Leske & Leske

[2009] FamCA 482

FAMILY COURT OF AUSTRALIA

LESKE & LESKE [2009] FamCA 482

FAMILY LAW – CHILDREN – High conflict between parents – Agreement to have equal shared parental responsibility – Dispute as to duration of time spent by the children with each parent – Limitations involved in interim proceedings – Proposals present a change to the arrangement existing in the three years since separation – Best interests of the children requires minimising the change to the existing situation

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Cowling v Cowling (1998) FLC 92-801
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Leske

RESPONDENT: Mr Leske

FILE NUMBER: BRC 8876 of 2008

DATE DELIVERED: 27 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Brasch

SOLICITOR FOR THE APPLICANT: Belinda Eyers

SOLICITOR FOR THE RESPONDENT:

Mr Tester

Stephen Tester & Associates

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

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

IT IS ORDERED THAT

1. The further hearing of the matter be adjourned before Justice Murphy at 9.30am on 21 October 2009 in the Brisbane Registry of the Family Court of Australia.

IT IS ORDERED UNTIL FURTHER ORDER THAT

During School Terms as follows:

1. The Children B, Z and T will live with the Father every second Thursday from the conclusion of school until the commencement of school the following Monday.

2. In relation to the other children, S and J will live with the Father every second Friday (being the day following the Thursday set out above) until the commencement of school the following Tuesday.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. That the parents have equal shared parental responsibility for all major decisions for the long term care, welfare and development of the Children:

   a.        Z born …/05/1995

   b.        J born …/01/1997

   c.        T  born …/10/2000

   d.        S born …/09/2001

   e.        B born …/06/2003

2. That the parent with the care of the Children, from time to time shall be responsible for the day to day, non-long term, care welfare and development of the Children.

3. That the Children live with the Father and the Mother as agreed, but failing agreement:

   During School Holidays

   a.   In relation to all the children half all gazetted New South Wales School Holidays as follows for the 2009/2010 year and then alternating on a yearly basis:

   i.    First term holidays with the mother

   ii.     Second term holidays with the father

   iii.   Third term holidays with the mother

   iv.    Pre-Christmas 2009 with the father

   v.   Post Christmas 2009 with the mother.

   vi.    For the purposes of iv and v above change over will take place at 5pm on 26.12.09

   Mother’s and Father’s Days

   b.   On Mothers Day should the Children not be with the Mother then the Mother may collect the Children at 9.00am that day and return them at 5.00pm on that day.

   c.   On Father’s Day should the Children not be with the Father then the Father may collect the Children at 9.00am that day and return them at 5.00pm on that day.

4. In exercising their parental responsibility the mother and the father shall consult with each other and reach agreement on major long-term issues which include (but are not limited to):

   a.the children’s education (both current and future); and

   b.the children’s religious and cultural upbringing; and

   c.the children’s health; and

   d.changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with or live with a parent.

5. In the event that the mother and father are unable to reach an agreement on any of the issues referred to in Order 4, the mother and/or father shall make arrangement for the mother and father to attend jointly upon a Family Consultant (personally or by telephone) to resolve the issue in dispute.

6. The father shall encourage and permit telephone time between the mother and the children when the children are spending time with him.

7. The mother shall encourage and permit telephone time between the father and the children when the children are living with her.

8. The children shall each spend time with both parents if reasonably practicable on their birthdays and where possible all the children will be spend the night together under the one roof on the eve of each child’s birthday.

9. The children shall be collected and delivered for the purpose of these orders as follows:

   a.The father is to collect the children from school at the cessation of school at the commencement of the days the children are to spend time with the father.

   b.The father is to deliver the children to the school at the commencement of school at the cessation of the time the children are living with the father unless the children are unwell and unable to attend school in which instance the father shall deliver such child or children who is unwell to the mother at her residence after delivering the other children to school.

   c.At all other times the Father shall collect the children at the residence of the Mother at the commencement of the Father’s parenting time and the Mother shall collect the children from the residence of the Father at the cessation of the father’s parenting time.

Specific Orders

1. That each Parent is hereby authorised to obtain, at their request and cost, from the school [including any after school care / vacation care] attended by the Children from time to time any information about the Children’s progress, including but not limited to, school reports, school photographs, school newsletters, school activities and/or any other activities to which Parents are usually invited.

2. That each Parent is hereby authorised to discuss with the school including the class room teacher the Children’s progress.

3. That each Parent shall advise the other of the name and address of each and every Medical Practitioner who is involved in treating or caring for the Children.

4. That each Parent hereby authorised to request the said Medical Practitioner and/or other treating Medical Practitioner to discuss the Children’s health and medical treatment with the other parent.

5. That each parent forthwith notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children or either of them when the child is in their care. That such notice is to provide the name of the hospital, treating medical practitioner, and/or medical facility that provided medical treatment for the child.

6. Each Parent is to notify the other of any change of residential address and/or home telephone number and/or mobile telephone number within seven days of any such change.

7. The Children shall continue to be known by the name shown on his/her Birth Certificate.

8. Each Parent shall not to denigrate the other party or their family or partner in the presence or hearing of the children.

9. Each Parent shall use reasonable efforts to ensure that no other person denigrate the other party or their family or partner in the presence or hearing of the children.

10. That the Parents shall not to discuss the Court proceedings or these Orders in the presence or hearing of the child.

11. That each Parent shall use reasonable efforts to ensure that no other person discusses the Court proceedings in the presence or hearing of the child.

12. That each Parent shall be punctual in the performance of any obligations under the terms of the Court Order.

13. The parents shall forthwith enrol in and attend a Parenting Orders Program.

14. It is directed that the matter be mentioned on (6 months) with the intention that a Family Report be considered.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8876 of 2008

MS LESKE

Applicant Mother

And

MR LESKE

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. Relatively recent conflictual circumstances between the parents in these proceedings have produced an application to this Court for parenting orders in respect of their five children who range in ages from approximately 13 to approximately 5.

2. The resulting conflict finds reflection in a number of specific aspects.  It is to the parties' credit that they, together with the assistance of their legal advisors, have been able to reach agreement with respect to the vast bulk of those issues or potential issues.  Sadly, the parties have not been able to reach agreement with respect to the time arrangements that might apply for the children during school terms. 

3. In that respect, the mother proposes that three of the children, B, Z and T who are born respectively in June 2003, May 1995, and October 2000 live with the father every second Thursday from the conclusion of school until the commencement of school the following Monday; that is to say four nights each fortnight.  In relation to the other children, S born in September 2001 and J born in January 1997 it is proposed by the mother they live with the father every second Friday, being the day following the Thursday just referred to, until the commencement of school the following Tuesday.  That is five nights per fortnight.

4. The father proposes that all of the children live equally with he and the mother on an alternate weekly basis commencing after school Monday, or 4 pm if not a school day.

5. This case reflects the wholly unsatisfactory process – but, unfortunately, the only – process that the Court is able to afford parties in the interregnum between the filing of an application for final orders and a final trial.  The unsatisfactory nature of the situation has been pointed out in a number of cases decided by the Full Court, perhaps earliest in C v C, and more recently in both Cowling and Goode v Goode. 

6. In simple terms, the process afforded the parties on an interim basis is a significantly truncated process during which it is not possible to make findings about matters that are significantly in contest between the parties and which, therefore, need to be the subject of appropriate evidence, cross-examination, and most importantly of all, proper analysis by a trial judge.

7. Accordingly, any orders made during interim proceedings are made on the basis of those matters which are either agreed or which cannot seriously be seen to be the subject of challenge, at least for the purposes of those interim proceedings.

8. The fundamental problem with the process just described is that in this case, as in most cases, the precise nature of the problem is conflict between the parties.  Where there is conflict between the parties it is almost axiomatic that there will be conflictual and competing factual allegations and counter-allegations.  Such is the case here.

9. If the core of the problem between the parties is conflict and assertions and counter-assertions, and, in this particular case, what Ms D, the family consultant, has identified very clearly as being what might be described as different parenting styles, the problem for a Court in dealing with an interim case becomes, as is clear, acute. 

10. It is possible to do what Goode v Goode indicated a Court must do, and that is to apply the terms of the Act and in particular the terms of s 60CC insofar as they are relevant.  For example, in this case it is possible to look at what seem to be, broadly, the facts and circumstances associated with the father, as it were, taking the law into his own hands in what, he says, is in response to the requests of the children, and to draw from that - for the purposes of interim proceedings - a conclusion (or a “temporary conclusion”) about the matters referred to in s 60CC(3)(i); namely the attitude to the child and in particular the responsibilities of parenthood demonstrated by each of the child's parents. 

11. However, it seems to me that in this case, as in so many cases, doing so is both somewhat artificial and very unfair to each of the parties.  Furthermore, and most importantly of all, doing so in this case, (or in many other cases) avoids the central question posed for the Court's determination, and in very broad terms it is this: in circumstances where each of the parties essentially contend that the other is a "good enough" parent - as that expression is frequently used in the social science literature - how might a Court decide what is best for the children when there are very different parenting styles, very different attitudes to parenting, and very different attitudes to the amount of time that is in the children's best interests for them to spend with their separated co-parents.

12. In making those comments I am in no way suggesting that I am either not cognisant of, nor applying, the Objects, Principles, and Considerations set forth as mandatory within the legislation.  I am acutely aware of each and, in particular in the context of this case, the Object contained in s 60B(1)(a) that the Court is to ensure the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.

13. So, too, I am aware of the principles underlying the objects, and in particular in the context of this case, the principles set forth at s 60B(2)(a) of the Act that children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married, or have never lived together.

14. Equally, I am aware that, as the parties have agreed that pending further determination by the Court they should have equal shared parental responsibility with respect to the children, various obligations are cast upon the Act. They are equally applicable, according to the decision in Goode, to decisions in interim proceedings as they are in proceedings for final relief: it is necessary, to the extent possible, to apply the statutory presumption and thereafter consider the terms of s 66DAA of the Act.

15. Of course, it is axiomatic that a sharing of parental responsibility equally does not bring with it a sharing of time.  Parental responsibility as a concept is quite distinct from the notion of time that children spend with each of their parents. 

16. Nevertheless, there seems to me to be two clear fundamental tenents arising from the legislation.  The first is the involvement of both co-parents in children's lives consequent upon their separation.  The second and overriding one is that any order of any type made by a Court in any circumstances, including interim proceedings, ought be made in what the Court considers, whether with the constraints applicable to interim proceedings or otherwise, to be in their children's best interests.  

17. Here the statutory Objects, Principles, and Considerations find reflection in what are, for present purposes, two central considerations, as it seems to me. 

18. The first is what has been referred to in argument as "the status quo".  In my respectful view, this is a phrase which, even prior to the introduction of the Reform Act, was frequently misused; often as some “starting point” or “initial hurdle”. The phrase finds reflection primarily, but not exclusively, in the statutory considerations outlined in s 60CC of the Act including, significantly, s 60CC(3)(d) which provides that the Court must take into account, where relevant, "the likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person including any grandparent or other relative of the child with whom he or she has been living."

19. In my view, that particular consideration is a central issue in the current case.  Similarly, although each party, for the purposes of these proceedings, does not submit other than that the other parent is a "good enough parent" nevertheless the "nature of the relationship of the child with each of the child's parents” is, in my view, a significantly relevant consideration as, too, are the children's views (expressed at least in a preliminary sense) to the family consultant. Additionally, and to some extent at least, the “attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents” is also relevant. 

20. Mr Tester, who appears on behalf of the father, took issue on behalf of his client with the use of the word "agreement" as applying to the situation by which care arrangements as between the parties post-separation has taken place.  Nevertheless, it seems to me clear that, in the approximate three years since the parents have separated, the fact of the matter is that the children have been primarily living with their mother. Additionally, the fact of the matter is - uncontested, as I understand the evidence - the children have been spending alternate long weekends with their father.

21. It is not necessary for me to find - and I do not find - whether the father for either the whole or any part of that period of time acquiesced in the arrangement or whether the arrangement could properly be described as "an agreement" between he and the mother.  I simply note that that is, as I understand the evidence, the existing arrangement that is now sought to be changed by each of the parties.

22. I also observe that the change proposed by the father represents, in my view at least, a far more significant change to an existing three-year situation than that which is proposed by the mother.  I consider that the change to the arrangement that has been in existence for some three years, noting of course the differences in the children's ages between the commencement of that period and now, is a significant factor in my determination.

23. Central to the father's argument, and, it seems, central to the behaviour which precipitated these proceedings, is a contention that the children have been expressing a desire to spend significantly more time with him.  It is apparent on the face of the Children's and Parents' Issues Assessment prepared by Ms D that the children have said things to her along those lines. 

24. For example, Ms D reports that Z, now nearly 14, provided her with a "solution" which was to "spend more time at each parent's home (two weeks), to decrease the frequency of changeovers, and to allow increased time to settle into the routine of each home".   J, who is in Grade 6, reported of the current arrangements: “it feels like mum is mum … dad is our friend".  Ms D provides the opinion that, by saying that, he was "inferring that he does not get to experience his dad playing the father role because he only spends weekend time with him which is essentially a fun time".

25. Ms D reports that J indicated that "increased time with his father would lessen his sense of guilt", the guilt being a reference, I gather, to guilt about his parents separating and not spending significant time with both of them.

26. Similar comments are made by the other children, but to different extents. And, of course, it needs to be borne in mind that, as the oldest child is almost 14 and the youngest not yet 6, one might expect there to be not only a significant difference in the nature of the views expressed and the way in which they are, but also the impact that those views might have on any ultimate decision by the Court.

1. Next, and very significant as it seems to me in terms of the issues underlying the determination of these interim proceedings, are concerns expressed by Ms D about the nature and extent of the conflict between the parties and the nature and extent of the different parenting styles of each of the parties and how that might impact not only upon the children but also upon their relationship.  Ms D, for example, says: 

   "All children are reporting the effects their parents' conflict and/or lack of communication is having upon them.  [Z] and [J] are reporting an emotional distance from their parents as a result.  If the conflict continues this distance will only widen and the younger children may begin to show similar behaviours".

2. Ms D goes on to say:

   "The aftermath of the conflict if continued will be that the children will experience future problems with respect to their own relationships and sense of self.  The children need parents who care enough about them to show respect for the other parent whom they also love".

3. Specifically, Ms D says in respect of the shared parenting arrangements mooted by the father that:

   "There may be some value in trialling a shared parenting arrangement or a compromised version of it to allow the family to make an informed decision about what best works for them.  This will require a level of communication between the parents and acceptance and respect of each other."

4. In a similar vein, Ms D says:

   "If a shared arrangement occurs but there is high conflict between the parents it is very likely to make the children withdraw from their parents, thus adversely affecting the quality of their relationships with each parent".

5. Of those three central matters just referred to, I find that it is in the children's best interests to limit the amount of change to them from the situation that has pertained in the three years or so since separation. 

6. Next, it seems to me that the views of the children might be seen as being reflective of true wishes, but, in my view, parents and some lawyers, see the views of children as being relevant only to an ultimate result, expressed in terms of time, that might be thought to result from those wishes. 

7. In my view, the concept of "views" as used as a consideration in s 60CC of the Act is of wider import, and a proper examination of those views, once all of the evidence in the case is examined, is likely to produce more significant pointers to their best interests than simply as an expression of the amount of time that each might spend with their respective parents. 

8. It seems to me that the issue of views in that context is an issue which needs to be properly explored by both expert and lay evidence at a trial and to be analysed carefully by a trial Court.  I am not persuaded that the views of the children expressed as simply a reflection of the amount of time they should spend with each parent should be taken into account in a significant way in determining these interim proceedings.

9. By far the most important matter in my determination of these interim proceedings, and which, in turn, is a matter relevant, as it seems to me, to a number of the specific considerations required to be taken into account by s 60CC of the Act is the degree of conflict which Ms D refers. 

10. In particular Ms D does not per se recommend a "trialling of a shared parenting arrangement or a compromised version of it". Such a step would cause me some concerns in any event by reason of it being, as it were, "an experiment" with the best interests of children in the absence of a proper analysis of the evidence. Moveover, Ms D recommends that trialling that shared parenting arrangement, or a compromised version of it, would "require a level of communication between the parents and acceptance and respect of each other". 

11. On all of the evidence available to me at the moment, that level of communication between the parents and the acceptance and respect of each other, and an acceptance and respect of each other's parenting styles is not present in this case. 

12. That being the case, I am profoundly concerned about Ms D’s opinion that "if a shared arrangement occurs but there is high conflict between the parents it is very likely to make the children withdraw from their parents, thus adversely affecting the quality of their relationships with each parent."

13. As at today I consider that, on the evidence before me, there is in fact high conflict between the parents and the consequence that Ms D refers to is therefore of major concern to me. 

14. I am pleased to note that the parents have agreed to attend the post-separation parenting program run through the Family Relationship Centre or Relationships Australia in Lismore which is closest geographically to them. 

15. It seems to me that the real key to the best interests of these children lies in each of the parents appreciating the qualities of the other and in respecting not only the qualities that each of them bring to the parenting of these children but also respecting the fact that loving parents can have differing views about aspects of parenting. Indeed, those differing views can be beneficial if for no other reason than that they are reflective of differences in the only parents these children will ever have.

16. I am not, though, convinced that – at least at present - the requisite degree of cooperation, lack of conflict, respect, and mutuality exists between these co-parents so as to change the situation that has pertained for some considerable period as contended for by the father.

17. It seems to me that the mother's proposal, on the other hand, involves more time for the children with the father than what has otherwise been the case but involves significantly less change to the existing situation. I consider it more consistent with the children’s best interests.

18. In those circumstances I make orders in terms of the document entitled The Mother's Proposal forming part of the minutes of proposed orders otherwise handed up to me and, as earlier indicated I order by consent in terms of the orders otherwise agreed to by these two parents. 

19. I will order that the matter be adjourned until Wednesday, 21 October, at 9.30am before me.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  4 June 2009