Leeds and Leeds

[2008] FamCA 746

FAMILY COURT OF AUSTRALIA

LEEDS & LEEDS [2008] FamCA 746

FAMILY LAW – CHILDREN – Interim parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Leeds

RESPONDENT: Ms Leeds

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 3698 of 2007

DATE DELIVERED: 28 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 28 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HOULT

SOLICITOR FOR THE APPLICANT: INGPEN & BENT

COUNSEL FOR THE RESPONDENT: MR AMBROSE

SOLICITOR FOR THE RESPONDENT: SAMANTHA WARD PTY

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

1. That until further order, paragraph 2 of the orders made on 29 March 2006 be varied so that the husband spends time with the child R from 9.00am on Saturday until 7.00pm on Sunday in each alternate weekend.

2. That the husband spend time with the said child during the forthcoming school holidays from 9.00am on 20 September 2008 until 7.00pm on Sunday 28 September 2008.

3. For the purposes of paragraphs 1 and 2 hereof, the husband collect the child from the wife’s residence at the commencement of the period and return him to the wife’s residence at the conclusion of the period.

4. That the parties attend a POPS program as soon as practicable.

5. That the reasons for judgment this day upon being published, be made available to the parties and insofar as it is necessary to do so, the Independent Children’s Lawyer may provide a copy of those reasons to any expert witness for the purposes of the forthcoming final hearing.

6. That all outstanding applications be adjourned for final hearing part-heard before me on 19 January 2009 at 10.00am as a two day matter.

7. That the matter be listed for mention before me at 9.30am on 20 December 2008.

8. That unless otherwise impracticable, Registrar Sikiotis be appointed as the docketed registrar responsible for the management of the case.

9. That by 4 pm on 5 December 2008 the applicant file a document setting out with precision what orders are being sought.

10. That by 4 pm on 12 December 2008 the respondent file a document setting out with precision what orders are being sought.

11. That by 4 pm on 5 December 2008 the applicant file and serve upon all other parties, the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day.

12. That by 4 pm on 5 December 2008 the applicant file and serve on all other parties a financial statement that complies with chapter 13 of the Family Law Rules.

13. That by 4 pm on 12 December 2008 the respondent file and serve upon all other parties, the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day.

14. That by 4 pm on 12 December 2008 the respondent file and serve upon all other parties a financial statement that complies with chapter 13 of the Family Law Rules.

15. That by 4 pm on 28 November 2008 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

16. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 5 December 2008.

17. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

18. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to vacate the final hearing date and strike the case out of the list with a right of reinstatement upon conditions to be determined by the registrar;

    (b)or refer the case to the trial judge for directions as to its future management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

19. That the trustee of the relevant superannuation fund be served before the hearing with a copy of the precise terms of any superannuation splitting orders being sought.

20. That the practitioners for the parties file and serve electronically by 4.00pm on 15 January 2008 the following:

    (a)a concise set of orders to be sought if difference from those already filed.;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

21. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3698  of 2007

MR LEEDS

Applicant

And

MS LEEDS

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Today was the first day of a less adversarial trial. 

2. The parties were represented as was the Independent Children’s Lawyer.  The parties participated in a significant way themselves.  They were sworn and their evidence has been given in relation to a number of issues that were canvassed.

3. Ms W is the family consultant and she produced her issues assessment the status of which has remained unclear but she gave evidence about what the problems were.

4. This case is about two children, a son R born in October 1996.  He is known as “[…]”.  The second child is a daughter, S, who was born in September 1995.  She is known as “[…]”.

5. Although the proceedings will show involvement around both children, the only issue relates to R.  S sadly, has no relationship of substance at the moment with her father.

6. The parties separated in 2005 and since that time, the children have lived with their mother.  There has been considerable litigation.

7. The parties began the trial with a statement of their positions in dispute.  Mr Hoult on behalf of the husband said that his client wanted to see R from Friday night through until Sunday night.  Mr Ambrose on behalf of the wife said that notwithstanding what had been written in the family consultant’s assessment, the time between father and son should only be from Saturday morning to Sunday night.

8. After consultation with the family consultant, the Independent Children’s Lawyer told me that she adopted the view of the family consultant that the wife’s position should be made into orders on an interim basis.

9. On the face of those statements, the dispute is remarkably simple.  Nothing however could be further from the truth.

10. The parties do not communicate at all.  There is a clear understanding by R of his parents’ dislike for one another.  Their lack of communication and their conflictual relationship was seen by Ms W as contributing to R’s discomfort.

11. R currently has been diagnosed with ADHD although I was told that his father does not necessarily accept that diagnosis.  Whilst I can understand that there might be some dispute about that, the position became worse because the wife told me under oath that she has taken R to a paediatrician who has now prescribed him anti-depressants for depression.  Ms W said she was not surprised about that.  She made comment in her oral evidence that R has expressed suicide ideation.

12. As I said, on the face of it this is a simple matter but underneath lies a lurking problem of significant proportions.  Ms W said that the parties needed to resolve the problem for R’s sake.  She recommended and I have now ordered that the parties attend a POPS program. 

13. The factual dispute was not canvassed in any great detail.  One simple example of the dilemma was that the father who has had great difficulty accepting that any time should be reduced between he and his son said that R often asks him for more time and if he returns to the home earlier than the prescribed time, R wants him to continue driving.  He said that that was clearly indicating the time should be greater rather than reduced.  The mother in reply said that in her household, R never asks for extended time but quite the converse, complains about having to go with his father.  Ms W was she was not surprised about either of those situations.  It seems to me that it is a classic example of children telling their respective parents what they perceive the parents want to hear.

14. In a poignant question to Ms W, the father asked whether it might be better in the circumstances for R to live with him a full time basis.  Ms W replied that it would not.  She said that R’s attachment is with his mother and one of the most significant things about this child is that he needs a stable routine.  The combination of the attachment and the routine should be obvious. 

15. The other example which the father used in evidence was the fact that his son could perhaps stay with him on the Sunday night and then he would be able to deliver him to school on the Monday morning.  There is an hour’s drive involved in that but the father did not seem to be troubled about it.  The dilemma with that situation was as Ms W said, R is a child who needs a settled and routine life.  To go from an unusual position on a fortnightly basis to school rather than from his home base would be counterproductive.

16. Ms W said that she recommended the reduction from the current status down to alternate Saturday through to Sunday on the basis that not having to go on Friday night might make R more settled.  That is apparently a problem at the moment having regard to the obligations of R on a Friday night.  Mr Hoult asked Ms W why she had adopted that position where only some two weeks ago she had recommended to the parties that the status quo continue.  Ms W said that she had heard the proposal of the mother and having regard to what options she otherwise had, that was a very sensible solution.  She was very strong in saying that she was not troubled about the time between father and child so much as the quality of the relationship.

17. In a strongly impassioned plea, Ms W pointed out to the parties that if they did not present a united front to R, his problems could only worsen.

18. My view is that there is little insight from the perspective of either party.  The mother asked me at the conclusion of the day why I could not hear the whole case then.  I have indicated that I do not have anywhere near enough information and that I wanted to know exactly why the communication was as bad as it was.  To some extent that comes also from the fact that Ms W said that it may get to the stage where no contact should be occurring between father and son notwithstanding the very strong and loving relationship between them.  If the ultimate impact of any time is counterproductive to the physical and emotional wellbeing of this child, it has to be examined carefully.  I am not contemplating that situation at this stage in the hope that the parties using the POPS program can see that they need to present a united front to their son with the prospect that he will then feel far more settled.

19. All of the indications are however that the cold war will continue.

20. This is an interim order that I am making.  To his credit, the husband indicated to me after some deliberation that he would adopt the Saturday morning through to Sunday night position.  I accept that he does not want that nor does he see there is any basis for it but that for the hope of making R more settled, he would go along with it.  That is a significant step forward.  However, he also proposed that the wife do half of the travelling.  I have ruled against the husband in relation to that on the basis that that would be disruptive of the routine of R.  In addition, it might be better for R and his father to spend time in the car together at the conclusion of the day. 

21. There was also some debate about holidays but I have not made any significant orders other than fixing the dates.

22. As this is a parenting order that I am making and one to which the parties have not necessarily consented, it is important that it be based upon the best interests of R rather than on the best interests or desires of the parents.  Whilst the dispute may be minimal from one perspective, there is a huge gulf widening here that needs to be stopped for R’s sake.

23. When making an order of this nature, I am obliged to take into account the factors set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) as they are the determinative factors about what is in the best interests of the child.

24. I am satisfied for the purposes of s 60CC that there is currently a good and meaningful relationship between R and his father and that he is benefiting at the moment from what time he so spends. That however needs to be ultimately tested. It is important to look at the operative words of s 60CC(2)(a). The sentence commences with the words “the benefit”. What I want to examine in the final part of this hearing is whether or not there is a benefit to R in having a meaningful relationship with his father. That will be extremely important in assessing what orders I ultimately make. It is also important that R have a meaningful relationship with his mother and I need some evidence about how attached R is to his mother and having regard to R’s need for a routine, what needs he has. The parties can file affidavits in respect of that.

25. I do not know views of R and it may very well be that I should not take them into account.  I shall make an assessment as to how emotionally developed R is at the trial to determine that issue.

26. There is a distinct difference between the parties in relation to the nature of their respective relationships with R.  Each has a different view about discipline.  Each has a very significant different view about the way they should communicate with R.  In my view that issue is a critical one and needs to be resolved urgently.  If the parties cannot have a united approach to the way in which R is to be brought up notwithstanding they have significantly different times with him, it must confusing for a child whose life revolves around routine and as I understand it, an obsessive compulsive disorder.  I would be very interested to hear what the paediatrician says about that.  For the time being however, I understand that R has a significant amount of time with his mother and is clearly dependent upon her.

27. I have taken into account the willingness of each party to facilitate the relationship between R and the other parent.  I am satisfied that the wife is not endeavouring to reduce the time for any improper motive.  There is a significant debate to be had about just what needs R has to spend time with his father.

28. I am concerned about the fact that R will be puzzled why his time has been cut back from Friday night to Saturday morning but that is a matter that the parties will need to address in an age-appropriate way. 

29. There are no problems with the practicability of the orders that I make. 

30. I do not know enough about the capacity of each parent to provide for the emotional and intellectual needs of R.  Ms W said that there were some serious concerns about R’s emotional development and that is a matter that the parties will need to address in their final affidavit material.

31. I am obliged to take into account the attitude to R and the responsibilities of parenthood demonstrated by each of the child’s parents.  The parties clearly do not like each and do not want to communicate with each other at the moment.  That may be a strong statement but notwithstanding their protestations, nothing has occurred which would convince me at this stage that either has endeavoured to reduce the cold war environment.  I will be significantly examining the final hearing just what each party is doing about fostering the relationship with the other parent and words will not be sufficient.

32. There are no family violence issues about which I have been made aware for the purposes of these interim orders.

33. I have also taken into account s 60CC(4) and I note that each party has been contributing to the facilitation of the time with the other parent notwithstanding they have litigated since 2006.

34. As a parenting order, the question of equal shared parental responsibility applies.  Neither party wishes me to disturb that situation at this time notwithstanding the fact that there is not communication at all between the parties.  Notwithstanding the fact that the parties did not argue that issue, I am satisfied on the evidence that it would not be appropriate for me to contemplate equal shared parental responsibility in these orders having regard to the paucity of evidence other than the question of the lack of communication.  However that may very well be a matter that I will need to address at the final hearing.

35. For the reasons I have set out, the evidence I wish the parties to address are those factors about which I have expressed concern and in particular, the paediatrician’s view about the need for stability, routine and parental support in this child’s life.

I certify that the preceding Thirty Five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 September 2008