Maraichers and Tesson

[2010] FamCA 60

FAMILY COURT OF AUSTRALIA

MARAICHERS & TESSON [2010] FamCA 60

FAMILY LAW  -  CHILDREN  -  mother seeks variation of final orders made a few months earlier, in response to contravention application filed by father  -  allegations of family violence and offensive language  -  application to suspend overnight time dismissed  -  interim parenting orders  -  Issues Assessment ordered

Family Law Act 1975 (Cth)

FATHER: Mr Maraichers

MOTHER: Ms Tesson

FILE NUMBER: MLC 8704 of 2008

DATE DELIVERED: 12 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 January, 2010

REPRESENTATION

THE FATHER: In person

COUNSEL FOR THE MOTHER: Mr. Hoult

SOLICITOR FOR THE MOTHER: Marshalls & Dent

Orders

1. That with the consent of the father, the amended contravention application filed by him on 17 December, 2009 be struck out, with a right of reinstatement. 

2. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children A born … February, 1999 and C born … April, 2002 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation and IT IS FURTHER REQUESTED that Ms. Smith, who was discharged as independent children’s lawyer in earlier proceedings between the parties on 12 August, 2009, be reinstated in that role. 

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

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

5. That until further order the father spend time with A and C as follows :

   (a)on each alternate weekend from 8:00 am. on Saturday until 7:00 pm. on Sunday, commencing on 6 February, 2010 and fortnightly thereafter;

   (b)on each Tuesday during school terms from the conclusion of school until 6:00 pm., commencing on 2 February, 2010.

6. That paragraph (7) of the orders made herein on 12 August, 2009 be suspended until further order. 

7. That until further order each of the parties do all things reasonably necessary to ensure that the children are not exposed to bad language or racist comments. 

8. That the father be at liberty to press his application for make-up time with the children at a future hearing. 

9. That as soon as practicable the father and mother do all things reasonably necessary to enrol themselves and the children in a Supporting Children After Separation Program through the Family Relationship Centre, and THE COURT NOTES that the father has already attended an intake interview. 

10. That within seven days hereof the mother file and serve an application setting out with specificity the final orders sought by her. 

11. That within twenty-one days of service on him of an application for final orders pursuant to paragraph (10) hereof, the father file and serve a response, setting out with particularity the final orders sought by him. 

12. That on a date and at times to be advised by the court, the parties and children attend upon Ms. B, family consultant, for the preparation of an Issues Assessment pursuant to the Child Responsive Program and that the Issues Assessment be released by 18 March, 2010. 

13. That the father forthwith sign all documents provided to him by the mother which (she believes) are necessary to implement paragraphs (5) and (6) of the orders made on 12 August, 2009 AND THE COURT NOTES that the document or documents were provided to the father at the hearing this day and are required to be witnessed by a member of the police force or officer of the Victorian registry of Births, Deaths and Marriages.

14. That if the documents referred to in the previous paragraph have not been returned to the solicitor for the mother, duly signed and witnessed, by 27 January, 2010, then pursuant to s.106A of the Family Law Act 1975 :

    (a)a registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the father and do all acts and things necessary to give validity and operation to paragraphs (5) and (6) of the orders made herein on 12 August, 2009;  and

    (b)the father in default is ordered to pay all reasonable costs incurred by the wife for the purpose of enforcing this order. 

15. That it should be sufficient authority for the registrar to act pursuant to the preceding paragraph to have before him or her an affidavit sworn by the solicitor for the mother in which the solicitor deposes that the documents, duly sworn and witnessed, have not been received by him or her by 27 January, 2010

16. That paragraph 1 of the application in a case filed by the mother this day be otherwise dismissed. 

17. That all extant applications be adjourned to 9:45 am. in the senior registrar’s duty list on 25 March, 2010. 

18. That the reasons for judgment this day be transcribed and copies made available to the parties. 

19. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8704 of 2008

MR MARAICHERS

Father

And

MS TESSON

Mother

REASONS FOR JUDGMENT

1. This matter came before the court last week after the father filed an application seeking that the mother be dealt with for contravening parenting orders made in this court on 12 August 2009.  The case was listed before the Senior Registrar who does not have jurisdiction to hear a contravention application, so was adjourned until this week. 

2. On 17 December, 2009 the father filed an amended application for contravention, which has been served on the mother.  In support of his application he relies on two affidavits sworn by him: one filed on 10 December 2009 and one on 17 December 2009.  The two have much in common.  The father also relies on an affidavit sworn by his mother, the paternal grandmother, filed on 17 December 2009.  The mother relies on an affidavit sworn by her and filed on 22 December 2009.

3. The orders made on 12 August 2009 provided for the parents to have equal shared parental responsibility for their children, A and C, who were to live with the mother.  Until 19 December, 2009 the children were to spend time with the father on each alternate weekend, from 8:00 am. Saturday until 7:00 pm. on Sunday, and from the conclusion of school on each Tuesday until 6:00 pm.  The orders provided for the father to collect the children from school on a Tuesday afternoon and spend time with them in the K area, and return them to the mother’s home. 

4. The orders then provided that from 30 January 2010, now about a fortnight away, the father spend time with A and C on each alternate weekend from the conclusion of school on Friday until 7:00 pm. on Sunday, and again on Tuesday afternoons after school.

5. Other provisions in the orders provided for time in the September school holidays.  Paragraph 14 provided that during this long summer school vacation the children be with the father on each alternate weekend, from Friday at 4:00 pm. to Sunday at 3:00 pm., and from 4:00 pm. on each alternate Wednesday until 4:00 pm. on Friday.  They also provided for the father’s time to be suspended from 8:00 am. on 19 January to 6:00 pm. on 25 January, 2010.

6. When the matter was before the Senior Registrar, the mother foreshadowed an application to vary the final parenting orders made only a few months ago.  Today, with leave, an application in a case (the interim application) has been filed by her.  The father has not had an opportunity to file a response but has made a brief oral response.

7. There are no present proceedings on foot between the parties, so the mother will need to file an initiating application.  One was prepared and a copy provided.  I say nothing more than that the orders sought in that document sit uneasily with the orders sought by her in the interim application filed today.  As counsel has foreshadowed, it is probable that the final orders sought by the mother will be different to those contained in the document handed to me.

8. The father’s complaint is, in essence, that since October 2009 he has not seen the children. 

9. In the contravention application the father alleges that the mother has refused to allow the children to spend time with him pursuant to the order; she has refused to allow him to telephone the children pursuant to the order; the children have been taken out of school on Tuesdays, so they are not available at the time he is entitled (pursuant to the orders) to collect them.

10. In essence, the mother’s evidence is that she has withheld the children because the children have reported to her that they have witnessed their father being physically and verbally abusive to his mother, whom they know as YaYa;  that they have witnessed the father swearing at his mother and using foul four-letter words;  that they have been exposed to racist and offensive remarks from the father about Asian people and about Turkish people.

11. The mother’s evidence is that both children but particularly A, have been very distressed.  Her evidence is that A has become very anxious and has had to stay home from school because of psychosomatic symptoms like a sore throat or tummy ache.

12. The father denies the allegations.  His mother, in an affidavit sworn by her, also denies them. 

13. Counsel for the mother advised the court at the outset of the hearing that a mistake (referred to as a typing error) had been perpetuated throughout the mother’s affidavit, which referred to the children witnessing the paternal grandfather physically and verbally abusing the paternal grandmother.  The reference should have been to the father.  It is common ground that the paternal grandfather died more than two years ago, in April, 2007.

14. The father is representing himself and it must be said that his affidavits are very brief.  The mother is legally represented and her affidavit is more detailed.  She deposes to a number of matters but notably does not respond to the allegation of taking the children out of school early on Tuesday to avoid them spending time with the father.

15. It is also of note that the physical violence the father is alleged to have perpetrated against his mother is not detailed in the mother’s affidavit.  The mother is deposing to things told to her by the children, which is routine in cases such as this, but it is highly improbable a ten year old child would report that “dad was physically violent to YaYa” or words to that effect.  The father and his mother can have no idea of what it is he is alleged to have done. 

16. A is nearly 11 and C will be eight in April. 

17. It is also of concern that on the material before the court, this dispute has been fuelled by a dispute between the parties about implementation of orders made by me, not by consent, in August last year, relating to a change of surname of the children.  The mother’s evidence about that takes up several pages of her affidavit.  I do not propose to conduct a Royal Commission into compliance with those orders.  But I am concerned that that dispute may be the foundation on which the mother’s application rests.

18. In August 2009, I delivered a short judgment, a copy of which was provided to the parties.  That sets out the history of hostility and distrust between the children’s parents.  Children in these circumstances not infrequently have trouble moving between their parent’s worlds;  they sense their parent’s distrust and hostility and can tell a parent what they think will make that parent happy.  They can deny to each parent that they are comfortable with the other. 

19. The court hears evidence from psychiatrists and psychologists time and time again about the behaviour that can manifest in those circumstances and the sort of allegations children can make.  That does not mean that children have not been exposed to undesirable or inappropriate behaviour in the home of one or both of the parents.  Findings about that need to be made on the evidence. 

20. The independent children’s lawyer (ICL) supports the attendance of the family at one of the Supporting Children After Separation programs.  I understand the parties are happy to do that at the Family Relationship Centre.  The father has already completed the necessary intake forms.

21. I raised with counsel for the mother, and with the father, the potential for Ms B, who prepared the family report in the earlier litigation, to meet with the family and discuss the issues of concern with them.  She may be able to offer constructive strategies to help them support their children through changeovers and insights into the children’s developmental stages and needs.  Ms B is on leave.  I cannot say if the court will be able to accommodate such a request but it may be able to be achieved.

22. I should also say that at the outset, the father advised the court that his application for contravention was not his primary focus.  His focus was ensuring that his time with the children was reinstated and his relationship with them fostered.  From his perspective, that relationship is being undermined by the children’s mother.  He is content for the contravention application to be struck out with a right of reinstatement.  

23. The order the mother seeks is that rather than spending time with the children on alternate weekends (whether from Saturday morning or the end of school on Friday afternoon) the father have time with the children on alternate weekends during the day only.  That is, he would see the children from 10:00 am. to 5:00 pm. on Saturday and 10:00 am. to 5:00 pm. the following Sunday.  This would occur on alternate weekends and otherwise he should spend time with them as the parties agree.

24. If the mother alleges that there is a risk of physical and/or emotional harm as a result of being exposed to the father’s interactions with other family members and conversations with their father, the court must wonder why that risk would be contained or rendered acceptable by the children spending seven hours with him on a Saturday and Sunday.  It was not put that the risk is a nocturnal one.  The mother may simply say that in her view a shorter period gives rise to fewer opportunities for exposure to inappropriate behaviour. 

25. I also note the mother’s evidence that the children “would be prepared”, as long as the father did not behave as alleged, to spend shorter periods of time with them.  The children’s views are a matter the court must take into account but they are not necessarily determinative.  The primary considerations remain the important factor of fostering a relationship with both parents and the importance of protecting the children from physical or emotional abuse. 

26. In the judgment delivered in August 2009 I summarised the relevant legal principles and will not do that again. 

27. I am not satisfied that the father’s time with the children should be reduced to eliminate overnight time with them.  Without a decision as to the accuracy or inaccuracy of the claims allegedly reported to the mother, I am not satisfied that there is a risk of sufficient magnitude to justify that curtailment of his time. 

28. I appreciate the father has sought additional time and I also note the provision in the August 2009 order that orders for time are suspended between 19 January and 25 January, 2010, as the mother has arranged a holiday.  Nineteen January is next Tuesday.

29. I am satisfied that the best interests of the children will be met by maintaining the regime which operated in 2009 during school terms.  That is, until further order the children will spend time with the father from 8:00 am. on Saturday until 7:00 pm. on Sunday in each alternate weekend and from the conclusion of school on each Tuesday until 6:00 pm.  In the short term the extension of the alternate weekend time to commence on Friday afternoons (rather than Saturday morning) will be deferred.  Orders in those terms will ensure that the children’s relationship with their father is maintained;  there will be frequent and regular contact.  Deferring the introduction of a second night may take some pressure off the children. 

30. The father had sought make-up time.  Until further evidence is before the court I am not satisfied that can be determined.  His application for make-up time will be reserved.

31. Both of the parties are prepared to attend a Supporting Children After Separation Program at the Family Relationship Centre.  The father has already attended and completed the intake formalities; orders will provide for the mother to do that, too.

32. On the evidence presently before me, this is not a matter which could be included in the Magellan list.  However, the parties and children previously saw Ms. B, who prepared a detailed family report.  I will speak with the deputy manager of child dispute services and ascertain whether it is possible for Ms. B to meet with the family again and prepare an issues assessment, in the course of which she could discuss those issues with the children and with their parents.  Professional intervention at this time may contain or even resolve the dispute. 

33. There is no application for final orders before the court and orders will provide for the mother to file such an application and for the father to respond to it. 

34. Although the independent children’s lawyer was discharged at the conclusion of the earlier proceedings, Ms. Smith has attended court today and, I understand, attended when the matter was before the senior registrar last week.  The court is indebted to her for that courtesy and for her usual incisive submissions.  I am satisfied the nature of the dispute between the parents requires the best interests of the children to be represented in this round of proceedings and I will make orders to that effect, with a request that Ms. Smith be reappointed. 

35. I do not want to say much about the dispute about the signing of the documents to effect the earlier orders relating to the children’s surnames.  The father has advised he will sign the documents provided by counsel for the mother today.  He would sign them now but they need to be signed before a member of a police force or a staff member of the office of Births, Deaths and Marriages.  If the father fails to return the documents duly signed and witnessed by 27 January, 2010 a registrar of the court will be appointed to execute them in his name and do everything necessary to give validity and operation to paragraphs (5) and (6) of the orders made on 12 August, 2009.  If that were to occur, and the mother incurred costs, the father in default will pay those costs. 

36. As I am unable to obtain a return date before the senior registrar at the moment, a date will be inserted in the order sent to the parties.  If Ms. B is able to prepare an issues assessment I will ask that it be released by a date in mid-March and I will look for a date before the senior registrar in late March 2010. 

I certify that the preceding
36  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2010.

…………………………………………
Associate.