of extending time, but emphasises the need for changeovers to be done in a way to minimise conflict. 

11. I think the key paragraphs in Ms B’s report are the following:

    114.The father’s proposal entails the children spending from after school Thursday until before school the following Tuesday in his care. This would mean that the children would have five nights consecutively without spending time with their mother. This is in contrast to the current arrangement where the children spend two consecutive nights away from their mother. In my view such a stepped up arrangement is likely to have some deleterious impact on the children who have spent very little time apart from their mother. Although the children’s age and developmental stage means it is likely that they would be able to tolerate separation from their mother well, in this case I think a number of things need to be taken into consideration. It is likely considering the acrimony to which these children have been exposed that they will find such a lengthy separation from their mother to be emotionally taxing. That is not to say that the Court should not give due consideration to this proposal, it is just that its implementation may need to be sensitively attuned to the children’s needs. It is possible, however that if the children are suddenly thrust into this arrangement with little preparation then they may pine for their mother, their behaviour may regress and they may act out or internalise their emotional experience. In my view, if the children are to spend more extended time apart from their mother then this time needs to be organised in a graduated way.

115. If the Court accepts the mother’s proposal, then the status quo will remain without the children spending any further time with their father. Although this is not a change to their circumstances, retention of the status quo means that the children’s opportunity to develop an independent relationship with their father will be thwarted. Similarly, they will be unable to experience an alternate view of their father as being a safe, reliable and predictable parent in their lives. I think this too will have a deleterious impact on their development because both X and Y crave an ongoing relationship with their father and his involvement in their everyday lives.

h) Any family violence involving the children or a member of the child’s family

118.Undoubtedly these children have been exposed to family violence as documented by both the parents. When questioned about this I found the father gave a full and frank disclosure of his own contributions to the family violence. He told me that he behaved in a manner which was mean spirited, controlling and verbally abusive of the mother at times. He also told me, with regret, that at times he behaved in this manner in front of the children. The father indicated to me that he was aware of the impact of the family violence. However, I note that most of the experiences of arguments between the parents occurred around the context of parenting. It was the father’s view that he was excluded from parenting decisions and on taking on any particular independent role with the children. These extreme altercations between the parents appear to have settled somewhat subsequent to separation although I note there have been a number of minor altercations around time of change over. The father’s frustration appears to have ameliorated somewhat now that he is able to experience independent time with the children and has been able to forge an independent relationship with them. It seems to me that currently the frustration between the parents revolves around the degree to which they should be allowed to spend time with the father.

119. It is my strong recommendation that in order to further protect the children from episodes of family violence that whatever parenting arrangements are put in place that these should involve the parents spending as little time together as possible. To this end, I would recommend any regime which had drop off and pick up occurring at a neutral venue in order to protect the children from potential altercation between the parents. It is also my strong recommendation that “spend time with” arrangements are clearly stipulated so that there is no room for ambiguity or interpretation between the parents. Provided that these set of circumstances are adhered to, then I suspect that the relationship between the parents will settle down. Despite the verbal altercations between them and the regrettable behaviour displayed by the father, I think that he and the mother have the capacity to move forward from this in a mature way and to each exert a positive influence on the children’s lives. I do not have any reason to suspect that the father poses a danger or a threat to the children and nor do I have any reason to interpret that the children have any fear towards or of their father. In fact, I think apart from the regrettable parental interactions, I think the children’s experiences of their father have been extremely positive and are developing well.

120. It is my opinion that the Court should give due consideration to the father’s proposals and particularly to the extending of time that the children spend with him. As stipulated earlier, I think that a sensible parenting arrangement would be one where drop off and pick up occurred at school or at another neutral environment and did not involve a parent to parent change over.

1. Counsel for the mother, in support of her proposal, emphasised the role that s.60CC(2A) applies. Counsel’s submission was that what this does is, in effect, prioritise the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

2. He submitted that the report’s recommendations are puzzling in the absence of a detailed analysis of the impact of family violence on the children.  Counsel was able to take the court to many paragraphs in the report that deal with the father’s own concessions about family violence either directly or indirectly: for example, paragraphs 57, 58, 59, 60.  Indeed, they are far too many to enumerate here though the transcript will reveal the full extent of this. 

3. Counsel’s submissions were, in effect, as follows.  Firstly, that the father’s concessions about family violence or admissions about family violence were accepted by Ms B as full and frank despite the starkly different version that is lead by the mother and he contended that it was quite inappropriate for Ms B to conclude that the father’s concessions were “full and frank”.  Secondly, counsel said even if the father’s admissions were full and frank, it raises serious issues of concern in the context of a statutory scheme such as the one to which I’ve made reference that prioritises family violence over meaningful relationship. 

4. As counsel submitted, the problem the court faces is that the court will need to make findings about the nature and extent of the family violence and it is possible that it will find – indeed, counsel submits that the court will find – that if the mother’s account of the violence is accepted and it is far greater than what the father admitted, then that raises quite problematic issues both in terms of the children’s exposure to violence and potentially of Ms B’s report. 

5. In these circumstances, he contends that the court must have reservation in implementing Ms B’s report and certainly must proceed very cautiously and should, in any event, attempt to expedite the final hearing.  Mrs Adams, on behalf of the father submitted that these are older children who have already had overnight time.  The report suggests that the children crave a relationship with their father.  The report deals with the family violence allegations comprehensively and makes recommendations for more time in a gradual manner, something which the father’s minute achieves, she submits. 

6. In these circumstances and in order to consolidate and enhance the relationship between the father and the children, more time is warranted and she points to the careful framing of the father’s orders in terms of increasing time.  The concerns that this court has about the acknowledged family violence and its impact on both the children and the mother leads the court to accept the submissions made on behalf of the mother.  The expert evidence in this case needs to be more thoroughly tested before – in this court’s opinion anyway – the children’s time with the father should be extended. 

1. The court does not, at this point anyway, understand how the recommendations in the report stand even in light just of the admitted family violence and the issues about the father’s immaturity.  In the context of a statutory scheme that clearly prioritises protecting children from the risk of harm of family violence over the importance of a meaningful relationship, not increasing the children’s time with their father will do no harm to the nature of the relationship that he already has with them. 

2. By contrast, increasing the children’s time with their father in circumstances where the impact of family violence on them has not, in this court’s opinion, been properly explored, raises the unacceptable risk of further harm to them.  In the circumstances and even having regard to Ms B’s report, as comprehensive as it is, until it is tested and until these concerns are properly put to Ms B, the court is not ready to implement her proposals.  The better course would be to seek to expedite the final hearing of this matter so that the evidence can be tested. 

3. The other standout issue in the application related to whether the children should continue to attend counselling or not.  The mother says they should and that they benefit from it.  The father says that they should not.  Ms B says that there is no need for counselling.  In the circumstances, I must say the court finds it hard to cavil with Ms B’s recommendation.  And it would seem, on a balancing of risks analysis, that the risk to the children if counselling is stopped is not that great. 

4. Accordingly, the court will accept her recommendations in this regard.  In terms of the orders that are proposed, the orders will largely be in accordance with the minute of orders sought by the mother.  I am otherwise going to transfer this matter to the Family Court of Australia with my recommendation that the hearing of the parenting matter, at least, be expedited.  The matter will be listed on a date to be fixed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  16 October 2013

SCHEDULE A

Fathers Proposed Minute of Order

1. That the children, X born (omitted) 2004 and Y born (omitted) 2006 (“the children”) shall live with the Mother.

2. That the children shall spend time with the Father as follows:-

   (a)For a period of three months from the date of the Order:-

   (b)Each alternate weekend from after school Friday until 3pm Sunday; and

   (c)Each Tuesday from afterschool until 7pm

3. Commencing three (3) months from the date of the Interim order:-

   (a)In week 1 from after school Thursday until before school Friday and each alternate Thursday thereafter.

   (b)In week 2 from after school Tuesday until 7pm and each alternate Tuesday thereafter

   (c)In week 2 from afterschool Friday until before school Monday and each alternate weekend thereafter.

4. In school holiday periods:-

   (a)For half of each short school holiday period at the conclusion of Terms 1, 2 and 3 by agreement and failing agreement the first half; and

   (b)For two weeks in the 2013 – 2014 long school holidays by agreement and failing agreement from 23 December 2013 for 14 days.

5. Orders 3 and 4 are suspended during school holiday periods.

6. School holidays are defined as commencing after school on the last day of term and concluding at 9am on the day pupils return to school at the commencement of the next term.

7. That the Mother shall forthwith do all things necessary to finalise the counselling being provided by (omitted) to the children.

8. Neither party shall commence or involve the children in any counselling or therapy without the prior written consent of the other party.

9. That each party shall advise the other as soon as reasonably practical of any medical emergency in relation to the children while the children are in their care.

10. Each party will notify the other of any attendance by the children upon a medical practitioner and notify them of any diagnosis and treatment plan.

11. Neither party shall enrol the children in any school or after school activity that impacts on the other parent’s time without the prior written consent of the other party.

SCHEDULE B

Mother’s Proposed Minute of Order

1. The mother be permitted to continue facilitating the children’s attendance for counselling with Ms I of (omitted).

2. The father forthwith contact Relationships Australia on (omitted) and arrange to attend and complete the course, “Taking Responsibility: a Course for Men”. 

3. The mother be permitted to provide a copy of Ms B’s report to her Unifam therapist for counselling purposes.

4. The mother be permitted to continue facilitating the children’s attendance for counselling with Ms I of (omitted).

UNTIL FURTHER ORDER

1. The children X born (omitted) 2004 (“X”) and Y born (omitted) 2006 (“Y”) live with the mother.

2. The children spend time with the father during school terms as follows: 

   a)Each alternate weekend, commencing on the first weekend of term, from after the children’s Saturday morning dance classes until 4pm Sunday when the father shall return the children to the mother’s home; and

   b)Each Tuesday commencing on in the second week of term, when the father will collect Y from school at 3.25pm and X from school at 4.25pm and return the children to the mother’s home at 7pm.

3. During term school holiday periods, the children will spend time with the father from 9am on the first Saturday after the end of term until 7pm the following Tuesday; with the mother to deliver the children to the father’s home at the start of the time and the father to return the children to the mother’s home at the end of the time.

4. During the 2013/2014 Christmas school holiday period, as follows:

   a)From 9am on Saturday 21 December until 4pm on Monday 23 December;

   b)From 9am Saturday 4 January until 7pm on Tuesday 7 January;

   c)From 9am on Wednesday 22 January until 7pm on Saturday 25 January;

   With the mother to deliver the children to the father’s home at the start of the time and the father to return the children to the mother’s home at the end of the time. 

5. The children will spend time with the father for special occasions, as follows:

   a)On Father’s Day if not already with the father, from 9am until 4pm, with the mother to deliver the children to the father’s home at 9am and the father to return them to the mother’s home at 4pm.

   b)On each child’s birthday if not already with the father, from 3.30pm until 7pm, with the father to collect the children from school if a school day, and otherwise with the mother to deliver the children to the father’s home at 4pm and the father to return them to the mother’s home at 7pm.

   c)On the father’s birthday if not already with the father, from 3.30pm until 7pm, with the father to collect the children from school if a school day, and otherwise with the mother to deliver the children to the father’s home at 4pm and the father to return them to the mother’s home at 7pm.

6. The father shall ensure that any clothing, shoes and other items the children bring with them when they spend time with him, are returned to the mother with the children or, if accidentally left behind, within 24 hours of returning the children to the mother.

7. The father is at liberty to communicate with the children by telephone between the hours of 6.30pm and 7pm on Thursday each week. 

8. Each parent shall notify the other as soon as reasonably practical if either of the children become ill or injured such that the child needs to attend a doctor, such notice to be by way of telephone in the case of an emergency and otherwise by email.  

9. Each parent shall keep the other parent informed of his/her residential address, telephone number and email address.   

10. If the mother becomes aware of an invitation for either child to attend a birthday party or other special occasion on a day the child is otherwise to spend time with the father pursuant to these orders, she shall notify the father by email as soon as possible but within 24 hours, and the decision as to whether the child will attend the occasion shall be made by the father having consideration for the child’s wishes.       

11. Each parent be restrained and injunctions be granted restraining both parents from doing any of the following:

    a)denigrating the other parent to or within hearing distance of the children or allowing any other person to do so;

    b)denigrating the other parent either verbally or in writing;

    c)communicating with the children or in the presence of the children about the court proceedings or any conflict or dispute between the parents;

    d)contacting the other parent in writing or otherwise for the purpose of altering the changeover arrangements fixed by these orders, except in the case of an emergency or, in the case of the father, to arrange to return the children to the mother’s care at an earlier time than the time ordered;   

    e)enrolling either child in any new extra-curricular activity that impacts on the other parent’s time with the children, without the prior written consent of the other parent; and

    f)making any major decision concerning the care welfare and development of the children without the other parent’s consent or court order.

12. The father be restrained by injunction from causing or allowing the children to have contact with the paternal grandfather.