Leszek and Marston

[2007] FamCA 629

FAMILY COURT OF AUSTRALIA

LESZEK & MARSTON [2007] FamCA 629

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child - Interim

APPLICANT: MR LESZEK

RESPONDENT: MS MARSTON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 3014 of 1998

DATE DELIVERED: 4 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr P. O'Connell

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. That until further order the wife and the husband have equal shared parental responsibility for the child of the marriage:

FULL NAME  DATE OF BIRTH
W  April 1996

1. That until further order the child live with the wife.

1. That until further order the husband spend time with the child as agreed between the parents by email.

1. That for the purposes of the husband spending time with the child pursuant to paragraph 3:

a.   The husband shall spend time with the child at the paternal grandparent's home in A for weekend visits or short term visits, and shall ensure that the child attends all scheduled sporting activities (the wife to provide the husband with copies of all relevant sporting fixtures for this purpose) or otherwise as the parties agree in writing.

b.   The husband shall spend time with the child during school term holidays or long summer school holidays at either his home in Sydney or the paternal grandparent's house in A or such other location as agreed between the parties.

c.   The husband shall book and pay for all the child's travel to and from Sydney, and shall provide full details of all proposed travel arrangements to the wife at least one week prior to the travel.

d.   The husband shall ensure that if the child is to spend time with him in Sydney, that the child travels by train with an adult arranged by the husband to and from Sydney, unless otherwise agreed between him and the wife.

1. That the child communicate with the husband by telephone, with the husband to telephone the child on the wife's landline telephone number or via the child's mobile telephone.

1. That the wife and husband each keep the other informed of their current residential address and contact telephone number at all times.

1. That the husband and wife each notify the other as soon as practicable of the child suffering a serious injury or illness which requires medical treatment, including but not limited to those which require emergency medical treatment and provide all details and documentation to the other as soon as practicable.

1. That the child be at liberty to telephone the husband from the wife's home upon reasonable request to do so, and the child be at liberty to telephone the wife from the husband's residence upon reasonable request to do so.

1. That the husband and wife do all such things and sign all such documents as are necessary to authorise any school which the child may attend to release copies of all school photos, newsletters, reports and other information routinely disseminated to parents to be provided to both parents.

1. That both the husband and wife be at liberty to attend all functions that parents would normally attend at the child's school including but not limited to parent/teacher interviews and sports days that the child will be attending or participating in.

1. The wife and Mr H continue to attend with the child at Anglicare for family therapy and follow all lawful directions of such organisation and then the wife shall do all things to request the Anglicare Counsellor to report to the husband not more than 6 weekly as to the child’s progress and well being.

1. Each party shall have liberty to apply to the Court or short written notice to the other party.

1. The current Form 2 proceedings otherwise be dismissed and the case placed in the Trial Notice List.

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 the 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.

AND THE COURT NOTES:

1. The husband and wife agree that they will not force the child to travel by aeroplane against his wishes.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 3014 of 1998

MR LESZEK

Applicant

And

MS MARSTON

Respondent

REASONS FOR JUDGMENT

1. This is an interim hearing about 11-year-old W, who has lived with his mother in the 10 years or so since his parents separated.  They live in Melbourne.  She has remarried and has a little three-year-old daughter.  His father lives in Sydney and sees the child, the way it was described, on an ad hoc but not infrequent basis, so they have a good close relationship.  The child also has the benefit of a close relationship with the paternal grandparents with whom he is close.  They live in Melbourne.

2. Both parents agree that at least until fairly recently, the child was displaying some challenging and concerning behaviour, most particularly in the course of last year and/or early this year.  The father has brought an application today, saying that the child should be moved to live with him immediately in the interim, leading up to the case later being heard in more detail.  The mother says that the child should not move from her home.  She has brought some proposals as to how to formalise the time he spends with his father until the case can be heard. 

3. During last year, the child was in trouble at school and the mother agrees that she has been having issues with her husband and that there was shouting in the home.  There has really been some stressors that have clearly reflected on the child and that has been a concern.  The father is genuinely concerned.

4. I must apply Part VII of the Family Law Act as amended last year by the Family Law Amendment (Shared Parental Responsibility) Act.  In Goode and Goode (2006) FamCA 1346, a decision of the Full Court of Bryant CJ, Finn and Boland JJ, the pathway for me at an interim hearing is set out, acknowledging that the inquiry necessarily at this point has to be significantly curtailed compared to the ultimate hearing.

5. The Full Court in Goode considered the previous condition in Cowling's case and said that it did not sit comfortably with the act as amended.  The Full Court noted that it is not simply a question of saying that a status quo should be preserved until there is a hearing, but the court needs to look at the various factors set out in s 60CC of the Act.  Status quo or stability will be amongst the features that the court needs to consider.

6. Under section 60CC(2)(a) of the Act, I have to consider the benefit to the child of a meaningful relationship with both of the parents.  Neither parent suggests that the child needs anything but a meaningful relationship with both of them.  They cannot agree as to how to effect that. 

7. I then need to consider the need to protect him from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  This is very much at the heart of his father's main concern for him at the moment. 

8. I have noted that the mother concedes that there have been issues in her household.  There has been some conflict between her husband and the child and there has been conflict between her and her husband.  I note a few things about that.  First, apparently there has been a Department of Human Services complaint, and the department has not taken any further action. I note too that the mother has quite properly ensured that her family is attending family counselling her proposed orders today are that the counselling will continue.

9. I am in a fortunate position at this interim stage in that the parties have very recently seen a child psychologist, Mr P.  So has the child, and Mr P has given a detailed report recently, only about one or two weeks ago.  Both parents were able to talk to Mr P about their concerns about the child.  The child was able to talk about his concerns.  He did so with what appears to be an impressive degree of honesty which is not easy for a child to speak about each parent's good and bad features and what he liked in each home and so on.

10. According to Mr P’s expert opinion, although there are issues that need to be considered for the child, there is no basis to be moving him at this point.  Mr P says in his report (page 10) that the child requires stability, consistency, predictability and to be kept safe.  He says that the child should at this stage remain with his mother, with the ongoing counselling that has been put in place, and that things should be reviewed in due course.  In his opinion the best outcome for the child is to reside where he is, maintaining regular contact though with his father.  He spoke about the child himself saying that is what he wants at the moment and that a lot of the issues that had been worrying his family and worrying him were considerably more settled now than previously.

11. I mention those aspects now under this heading of s 60CC(2)(b) and the need to protect the child, to show that whilst these are all issues that might be considered in the ultimate hearing, for present purposes, they simply do not support a sudden move of this child, with the prospect that he may move back again once the matter is heard to its entirety.

12. I have already touched upon the child’s views.  I am really helped by hearing what the child says through Mr P's report.  There is no suggestion that the parents have other than a good relationship with the child: that he loves both his parents and cares about them, and that they love him and care about him.  I really cannot go into a more detailed consideration of the other aspects at this stage without further evidence.  I do not propose moving the child in this interim stage.  The matter will be placed in the trial notice list today so that it can start heading towards a hearing.  I am not going to do anything further about the listing at this point.  Mr P expresses the opinion that there needs to be some reassessment in about six months' time, but he says in not less than six months.  I will give liberty to apply so that if something arises urgently before then, the case can come back to court.  Hopefully, after six months there will be some agreement and no need for a further review.  If not, and the parents want to review it, they should do that.  If they need the court's help as to how to do that, they can ask.

13. The orders I shall make are as follows:

1.      That until further order the wife and the husband have equal shared parental responsibility for the child of the marriage:

FULL NAME  DATE OF BIRTH

W  April 1996

2.      That until further order the child live with the wife.

3.      That until further order the husband spend time with the child as agreed between the parents by email.

4.      That for the purposes of the husband spending time with the child pursuant to paragraph 3:

(a)    The husband shall spend time with the child at the paternal grandparent's home in A for weekend visits or short term visits, and shall ensure that the child attends all scheduled sporting activities (the wife to provide the husband with copies of all relevant sporting fixtures for this purpose) or otherwise as the parties agree in writing.

(b)    The husband shall spend time with the child during school term holidays or long summer school holidays at either his home in Sydney or the paternal grandparent's house in A or such other location as agreed between the parties.

(c)    The husband shall book and pay for all the child's travel to and from Sydney, and shall provide full details of all proposed travel arrangements to the wife at least one week prior to the travel.

(d)    The husband shall ensure that if the child is to spend time with him in Sydney, that the child travels by train with an adult arranged by the husband to and from Sydney, unless otherwise agreed between him and the wife.

5.      That the child communicate with the husband by telephone, with the husband to telephone the child on the wife's landline telephone number or via the child's mobile telephone.

6.      That the wife and husband each keep the other informed of their current residential address and contact telephone number at all times.

7.      That the husband and wife each notify the other as soon as practicable of the child suffering a serious injury or illness which requires medical treatment, including but not limited to those which require emergency medical treatment and provide all details and documentation to the other as soon as practicable.

8.      That the child be at liberty to telephone the husband from the wife's home upon reasonable request to do so, and the child be at liberty to telephone the wife from the husband's residence upon reasonable request to do so.

9.      That the husband and wife do all such things and sign all such documents as are necessary to authorise any school which the child may attend to release copies of all school photos, newsletters, reports and other information routinely disseminated to parents to be provided to both parents.

10.    That both the husband and wife be at liberty to attend all functions that parents would normally attend at the child's school including but not limited to parent/teacher interviews and sports days that the child will be attending or participating in.

11.    The wife and Mr H continue to attend with the child at Anglicare for family therapy and follow all lawful directions of such organisation and then the wife shall do all things to request the Anglicare Counsellor to report to the husband not more than 6 weekly as to the child's progress and well being.

12.    Each party shall have liberty to apply to the Court or short written notice to the other party.

13.    The current Form 2 proceedings otherwise be dismissed and the case placed in the Trial Notice List.

14.    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 the 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.

AND THE COURT NOTES:

1.      The husband and wife agree that they will not force the child to travel by aeroplane against his wishes.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  4 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LESZEK & MARSTON