Lindell and Ranteri

[2008] FamCA 891

FAMILY COURT OF AUSTRALIA

LINDELL & RANTERI [2008] FamCA 891

FAMILY LAW – CHILDREN – Interim parenting

APPLICANT: Ms Lindell

RESPONDENT: Mr Ranteri

FILE NUMBER: MLC 2638 of 2008

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S.M. Fookes

SOLICITOR FOR THE APPLICANT: Holt & Macdonald

COUNSEL FOR THE RESPONDENT: Ms B.A. Tulloch

SOLICITOR FOR THE RESPONDENT: McGindle Dalgleish

Orders

IT IS ORDERED BY CONSENT:

1.     That within fourteen (14) days of this Order the parties to each provide to the other via their solicitors copies of the following documents in their possession for the past three (3) years with respect to them personally and with respect to any entity controlled by either of them or in which they have an interest:-

a.      All tax assessments and returns;

b.      All profit and loss statements and balance sheets;

c.      All BAS statements;

d.      All statements for any bank accounts, loan accounts, mortgage accounts, credit card or store cards;

e.      All contracts for the sale or purchase of any real estate, motor vehicles, plant, equipment or machinery;

f.       All lease or hire purchase agreements;

g.All superannuation statements;

h.All trust deeds, ASIC documents and ATO documents;

i.Statements with respect to the creditors and debtors;

j.Any other document relevant to the income, expenditure, assets, liabilities or financial resources of the parties.

2.That the parties each forthwith engage a jointly appointed valuer to prepare an inventory and valuation of all plant, equipment, stock and other assets of the business known as F Business, the cost of the said inventory and valuation to be shared equally between them.

3.That the husband’s application for the sale of the former matrimonial home and the wife’s application for spousal maintenance be adjourned to the Judicial Duty List for determination at 9.00 am on Monday 19 May 2008.

BY CONSENT IT IS ORDERED:

4.That there be orders in terms of the Minutes of Consent Orders signed by the parties and dated 21 April 2008 (“the Minute”).

IT IS DIRECTED:

5.      That the Minute be placed upon the Court file and marked “Exhibit A”.

6.      That the Court engross the Minute of Orders.

IT IS ORDERED UNTIL FURTHER ORDER:

7.That each party is at liberty to cause subpoenae to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Riddiford for the return of subpoenae, all subpoenae to be restricted to subpoenae to produce documents.

8.That within ten (10) days the husband notify the wife through their respective solicitors of the details of his proposal to sell the former matrimonial home including a selling agent, solicitors to have conduct of the sale, the reserve price and the terms of settlement.

IT IS FURTHER ORDERED:

9.That the further hearing of the then outstanding interim applications be adjourned to the Judicial Duty List on 21 August 2008 at 10.00 am.

10.That pursuant to s62G(2) a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court to be released to the parties by the second week of August 2008.

11.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issues.

12.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

13.The parties shall attend and ensure the children B born … June 1996, N born … June 1996 and E born … September 1998 attend all necessary appointments for the preparation of the Family Report.

14.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to participate in any feedback session which may occur in late June 2008.

15.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

16.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

17.That pursuant to section 70NG(1) of the Family Law Act 1975, the husband and wife shall within 7 working days from the date of this order make contact with the parenting program provider “Lifeworks” in Melbourne, and attend before the said provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the said provider as being suitable to attend a program or part of a program and the said provider nominates a particular program for the husband and the wife the husband and the wife shall attend that program or that part of the program.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

18.That the husband and the wife have equal shared parental responsibility for the children B born … June 1996, N born … June 1996 and E born … September 1998 .

19.That the father spend time with the said children each Wednesday evening from the conclusion of school at 3.30 pm, when he will collect them from the front gate to the school, until 7.30 pm  when he will return them to the mother at McDonalds Family Restaurant at G.

20.That until further order during school term holidays the Wednesday time between the father and the children continue but the changeover point be from and to McDonalds Family Restaurant at G.

21.That subject to paragraph 24 of this Order any changeovers which do not occur at P Primary School occur inside the McDonalds Family Restaurant at G and for this purpose the parties by themselves their servants or agents make sure that they do not come into contact with each other and that the children are delivered and made comfortable at a table within the restaurant from which the other parent can collect them.

22.That the father be in substantial attendance during any period of time he spends with the children.

IT IS FURTHER ORDERED BY THE COURT:

23.That pending the adjourned date of hearing the husband spend further time with the children each Sunday from 11.00 am to 6.00 pm.

24.That the wife will forthwith direct and authorise the team manager of C sporting team and any other person it is necessary to authorise or direct to ensure that the husband is forthwith included on the mailing list and email communication records of the club for all purposes including the immediate notification of the fixtures for the C sporting team for which N plays.

25.That the changeover point for collection of the children for time which the husband is to spend with the children on Sundays occur:-

a)      In the event that the changeover at 11.00 o’clock is not within half an hour of the start, duration or the conclusion of a soccer match in which N is scheduled to play, the changeover point be McDonalds Family Restaurant at G; and

b)      If the changeover time of 11.00 am falls within half an hour of the scheduled start, estimated conclusion or duration of a soccer match for N then the husband attend the soccer match at 11.00 am.  The mother direct the children in her care to go over to the husband and, upon seeing the children are with the husband, the wife leave the soccer ground although nothing in this Order is intended to interrupt N’s participation in the soccer match.

26.That until further order the husband refrain from causing, permitting or suffering the children or any of them to be taken on a boat.

27.    That pending further order the said children reside with the wife.

28.That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED:

A.     That for the avoidance of doubt the husband be at liberty to take the children to the home of the paternal grandmother at X.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2638 of 2008

MS LINDELL

Applicant

And

MR RANTERI

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter which comes before the court today involves competing applications of the parents in relation to post separation arrangements for the three children of the parties N and B, who are 11 years old, and E, who is nine years of age. 

2. The parents lived together from 1992 and married in June 1993.  They separated on Saturday, 7 July, 2007 when the husband left the matrimonial home and moved to his mother’s home in X.  The wife and the children have remained at the former matrimonial home at P.  Since separation, the husband's contact with the children has been extremely limited. 

3. Both parents seek formal parenting orders.  They agree that they should share parental responsibility for the children, and that order is made on an interim basis.  They agree that the children should spend regular and frequent time with the father and that the changeovers for that time are to be as non-contentious and calm for the children as possible.  They have agreed upon a neutral venue, McDonald's Family Restaurant at G, for those times when the changeover cannot be effected the school.  They have agreed that if changeover is to occur within 30 minutes of the commencement or conclusion of a soccer game for one of the children, the changeover can be at the soccer ground.

4. They agree that the children should see their father on one weeknight in each week to have dinner with him.  For that purpose, the father will collect the children from school at 3.30 pm, or such other time as school concludes, and then return them to the mother at a neutral changeover venue at 7.30 pm. 

5. There is no agreement as to the time the father spends with the children on weekends.

6. The mother proposes that he spend time with the children on a weekly basis, each Sunday between 10 and 5 pm.  She left open the possibility for this period to be between 11 to 6 pm on Sundays.  She stipulated that she seeks that the husband be restrained from taking the children boating or fishing from a boat, until further order.

7. By contrast, the husband seeks to spend time with the children on each alternate weekend from 10am to 6 pm on each alternate Saturday and Sunday.  That is, he proposes to return the children to the mother at the end of each day and to collect them the following morning so that he spends two consecutive days with them each fortnight.  It will encompass the entire weekend each fortnight excluding over night stays.

8. The father initially opposed any order restricting his ability to take the children boating or fishing.  He did not press that issue in view of these being interim orders and subject to review in three months.  The father’s consent to refrain from taking the children boating or fishing from a boat was, by his account, not to be taken as any concession by him that he sees boating or fishing as a dangerous activity for the children or that his activities in that regard ought to be curtailed. 

9. The parties and their children attended upon the family consultant, Mr V, on 22 April 2008.  Mr V prepared and filed an assessment which is dated 23 April 2008.  It has been released to the parties and their practitioners. 

10. The family consultant also attended court and gave oral evidence.  I will not repeat his evidence here, but order that this evidence be transcribed and a copy be placed on the court file.

11. When making parenting orders and deciding with whom a child spends time or communicates, the court must take into account the best interests of children. In determining where these best interests’ lie, the court must take into account the primary and additional considerations set out in Part VII of the Family Law Act, 1975.

12. Notwithstanding the interim nature of these orders, the best interests of the children are the paramount consideration.  Goode v Goode set out the approach to be taken and I adopt that approach here.  I have regard to the two primary considerations: the benefit to children of having an ongoing relationship with their parents and the need to protect children from physical or emotional harm, including exposure to domestic violence.

13. I must also take account of the additional considerations as are set out in section 60CC that are relevant to the case.  In my view, they amplify the primary considerations. 

14. In this case there is no contest about section 60CC(2)(a).  The parents each acknowledgement of the benefit to the children having a meaningful relationship with both of them.

15. Section 60CC(2)(b) is also relevant.  That is, the primary consideration enshrining the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  Mr V gave evidence that the children reported to him that they have witnessed fairly extensive domestic violence, by the father directed at the mother.  The children reported to him that the father was the main perpetrator of the violence and that they felt that they had to protect their mother from the aggression and violence of the father.  On at least one occasion, N witnessed her mother sustain injuries as a result of violence by the father.

16. The level of hostility between the parties is palpable.  There are allegations of abuse on both sides.  Mr V’s conclusion was that the children have a perception of their father as the initiator or the instigator of the violence, and of their mother as someone who has required protection from the family violence. 

17. Mr V said the children described spontaneously hanging on to their father's arms and legs to prevent him hurting their mother.  Mr V’s impression was that this occurred “on occasions”, meaning more than once.  The children indicated to Mr V that these incidents had occurred prior and subsequent to separation.

18. Family violence is a matter to which I must have regard by law and it is a matter to which I do have regard in my consideration of the need to protect the children from such harm.  The children were clear that times of anger and violence were “scary” for them because they were concerned that someone would be hurt, and in particular, their mother.

19. The mother provided a copy of an intervention order arising from the police issuing a complaint and summons to the husband, naming the wife and the child, N, as the aggrieved family members.

20. The children’s views are also considerations to which I must have regard.  These views were recorded by Mr V in his assessment.  Mr V noted that the children, after not having seen their father for a significant period of months, they were visibly pleased to see him.  In the family consultant’s opinion, the children readily interacted with the father and did not display any hesitancy or anxiety about seeing him or spending time with him.  That is a very promising aspect of this case.

21. Mr V’s opinion was that after not having seen the father it would be very important that any time in future be regular and frequent in order to re-establish the relationships between the father and the child and to give the child a confidence in that relationship that it is going to continue.

22. The children were not asked nor did they express any views that might assist in deciding the frequency or duration of time they should spend with their father.  They were however, clear that they did not want to spend overnight time with the father.  Those views were expressed independently of each other.  At this point, I regard those views and views which should be respected. 

23. Mr V’s assessment was that the children have a very clear view that their parents should stay away from each other.  For the children, this means that they avoid being exposed to conflict at changeover times.  This will potentially assist them to reconcile their own acceptance of any new arrangements.

24. In Mr V’s assessment, which I accept, was the children require a clear commitment from each parent that during periods of time that the father spends with the children over the next three months, that there be no communication of any kind between the parties.  I am satisfied that an order to this effect is in the children’s best interests, at least until the matter returns.

25. Mr V opined, and I accept, that if the parents break any commitment not to interact over changeover times and interact with each other negatively, then those actions will seriously harm the ability of the children to trust their parents.  Mr V’s evidence is that the children want desperately for their parents to end the conflict.  The children's recollection of their parents' family life is that it was beset by conflict, and it is imperative that that not occur again.

26. I take into account the nature of the relationship of the children with each of the parents.  Fortunately, the children appear to have a positive relationship with each parent.  I am also satisfied that, after seven or nine months of absence, for the children to react so positively to the father speaks well not only of his relationship with the children but also of the mother's ability to insulate the children from concerns which she may hold for herself personally. 

27. The family consultant gave evidence that the mother spoke of concerns relating to her own personal safety but could differentiate between those fears and the safety of the children.  That is indicative of considerable strength, insight and an ability on the part of the mother to put separate her needs from the needs which she perceives the children may have.

28. I also have regard to the nature of the relationship of the children with other persons.  In this particular case, the paternal grandmother appears to be a significant person in the children's lives.  At this stage they have expressed some tentativeness about seeing her again.  I take that into account. 

29. I take into account generally the balance of the additional considerations set out in the Family Law Act 1975 at s 60CC(3) including the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Additionally, I must have regard for the responsibility and attitudes of the parents to discharge their parental responsibility. It is early days. These considerations are best assessed at final hearing stage when each party has an opportunity to put evidence before the court and that evidence can be tested.

30. The parties are encouraged to use the next three months to set a more positive course for the children and to desist from exposing them to any further conflict.

31. So I have to decide whether the time the children should spend with their father should be fortnightly or weekly.  The mother contends, through her counsel, that it should be a weekly arrangement.  It is submitted by the wife that this would be an easier way to start off a regime, more certain for the children and most likely to lead to a re establishment of familiarity between the father and the children.  On the other hand, the husband contends, through his counsel that two days in each alternate weekend would mean that the husband and the children have the benefit of sharing the entire weekend.  He says that this would assist the sharing of a range of activities with one another rather than just the activities that fall on a Sunday.

1. The activities of the children are diverse. The twins, N and B, have tennis after school on Thursdays.  B has tennis on Saturdays, but no evidence of times has been provided.  N plays soccer on Sundays. She plays for the C sporting team and their fixtures are not yet published.  In general, they have occurred on Sundays, before lunch.  I have no evidence of where these games are played.

2. Counsel for the husband says that it may not appear evenhanded to the children if the husband attends to watch all of the N’s soccer games but no sports in which the children (or any of them) participate on Saturday.  He submits that it could be construed that he is not displaying any interest in B’s tennis on Saturdays.  High on the husband's list of expressed priorities is that he does not want to foster different or divisive relationships between the children by appearing to give any child more time or attention than another.   

3. The juxtaposition of the Saturday and the Sunday time would comfortably, in my view, lead to the introduction of overnight time at whatever point it is considered by the court or the parties that it is convenient to do so.  However, I must determine this matter based on what is now in the children’s best interests, having some but not undue regard to likely developments in the future.

4. These orders will be relevant to the next three‑month period.  For that period, I conclude that the father should spend time with the children on a weekly basis.  In my view this approach is more consistent with the best interests of the children at this early stage than removing them from their usual routine for a whole weekend each fortnight would be.  We are at an early stage. I may take a quite different view once the children are accustomed to spending extended days with the father.  Weekly time, on top of the midweek time, will result in the father as a real presence in the lives of the children.  It also provides the children with some leisure time each weekend in their primary residence.   

5. The orders that I make will have the effect of the children seeing the father on a twice‑weekly basis: one for a meal based visit, which is going to be short but which is an opportunity to catch up; the other time will be for a more extensive period, each Sunday.  That means that at the conclusion of every school week and just before the start of each school week the children know they are going to be able to discuss things with their father and reintegrate him into their lives, if the arrangement works well. 

6. The position, as I have said, will be reviewed at the expiration of three months.  At that point the parties and the family will have the benefit of another intervention, in the form of a child responsive program.  The husband has indicated that he is confident that his mother will attend; and that seems to be a sensible course, as that is where he lives at the moment. 

7. At the time of the child responsive program I anticipate that the family consultant will have had some discussions with the counsellor or qualified person who is seeing the children and the mother as part of a victims of crime program.  At that point the court and the parties will also be able to assess the appropriateness of that program continuing or whether it should be replaced by some other form of counselling or support.

8. For the reasons that I have outlined, I will make the following orders.   

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 August 2008