Malcher and Malcher

[2012] FamCA 1004

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER [2012] FamCA 1004

FAMILY LAW – CHILDREN –Where the father made an application for further interim parenting orders – Where the parties were unable to agree with respect to Christmas holiday arrangements – Where there is a dispute between the parties with respect to instructions to the single expert – Where orders are made providing for the children’s time with each of the parents over the Christmas holiday period be broken up so that the longest period of separation from either parent is no more than two weeks – Where orders are varied to have the father collect and return the children at school – Consideration of the role of the expert witness.

Family Law Act 1975 (Cth)

APPLICANT: Mr Malcher

RESPONDENT: Ms Malcher

FILE NUMBER: SYC 3808 of 2012

DATE DELIVERED: 15 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow Pty Limited

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. That Order 2 of orders made in this Court on 16 July 2012 is varied as follows:

   1.1The children’s time with the father on weekends shall commence at the end of school Friday and continue until 7.00 pm the following Monday.

   1.2That the children shall spend time with the parties as follows during the 2012/2013 Christmas school holiday period:

   1.2.1with the father from 6.00 pm on 7 December 2012 to 6.00 pm until 14 December 2012;

   1.2.2with the mother from 6.00 pm on 14 December 2012 until 6.00 pm on 24 December 2012;

   1.2.3with the father from 6.00 pm on 24 December 2012 until 4.00 pm on 25 December 2012;

   1.2.4with the mother from 4.00 pm on 25 December 2012 until 2.00 pm on 4 January 2013;

   1.2.5with the father from 2.00 pm on 4 January 2013 until 6.00 pm on 18 January 2013;

   1.2.6with the mother from 6.00 pm on 18 January 2013 until 2.00 pm on 22 January 2013;

   1.2.7with the father from 2.00 pm on 22 January 2013 until 6.00 pm on 28 January 2013;

   1.2.8with the mother until the children commence school.

2. For the purpose of implementation of Order 1.2 above the parent into whose care the children will move will collect them from the other parent’s home.

3. During school holidays the parties are to facilitate telephone contact between the children and the other parent at the children’s request and otherwise each third day between 4.00 pm and 4.30 pm.  If for some reason the call is unable to be taken or made it is to be either returned or made as soon as possible thereafter.

4. Upon the commencement of Term 1 2013 Order 2 of the orders dated 16 July 2012 as varied by these orders shall be implemented so that the children spend time with the father commencing with pattern week 2 and continuing thereafter.

5. The children shall spend the father’s birthday with him from 6.00 pm on … March 2013 to 6.00 pm on … March 2013.

6. That Order 2 of the orders dated 5 November 2012 are varied so that Dr A is instructed in accordance with the letter marked “A” annexed to the Response to an Application in a Case filed by the mother on 2 November 2012 save that documents 6, 8, 9, 10 shall not be included.

7. Nothing in these orders limits the documents or investigations to be undertaken or given to Dr A at his request.

8. That Order 3 and 4 of the orders dated 5 November 2012 are set aside.

9. That the further listing of this matter on 10 December 2012 and 25 February 2013 are vacated.

10. The father’s application for Orders 5 and 6 of his Application in a Case filed 9 October 2012 is adjourned pending receipt of Dr A’s report.

11. Other than as provided above (excluding any application for costs) the father’s Applications in a Case filed 9 October 2012 and 9 November 2012 and the mother’s Response to an Application in a Case filed 2 November 2012 are dismissed.

12. 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 NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3808 of 2012

Mr Malcher

Applicant

And

Ms Malcher

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. Before the Court is an application for interim parenting orders and directions to an expert.  The proceedings relate to the parties’ children B, who is 10, C, who is 9, and D, who is 6. 

3. To give context to the matters in issue it is necessary to record brief background of facts.  The facts as recorded are uncontentious unless stated otherwise. 

4. The parties commenced cohabitation in 1999 or 2000. 

5. Both parties have successful careers, the mother as a surgeon and the father as a stockbroker.  Although the details of the extent of each party’s role in the children’s care is contentious, it would appear to be common ground that prior to separation both parties were extensively involved in their children’s day to day lives and care.

6. Relevant to the matters at hand, there is no dispute that, for 12 months in 2002 to 2003 when B was a newborn, the father remained at home with the baby while the mother worked full-time, nor that for a significant portion of 2004 to 2008 he worked from home.  It is common ground that for a number of years a nanny was employed full-time to assist with the children’s care. 

7. Separation occurred in either February or March 2011.  Upon separation the father vacated the family home at Suburb E.  He moved to a rented apartment while the mother and children remained at Suburb E which is where they continue to reside.

8. Although the periods of time varied, thereafter the children regularly spent time with the father, albeit they were primarily in their mother’s care. 

9. Contrary to the mother’s wishes, in January 2012, the father moved back into the family home.  Although the parties lived in the same house their marital relationship did not resume.  There followed a tense and difficult time for the entire family, in essence with the mother wanting the father to leave and him refusing to go. 

10. On 29 June 2012 the mother commenced proceedings in this Court.  To summarise, she sought that the children live with her and exclusive occupation of the family home.  In addition, she proposed that the children have daytime contact with the father upon the proviso he complete an anger management course and attend a psychologist or psychiatrist.  The rationale for these preconditions to the father spending time with the children was to address the father’s violent and abusive behaviour to her, the details of which are set out in a Notice of Child Abuse that the mother filed at the same time.  So that it is clear, the father denies he has behaved in a violent or abusive manner towards the mother or the children. 

11. In his Response filed 13 July 2012 the father sought dismissal of the mother’s Application and in relation to the children that their time be divided equally, week about during term and in block periods for half of the school holidays.  Pending the sale of the family home, which it is understood the terms of a binding financial agreement require, the father sought to stay in the family home. 

12. Interim applications along the lines just outlined came before the Court on 16 July 2012.  Agreement was reached and interim orders were made that day, by consent, as follows:

    1.That the parties have equal shared parental responsibility for [the children].

    2.That the children live with the Father on a two week cycle during the following times:-

    2.1on Week 1 commencing on Friday 20 July 2012 from after swimming (at 5:30pm at the home) to 7pm the following Monday;

    2.2on Week 2 from after school Monday to 7pm Monday and from after school Tuesday to before school Wednesday;

    2.3for the second half of the Third Term school holidays in 2012; and

    2.4at other times by agreement between the parties.

    3.That the children live with the Mother at all other times.

    4.That the Father collect the Children at the commencement of each period the Children are in his care and return them either to their school or to the Mother’s residence as the case may be at the conclusion of such time.

    5.That the Mother shall be available in person to receive the Children from the Father at 7pm on Monday evenings.

    6.That [Dr A] be appointed as a single expert to prepare a Report for the Court in respect of the future recommended living arrangement for the Children and that the parents share equally the costs of [Dr A] and the parties shall do all things necessary for the preparation of such Report.

    7.That the Father vacate the former matrimonial home at [address deleted] within 7 days of the date hereof and that thereafter the Mother have exclusive occupation of the home.

    8.That the Mother vacate the said home between 5:30pm on Friday 20 July 2012 until 7pm on Monday 23 July 2012.

    9.That each of the parties have liberty to apply on 7 days notice in respect of the implementation of these Orders.

    10.That each party pay his or her own costs of these interim proceedings.

    Note the agreement between the parties:

    11.That LJ Hooker be forthwith appointed as the Real Estate Agent to sell the home.

    12.That McLaughlan & Riordan Solicitors be forthwith appointed as the solicitors for the preparation for the Contract of Sale and the conveyance of the property.

    13.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.

13. Notably, the orders provided that the father would vacate the family home, the children would live with the mother and spend time with him each alternate weekend plus one afternoon for a few hours and one night overnight in each two week cycle.  In other words, four nights overnight each fortnight plus one afternoon.  Arrangements for the term 3 school holidays were also addressed.

14. The orders were silent in relation to the children’s arrangements for the Christmas 2012/2013 school holidays and holiday periods thereafter.  It is inferred this is because the parties wished to address that and other long-term parenting arrangements informed by Dr A’s opinion, provision for which was made in the orders.  Notwithstanding the obvious merit in the parties’ decision to retain Dr A, debate has raged about the terms of his instructions.  This is a matter that must be addressed in this hearing. 

15. In accordance with the interim consent orders, the father vacated the family home.  He established his home in a rented townhouse at Suburb F where he lives with his partner, Ms G.

16. By and large, the children have spent time with the father in accordance with the orders.  Again, it is common ground that relations between the parties are extremely tense and each complains about unpleasantness at changeover.  Self-evidently, changeover involves the children and it must be apparent that they witness the unpleasantness about which their parents complain. 

17. The matters which I must decide are quite narrow and they are these.  First, the father’s desire to increase his time with the children along the lines outlined during addresses.  Second, Christmas holiday arrangements.  And finally, instructions to the single expert.

18. Dealing with these matters seriatim. 

Father’s desire to increase his time with the children

1. The father’s desire to increase his time with the children is predicated upon the following.  First, his extensive role in the children’s care.  Secondly, the benefits to the children of not being exposed to unpleasantness between their parents at changeover.  It is accepted that stress free changeovers are beneficial to children and that provided this can be achieved without compromising other aspects of their wellbeing, this should be ordered.  Orders which have the father collect and return the children at school achieve stress free changeover.  This is easily implemented on Friday afternoons without disruption to the children’s routine.

2. However, extending the children’s Monday evenings with the father until Tuesday morning does involve disruption to their current arrangements.  There is little doubt the last couple of years will have been very troubling for the children with them needing to adapt to numerous significant variations to family life.  It may well be that further changes will follow from Dr A’s investigations.  In my view, no further changes to the children’s circumstances during term, pending release of Dr A’s report, are appropriate.  It is far better that the next steps to be taken in relation to the children’s lives are planned and informed.  So that it is clear, it is not accepted that changing or not changing the children’s circumstances along the lines proposed by the father is likely to affect the children’s relationship with either parent.

Christmas Holidays

1. Here the issues are essentially:

   1.Who should have the children for the first part of their holidays?

   2.Whether both parents should spend time with the children on Christmas Day. 

   3.Whether, as is sought by the father, he should have the children for an uninterrupted 26 days. 

2. There is scant evidence to decide between the parties’ different proposals in relation to the first half of the Christmas holidays and how best to meet their needs during the holidays.  Both inform the Court it would be difficult if not impossible to have leave prior to Christmas.  Both plan to take leave in January.  The father plans to take the children to his parents’ beach house and make a second trip to another holiday destination in Australia.

3. It appears likely the mother and children will spend time with her parents in the rural NSW.  She may have other plans as well.  I do not know. 

4. Although it will interfere with each party’s plans, the approach I will adopt will have them both caring for the children at different times before Christmas.  If this means the children are cared for at home with the assistance of others, so be it.  In this regard, it is appropriate to observe that the father wants the children to live week about during term time in relation to which he says appropriate arrangements will be in place.  The point being that the mother has well settled day to day arrangements and it is inferred for this period the father can too.

5. During submissions I observed that for a child D’s age 26 days without seeing a parent is too long.  Quite simply, in the practical application of that proposition to the facts in this case, she would certainly miss her mother.  She has been through too much unhappiness in the last couple of years to unnecessarily impose this burden on her.  A better approach is to provide for the children’s time to be broken up so that the longest period of separation from either parent is no more than two weeks.  Although that has the flavour of an arbitrary figure, it is informed by the children previously being with the father for a period of 10 days and, by all accounts, coping reasonably well.  Adding a few extra days to the earlier 10 days is a logical extension of the amount of time with which D could be anticipated to cope comfortably.

6. Christmas Day was contentious.  It tends to be.  Considered from the children’s perspective, they have never had Christmas without seeing both parents and at this time of flux in their lives, it seems to me sensible that they are able to do so again this year.  It would be difficult, I think, to explain to the children in terms that they might accept as reasonable that they could see one but not both parents on a day which is ultimately primarily about them.  I take into account the mother’s evidence in particular about the unpleasant circumstances that occurred on Christmas Day 2011 and her opinion that Christmas for the father, celebrated in connection with his family, has hitherto not been as significant a family event as it has been with her family. 

7. The father puts these matters in issue but nonetheless, says that this year he wishes for the children to have this special time with his family.  Although I said Christmas Day is essentially a day about children, it is also a special day for all parents.  The children are at an age where these are probably the last year or so when the mystique of Christmas is fully to be enjoyed by them and their parents.  I allude to the mystique that is Santa and the joy of discovery of presents in the morning in relation to which I particularly emphasise for D.  This was undoubtedly a joy to the mother last year and, in my view, it is a joy that should be shared with the father.

8. The times I have proposed in relation to changeovers were adjusted to a degree from those proposed by the parties, by and large, the approach being to try and anticipate when one or other of the parties might be at work and provide a reasonable rhythm to the children’s arrangements during the Christmas holidays.

Letter of instruction to Dr A

1. The key issue was whether Dr A should be provided with the suite of affidavits filed in the mother’s case.  Essentially, these are observations by lay persons that are said to corroborate the mother’s family violence and abuse allegation.  There is also an affidavit by her treating psychiatrist, Dr H.  Dr H has not seen the father.

2. It seems to me there is a trend in the Sydney profession that practitioners consider it necessary to give experts such as Dr A every document filed in the case.  It is an approach that is burdensome, wasteful and represents a lack of understanding of the expert’s role.  The law recognises that expert witnesses sit outside the usual constraints placed on lay witnesses.  It is because of their specialised knowledge, experience and training that experts are permitted to express opinions.  Fundamental to the entitlement to express an opinion is that the expert does not subvert his or her opinion to others.  In order to express an appropriately informed opinion, a psychiatrist in the role such as that will be undertaken by Dr A will primarily investigate the family and have regard to investigations undertaken by others.  It is entirely usual and desirable that the expert has access to, for example, investigations undertaken by police, child welfare agencies, other health professionals and treating practitioners. 

3. I am unable to see how provision of the lay witness affidavits might inform Dr A’s investigations.  Self-evidently, unless he were to take the next step and interview them which would be a step too far, he could have no idea about the veracity of the material contained in those lay affidavits.  Considerations such as this rarely arise in relation to the types of witness and material produced by police, child welfare agencies and the like to which reference has just been made. 

4. On balance, I am satisfied it is not purposeful to have those lay witness affidavits given to Dr A.  However, this is not intended to impede Dr A’s ability to have access to those affidavits should he wish it, the point being if in the exercise of his expertise, he wants to consider this material, he can.  In this regard, it is my expectation that when Dr A takes the mother’s history, she would tell him that her evidence about family violence has been corroborated by others who have filed affidavits.  If that prompts Dr A to request to see that material, it is to be provided to him.

1. It is not accepted that by seeing Dr H’s report Dr A’s investigations would be compromised.  It is plain from Dr H’s report that his report is based on his history taken from the mother and observations of her to which he has applied his expertise.  Although, in answering questions put to him by the mother’s solicitors, he expressed opinions in relation to the father, these are carefully couched.  It is as certain as night follows day that Dr A would not be mistaken or misled into believing that this was an opinion from another psychiatrist informed by the father himself.  Dr A has the expertise to determine himself what weight, if any, he places upon Dr H’s report.  The thrust of the argument made against provision of that report to Dr A is rejected.

2. For these reasons I make orders in accordance with the orders dated today.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 15 November 2012.

Associate: 

Date:              29 November 2012