Mackin and Clairwain

[2007] FamCA 858

FAMILY COURT OF AUSTRALIA

MACKIN & CLAIRWAIN [2007] FamCA 858

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: MS MACKIN

RESPONDENT: MR CLAIRWAIN

INDEPENDENT CHILDREN’S LAWYER: MS FALCONER OF DGB LAWYERS

FILE NUMBER: SYF 321 of 2005

DATE DELIVERED: 24 JULY 2007

PLACE DELIVERED: SYDNEY

PLACE HEARD: SYDNEY

JUDGMENT OF: COHEN J

HEARING DATE: 24 JULY 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR FERNIE OF HEARD MCEWAN LAWYERS

SOLICITOR FOR THE RESPONDENT: MR WOODS OF HILTON KING LAWYERS

Orders

PENDING FURTHER OR FINAL ORDERS IT IS ORDERED:

1. That the father shall spend time with the children, J born … June 2001 and B born … April 2004, once every fortnight from 9:00am on Saturday to 5:00pm on Sunday.

2. That for the purpose of implementing order 1. the father shall collect the children from and return the children to the front gate of the mother’s home.

3. That the father is restrained from proceeding beyond the front gate onto the land on which the mother’s home is situated and that the mother is restrained from proceeding beyond her front gate from the land on which her home is situated at the times when the father is collecting and delivering the children.

4. That each party shall serve on the other party not less than 14 days before the next date for hearing and file in court not less than 7 days before that date:

   a)a list of reasons why the Court should make the orders to institute the living arrangements for the children he or she seeks;

   b)a list of facts relied on to support those reasons;

   c)a list of witnesses and documents relied on to prove those facts;

   d)a list of the facts alleged by the other party which are disputed;

   e)a joint list of facts which the parties agree are not in dispute.

5. That neither parent shall smack or in any way use physical violence to discipline the children.

6. That the matter is stood over to a date to be fixed for a further half day hearing.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cohen delivered this day will for all publication and reporting purposes be referred to as Mackin & Clairwain.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

SYF 321 OF 2005

MS MACKIN

Applicant

And

MR CLAIRWAIN

Respondent

REASONS FOR JUDGMENT

1. In this matter, which concerns two boys, J and B, who are respectively aged six years and a little more than three years, each of the parties seek, ultimately, for the children to live mainly with him or her.

2. Originally when the parties separated, in all likelihood at some time in 2003, the children lived mainly with their mother.  They had frequent contact with their father.  Then, in mid-2005, the mother absconded with the children and the father and the authorities, who the father sought to have find the mother and children, could not find her. 

3. Ultimately, the Federal Police caused the children to be taken from the mother and put into the father's care in late September 2006.  They remained in his care until January or February 2007.  At that time the mother had commenced these proceedings, and was seeking that the children live mainly with her.  The father and mother agreed in the interim that they should share the children's living arrangements on a week-about basis, and that has been the case ever since.

4. This is a matter which is in the less adversarial proceedings list, and it has been listed before me for the first time. 

5. There has already been an order for the provision of an expert's report.  That report is before me and is a report of Dr W, an experienced child psychiatrist and family therapist.  It is dated 21 May 2007, so it is quite up to date.  It appears to me to have been very thorough and it is certain, from the report, that Dr W has not accepted everything he has read or been told, either by government or like authorities or the parties, or those others he has interviewed, including the children.

6. The report is of a nature which makes me concerned about the risk to the children which might be created or continued by the continuance of the current residential arrangements for them.  At this stage in proceedings - and in fact, until final proceedings are heard - I am not and will not soon be in a position to discern the facts.  However, it seems quite clear that it is necessary to make a decision about the future of the children in the interim, lest their best interests will not be properly provided for.

7. I have little that I can rely upon.  At best I can weigh the risks.  It seems very clear that if I take into account what the mother's essential case is and what the father's essential case is, without taking Dr W's report into account, I could not say any particular scheme involves greater risk than any other scheme for the children's residence until final orders can be made.

8. However, Dr W has interviewed the mother, the father, and both children.  He has not interviewed the father's wife, and he does not seem to have interviewed the mother's male friend or de facto husband, whatever he might be. 

9. Dr W's opinions are strong.  He says that the current regime for the children's residence is likely to harm them.  He says that the children are more attached to their mother and that whatever attachment they have to the father is likely to be destructive of them.   He has taken a very adverse view of the father, and an adverse view, although not as adverse, of the mother.  He has also taken an adverse view of the father's current wife, although he has not interviewed her.  He has based his view on what he has read, his interviews with the children - particularly the older child - and has come to the view that the children should not live in circumstances where they receive significant primary care from the father's wife. 

10. He actually says in his final paragraph of the report, this:

    “Finally, my recommendation is that the boys reside with their mother.  I acknowledge that the father should be given the opportunity to show that with contact he can establish a relationship with the boys that is in their interests, but it cannot be assumed that this would occur.”

    The report seems to indicate to me that the boys have an attachment to their father but that, until now, it has not been constructive but destructive, and that Dr W thinks that nothing will change for the better.  It is to be noted that it is also Dr W's opinion that the boys are more attached to their mother.

11. Of the father's wife he says, in the same paragraph I have already quoted from:

    “Furthermore, I do not consider it as being in the boys' interests to spend significant periods of time with [the father’s wife] while their father is at work.”

    The father ordinarily works from early in the morning until the evening five days a week, and his wife has the care of the children while he is at work when they live with him.  One of the children is very young, but he attends preschool, whereas the other child attends school.

12. Dr W's opinion goes on to say:

    “Therefore I would suggest that any contact with the father be when the father can give them his attention, and at this stage I would not recommend more than every second fortnight, with only one night spent at the father's.   If there is any evidence of further destructive behaviour by the father and stepmother, vexatious notifications, criticisms of the mother in front of the children, et cetera, then this would be one of the rare cases where I would believe that an order of no contact would be justified.”

13. There has been a slight change of circumstances.  The father has not attended today, although he has been represented.  The reason he has not attended is that, within the last few weeks, he has been injured at work.  Presumably in the short term he would be available to provide primary care for the children while they are living at his home.  He is due to have an operation in the very near future.  It seems to me that he will be off work for a substantial amount of time, but it is not likely that he will be off work for so long that he will not return to work before a final decision is made in this case.

14. Nevertheless, I cannot ignore the suggestion by Dr W of the extent of the risk of the children living for significant periods with the father and his wife, irrespective of which of the two would look after the children.  In fact, it is likely to be the father's wife in the immediate future, despite the father being at home, because he will be convalescing from a disabling injury that will prevent him from getting about. 

15. The family consultant, Mr L, gave evidence.  His evidence is that if Dr W's report is to be accepted, the children should spend most of their time with the mother.  He, too, mentioned one overnight or one weekend a fortnight.  His initial view on reading the report alone was that, and it was based upon the report. On having facts which the father's solicitor wished me to rely upon for the purpose of making this interim decision put to Mr L by the father's solicitor, and on being asked to assume that those facts are true, Mr L maintained the same stance. 

16. In all of the circumstances, and taking into account that there are few facts upon which I can rely, and the only facts that I can truly rely upon are those that I have already stated - that is, the approximate time of separation, the age of the children, the time that the mother absconded, and what happened when the children were returned, it is very difficult to have any meaningful consideration of the things that I must consider as a result of s.60CC of the Family Law Act.

17. However, I have considered each of the factors that that section requires me to consider.  In coming to what my view of the children's best interests is it seems to me that because of Dr W's view, the preponderance of adverse risk weighs very strongly in favour of altering the current residential arrangements to those recommended by Dr W as an interim measure.

18. The independent children's lawyer and the mother and her solicitor all submit that I should simply, in order to prevent the greater risk and for the children's best interests, make orders of an interim nature which provides the father with time with the children on one night a fortnight involving two days on a weekend.  I think that I must accede to that stance. To do otherwise would put the children at a level of risk which, in view of Dr W's opinion, an opinion which I cannot accept as based on fact because I do not know what the facts are but must take into account, is unacceptable. An order for residence with the father on just two days and the night between them is required to prevent the children from being at great risk.  I shall make such an order.

19. I will stand this matter over to a date to be fixed for a further half day hearing.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cohen J.

Associate: 

Date: