Marcic and Tait
[2010] FMCAfam 1447
•20 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARCIC & TAIT | [2010] FMCAfam 1447 |
| FAMILY LAW – Parenting orders – urgent application – suspension of final parenting orders – s.11F report – best interests of the children – interim orders. |
| Family Law Act 1975, s.60CC |
| Zabini & Zabini (2010) FamCAFC 10 Goode & Goode [2006] FamCA 1346 Hall & Hall [1979] FLC 90-713 Marvel & Marvel (No.2) [2010] FamCAFC 101 Joris & Joris (2008) FMCAfam 832 Trinder L, ‘Shared Residence: A Review of Recent Research Evidence’ [2010] FamLaw 1192 |
| Applicant: | MS MARCIC |
| Respondent: | MR TAIT |
| File Number: | MLC 316 of 2008 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 8 & 9 December 2010 |
| Date of Last Submission: | 9 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Mr O'Shannessey |
| Solicitors for the Respondent: | Kelly & Associates Family Lawyers |
| Independent Children’s Lawyer: | Mr Mulvany |
ORDERS
That paragraphs 3, 4 and 5 of the Orders made the 19th February 2009, be suspended.
That until further Order:
(2.1)Save for time provided hereafter in the long summer vacation 2010/2011 and for Christmas 2010, the children X born the (omitted) 2000, and Y born (omitted) 2003 (“The Children”).live with their father in each alternate week from cessation of school, or if not a school day 5.00pm, Thursday, until commencement of school the following Tuesday or if not a school day 10.00am on such Tuesday.
(2.2)The children be with their mother from 10.00am 25th December 2010, until 10.00am 26th December 2010, and the father from 24th December 2010 at 10.00am until 25th December 2010 at 10.00am.
(2.3)The children live with their father for two separate weeks in January 2011, school vacation, such weeks to be selected by the father and notified to the mother’s lawyer and to the Independent Children’s Lawyer by 17th December 2010, and it is directed that in one of such weeks the father ensure that for five consecutive days (four nights) as far as practicable he and the children spend time in the absence of other persons co-residing with them.
(2.4)The children live with the mother at all other times.
That the Independent Children’s Lawyer be at liberty to provide a copy of:
(3.1)The Orders of 8 and 9 December 2010; and
(3.2)The transcript of evidence of Mr E of 8th December 2010; and
(3.3)Any Reasons of the Court this day to any educational and/or medical and/or allied health professional assisting either or bother of the children and to discuss these proceedings and the children’s interests with any such person.
Save for any immediate emergency each parent be and is hereby restrained from arranging or taking either child to a medical and/or allied health professional without the prior written consent of the other and prior written notification to the Independent Children’s Lawyer.
Each parent be and is hereby retrained from discussing or permitting discussion with either or both children any aspect of these proceedings and in particular comments made or allegedly made by either child to Mr E.
The matter be adjourned for interim hearing on 22 February 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.
Liberty to apply.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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 under the pseudonym Marcic & Tait is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 316 of 2008
| MS MARCIC |
Applicant
And
| MR TAIT |
Respondent
REASONS FOR JUDGMENT
On 9 December 2010 the Court made interim parenting orders in terms recommended by the Independent Children’s Lawyer. With the agreement of the parties having given brief reasons ex tempore for doing so it was indicated reasons for decision would be provided as soon as practicable. These are those reasons.
The applicant Ms Marcic (the mother) is 40 years and the respondent Mr Tait (the father) is 45 years.
The parties married on (omitted) 1994, separated on 22 October 2007 and were divorced in 2009.
There are two children of the marriage, the children are X born (omitted) 2000, aged 10 and Y born (omitted) 2003 aged 7.
Background and proposals
On 19 February 2009, after a number of interim hearings, reports from experts and the appointment of an Independent Children’s Lawyer, final parenting orders were made by consent.
The orders provided for the parents to have equal shared parental responsibility and the parties agreed it was in the children’s best interests and reasonably practical for the children to live week about. These orders were:
“1.That all previous parenting orders made in these proceedings be discharged, save as to paragraphs 2, 3, 4, 5 and 11 of the orders made 16 January 2008 (being the Watch List and passport orders).
2.That the Husband and the Wife have equal shared parental responsibility for the children of the marriage:
FULL NAME DATE OF BIRTH
X (omitted).2000
Y (omitted).2003
3.That the children live with the mother and father in accordance with the orders made 20 May 2008 until 27 February 2009.
4.From 27 February 2009 the children shall live week about with each parent, changeovers to occur at 3.30pm or the conclusion of school Friday, the children to commence in the care of the wife on 27 February 2009.
5.For the long school vacation the children shall live as follows: -
5.1With each parent for one half of the long summer holidays from break up to 10.00am on 24 December at times agreed and thereafter for one half of the remaining school holiday period commencing 26 December at times agreed and failing agreement:-
5.1.1With the mother for the first half in 2009 / 2010 and each alternate year thereafter and for the second half in 2010 / 2011 and each alternate year thereafter.
5.1.2With the father for the second half in 2009 / 2010 and each alternate year thereafter and for the first half in 2010 / 2011 and each alternate year thereafter.
6. During Christmas and Boxing Day the children shall live as follows: -
6.1With the mother from 10.00am 24 December to 10.00am 25 December in 2009 and each alternate year thereafter and from 10.00am 25 December to 10.00am 26 December in 2010 and each alternate year thereafter.
6.2With the father from 10.00am 25 December to 10.00am 26 December in 2009 and each alternate year thereafter and from 10.00am 24 December to 10.00am 25 December in 2010 and each alternate year thereafter.
SPECIAL OCCASIONS
7.In the event the children are not in the care of the mother, they shall spend additional time with her as follows:
7.1From 6pm the evening before Mother’s Day to 6pm Mother’s Day.
7.2On each of the mother’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 5.30pm.
7.3From 2pm to 8pm on 6 January each year, being the maternal grandmother’s birthday.
7.4To attend family celebrations for the birthdays of each of the following:
7.4.1 Mr Marcic
7.4.2 Mr Marcic
7.4.3 Mr G
7.4.4 Ms G
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the mother to give the father not less than 14 days notice of any such event.
8.In the event the children are not in the care of the father, they shall spend additional time with him as follows:
8.1From 6pm the evening before Father’s Day to 6pm Father’s Day.
8.2On each of the father’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 5.30pm.
8.3To attend family celebrations for the following birthdays of:
8.3.1 Mr Tait
8.3.2 Ms Tait
8.3.3 Mr Tait
8.3.4 Mr Tait
8.3.5 Z
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the father to give the mother not less than 14 days notice of any such event.
9.All changeovers shall occur at school during school terms. In the event the changeovers occur outside school terms, the parent whose time with their children is commencing shall collect the children from the other parent's residence at the commencement of that parent's time.
RESTRAINTS
10.Subject to paragraph 9 hereof, neither party shall attend at the residence of the other, or enter into the other parent’s home without the prior consent of the other.
11.Subject to paragraph 15 hereof, only the parent collecting the children from school shall attend at the school for changeovers.
12.Neither parent shall discuss these Orders with the children, and the ICL shall explain the orders to the children as soon as practicable.
13.Both parents be and are hereby restrained from showing these Orders, or any documents filed in this Court to any person other than as provided for in these Orders.
SCHOOL AND EXTRA CURRICULAR ISSUES
14.Each parent forthwith authorise the principal of each school attended by the children from time to time to be sent to the other:
14.1A photocopy of each school report concerning each child;
14.2A photocopy of all school notices concerning each child;
14.3An order form for each school photograph of each child.
15.Each parent be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
16.The ICL forthwith arranged for a copy of these Orders to be provided to the principal of any school attended by the children.
17.Each parent shall ensure the children attend the agreed extra-curricula activities that fall during the time the children are in the care of that parent.
18.The children shall continue to attend (omitted) Primary School and neither parent shall change the children’s school without the consent of the other parent.
MEDICAL ISSUES
19.The parties herewith appoint Dr C of (omitted) Medical Centre as the children’s General Practitioner, and each party is restrained from taking the children or either of them to any other General Practitioner other than Dr C, or in his absence, his substitute at the medical centre, save in an emergency.
20.Both parties are at liberty to take the children to appointments with the following:
20.1Such pediatrician (sic) or other clinician as Dr C deems a referral necessary from time to time.
20.2Naturopath, Ms B
20.3Osteopath, Ms C, or in her absence, her substitute at the (omitted) Clinic.
and shall otherwise refrain from taking the children or either of them to any other therapist or clinician save by prior agreement in writing.
21.Within 14 days, the ICL provide to Dr C a copy of Dr E’s report dated 14 May 2008, and request Dr C consider referral of the mother to the enhanced primary care scheme.
22.The mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
PROVISION OF INFORMATION
23.The parties provide to the other at all times their respective residential and postal addresses and contact telephone numbers within 2 days of any change and inform the other of any change of residence not less than 21 days prior to such change.
OTHER ISSUES
24.Within 7 days, the mother do all such acts and things and sign all such documents as may be necessary to withdraw the application for the extension of the Intervention Order filed on her behalf at the Heidelberg Magistrates Court on 19 December 2009, and both parties request the Heidelberg Magistrates Court to vacate the defended hearing date allocated for that matter on 15 July 2009.
25.The Order for the appointment of the Independent Children’s Lawyer be otherwise dismissed.
26.Costs of the ICL be fixed at $4,950.00 and payable within 90 days with the husband and wife each to pay $2,475.00 being one half.
27.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.”
Litigation over division of matrimonial property continued and in Tait v Marcic [2009] FMCAfam936 the Court gave reasons for the decision dividing that property in the terms set out therein.
Unfortunately on 29 November 2010 the mother sought to file an urgent application for parenting orders in the Family Court of Australia supported by an Affidavit sworn 26 November 2010. The application sought the following interim orders:
“1.All times be abridged.
2.The Applicant Mother be excused from filing a Family Dispute Resolution Certificate in accordance with section 60I of the Family Law Act 1975.
3.A Family Report is prepared with the Report Writer to have regard to all subpoenaed material.
4.All previous parenting orders made with respect to X born (omitted) 2000 and Y borne (sic) (omitted) 2003 (“the children”) be discharged.
5The children live with the Mother.
6.The children spend time with the Father as deemed appropriate by this Honourable Court.
7.Such further orders and directions as this Honourable Court deems fit.”
The Court has been told by Counsel for the mother that when she sought to file the application in the Family Court of Australia a Registrar determined that the matter should be filed in this Court. Given the issues raised in the mother’s affidavit the matter was given an early court date of 8 December 2010 and the mother was instructed to serve the father as soon as possible.
The father filed a response on 6 December 2010 supported by an affidavit sworn that day. The father sought the following orders:
“1.That the Mother’s Application for interim Orders filed 29 November 2010 be dismissed.
2.That by way of make-up time the children live with the Father from as soon as practical until 18 December 2010 (start of children’s holidays) (3 days).
3.That there be the usual orders for the appointment of a Independent Children’s Lawyer for the children X born (omitted) 2007 and Y born (omitted) 2003 (the children); that Legal Aid Victoria be requested to assist and that as far as practical Legal Aid Victoria consider the appointment of Mr T. Mulvany (the ICL previously appointed).
4.That the Mother and Father do all acts and things to retain a therapist recommended by Ms B to provide family therapy and/or counselling in regard to the Mother, the Father and the children.
5.That the parties retain and attend upon Dr N (the family report writer in the 2009 proceedings) for the preparation of an urgent interim or duty family report as soon as practicable (appointment available 16 December 2010).
6.That the Mother and Father each be restrained from arranging for or attending with the children upon any referral to a counsellor or therapist or psychologist save as directed by Dr N and/or Ms B or agreed in writing.
7.That Final Applications be listed for a hearing of the threshold issue of whether there has been sufficient change of circumstance for the Mother’s application for final orders to proceed according to law.
8.That the Mother forthwith respond to the letter from the Father’s solicitors dated 2 December 2010 and provide details of counselling or therapy arranged by the Mother for the children.”
On 8 December 2010 Ms Smallwood appeared for the mother and Mr O'Shannessey appeared for the father.
S.11F Report
For the reasons given extempore on 8 December 2010 the Court made an order under s11F of the Family Law Act1975 for the parties and the children to attend upon a family consultant.
Later that day the family consultant delivered an oral report to the Court, the transcript of which I incorporate into these reasons:
“Mr E, SWORN [4.24 pm]
HIS HONOUR: Thank you, Mr E. Now, Mr E, were you, pursuant to an order made under section 11F today, asked to meet with Ms Marcic, Mr Tait, and their two little girls, X, born (omitted) 2000, and Y, born (omitted) 2003?
THE WITNESS: I was, your Honour.
HIS HONOUR: And, before doing so, did you have an opportunity to read the material that had been filed by the parties since 29 November?
THE WITNESS: Your Honour, I had an opportunity to peruse it. I would need to say that I wasn’t able to read it in significant detail. In particular, I was able to read most of the affidavit of the father, which includes the two reports from Dr N, and also the psych assessments from Dr E. I would have to be honest with the court and say that I haven’t read those in exacting detail but I’m aware of what I understand to be the predominant issues, and that was purely for the sake of time.
HIS HONOUR: All right. Now, you heard me explain to counsel for each of the parties here that I will ask you to deliver your report, and ordered a transcript of that report. At the completion of your oral report, on the basis of the interviews that I understand that you’ve had with parties and the children and each of them separately, counsel for each of the parties will have an opportunity to ask you some questions if they wish to do so, and then that transcript we’ll issue then, subject to anything counsel have to say, you’ll be excused. Have you prepared a memorandum on the basis of your interviews?
THE WITNESS: No, Your Honour. There just hasn’t been the time to do it.
HIS HONOUR: No. I appreciate that and, again, parties are grateful to you for making yourself available at such short notice in the exigent circumstances of this matter, so, unless there’s anything else from either of you, I’ll just ask you deliver your report verbatim.
THE WITNESS: Your Honour, pursuant to the order that was made today, I did see the parties in various configurations. I saw the parents together for a brief time and also each of the parents separately for a brief period. I had the opportunity to informally observe the father with the two children just prior to lunch, and just after lunch. The circumstances of that were that the mother agreed that if the children wanted to spend lunch with their father she would agree to that. And after I spoke with the girls they were quite fine about that, so I was able to observe how they initially interacted with him, responded to him both before and after lunch. I then had the opportunity to interview both girls separately.
I haven’t, unfortunately, had the opportunity to provide feedback to the parents and, again, that was simply because of the sake of time trying to get this matter back before your Honour within a reasonable timeframe. I have had a conversation with the respective lawyers and advised them of some of the comments that I’m most likely going to make before yourself. So, unfortunately, the parents may not be aware of what I’m going to say. Your Honour, just as a very brief history, these parents were married in 1994 having never previously cohabited, and they separated in 2007. After the separation the children lived predominantly with the mother, and the time with the father was, initially, somewhat sporadic but gradually increased to being four days and then, I understand, moved into a six-day period with the father and then, eventually, a week-about arrangement, which I understand commenced in February 2009.
And that was by virtue of orders that were made by consent in February of the same year. Since then there has been a week-about arrangement that continued until late November 2010 when a decision was made by the mother not for the – for that arrangement not to continue. So, effectively, the children had not seen their father since approximately 26 November 2010. I understand also, your Honour, that there is an interim intervention order in place and there is a hearing about that matter on 15 December, but that intervention order, although it names the mother and the two children as the affected family members, does allow for mediation, does allow for the children to see their father pursuant to the court orders.
Your Honour, I’m also very much aware that there has been substantial court disputation and previous extensive assessments done by a number of professionals. I have had the opportunity to read those to some degree and am aware of the assessment comments that have been made about the father, and also about the mother. In summary, while both Dr N and Dr E were critical of the mother and the father, I think it would be safe to say that Dr N was probably more critical of the mother and named a number of factors about her presentation that concerned her more than what she was concerned about in terms of the father. Some of those issues that have been raised in those previous assessments may impact on the court’s decision about whether the mother is an appropriate person to have the full time or the substantial care of the children.
Your Honour, if I can separate between the longer term and the shorter term. In terms of the longer term, my recommendation would be that – and it seems as if this has already been taken up – that there be the appointment of an independent children’s lawyer because of the complexities of this case and the significant court disputation between the parents. I also feel that matter was not to be resolved there would need to be a more comprehensive assessment undertaken. I know that there has been a number of those undertaken in the past but, again, the complexities of this case I think would warrant a family report to be done where the opportunity would be had by the family reporter to take on board all of the significant issues that have raised in previous assessments.
Your Honour, I would say that, in terms of the longer term arrangement, I would question the viability of the ongoing nature of a shared care arrangement for a variety of reasons but predominantly because of the poor parental relationship between the mother and father that are not acknowledged by both the mother and the father but also identified by the children. That would suggest to me that the idea of having an equal shared care arrangement may just be too problematic for these children and that if the court takes that view then, obviously, the question then becomes one of who should have the substantive responsibility for the care of the children. I’m not in a position, your Honour, to express a view on that and I’m not suggesting by any of the recommendations that I make in terms of the short term that either the mother or the father should be – or, particularly, that the mother should be seen as the person who takes on that substantive role.
I just say that I’m not convinced that an equal shared care arrangement is going to be viable in the longer term. And if that’s the case then – but I’m also not suggesting that, in the longer term, the mother should be seen as the person and can and should be providing the substantive care. Your Honour, in terms of the shorter term, while there wasn’t complete agreement between the parents as to what the arrangement should be, there was partial agreement in that the mother agreed that the children should spend time with the father and that that time should be overnight. The father wanted the week-about arrangement to resume and the mother was opposed to that for a variety of reasons which I think are well summarised in her affidavit material, so I won’t recount that. But, as I said, there was no agreement about arrangements for even the short term.
Your Honour, when I spoke with the children – and this is probably particularly important – the children were able to provide me with fairly clear information. Before I make a comment about what they actually had to say, I’ll reflect on how they presented with the father. From my view, they presented as being quite welcoming of the father. They were certainly happy to see him. They responded to him in a manner that suggested they were comfortable with him. There weren’t anxious about being with him. They weren’t apprehensive about being with him, and seemed to be quite spontaneous with him. They joked with him and there was no concern, from their part, about having physical contact with him or relating to him. So it doesn’t seem, from my part, your Honour, that they are concerned about being with him.
When I spoke to X and asked her about what life is like for her, her immediate reaction was to say, “It’s not very good.” It’s not good. “It’s not real good,” she said. When I explored that with her she identified a range of factors. She talked about how too much is happening for her at the one time. She doesn’t like that. She talked about lies going around. She talked about how she has had a lot of big outbursts where she has said things like, “I want to kill myself,” “I want to run to an orphanage,” and “I hate my life.” She also spoke about how the recent move of home with her mother has been something that has not been good because she has not wanted to move house. She also spoke about her father having a new partner and that she doesn’t like that as well. She certainly identified the issue of not liking the current 50/50 arrangement and clearly said that that was something that was not attractive for her. She did mention something about school and indicated that she had been bullied by some kids at school. So there were a range of factors for her.
When I asked her about – in balance – about some of the good things that were in her life she had to think to some degree about that, but she did indicate that she knows that she’s loved, although sometimes she feels that that’s not the case. And when I asked about who she felt lover her she did identify her mum, her dad, her sister, and her grandparents and friends. She feels as if she is listened to by some people, and when I asked her about who those people were she talked more about her mother being the one that she feels listens to her more – her teacher, her school principal. She didn’t identify her father as being somebody who listens to her as much as the others. She felt that she can’t really talk to her dad like she can with her mum, and she feels that when she talks to him she said, “I have to lie because I don’t feel safe talking to him because he gets angry.” Now, when I explored what that meant, what angry means, she didn’t suggest that her father was excessively angry or abusive or anything like that – just talked about him slamming cupboards, yelling, swearing – but there was no hitting or anything like that. So I’m not concerned that the anger creates a risk for her physical wellbeing or, substantially, her emotional wellbeing.
When I asked what her father might talk to her about and say things to her about she identified how he asks her questions about why people are going to court and why things are happening along those lines, and said that she asked – that her father asked her about that today and that she – and that was something that concerned her. Now, I did challenge her on that because, from my point of view, she looked quite happy when she came back from seeing her dad. But she said to me that she didn’t want to upset him and that she had really acted out being happy. Now, it didn’t appear to me, your Honour, as if she was acting – that it was fairly spontaneous. So there were some issues about that that concerned me that, if I’d had a greater opportunity, I would have explored with her.
The things that, as I mentioned before, your Honour, that concern her is the new partner. She’s not concerned that this new partner is mean or nasty or anything like that. It’s just that she doesn’t like the idea of her father having a new girlfriend. And so it would seem to me that one of the things for her is having to make the adjustment to new dynamics happening within the family so – that she’s struggling with that. And that’s something that a lot of kids in our jurisdiction have to move and struggle with it, but it seems to be an issue for her. Your Honour, she did also talk about some of the lies that she feels are going around. She feels that her father lies about things, but I would have to say that her – when I sought to explore that with her she wasn’t able to provide a great deal of content about that and I wasn’t overly convinced about some of the things that she was suggesting her father was lying about.
She was clear, though, that her mother and father don’t say a lot about each other in front of her. She’s clear, though, that the relationship between her parents is not good – that they don’t communicate, and that that lack of communication and that poor parental relationship is something that makes life quite difficult for her and her sister. And she gave an example of where she had wanted to get some clothes that were at her father’s place. She was living with her mum at the time, and mum and dad weren’t able to work that out and, as a result, she wasn’t able to get the clothes that she needed. So she was critical of them for the fact that they just can’t seem to work these things out. She identified that both her mum and her dad are at fault for these problems occurring, so it wasn’t as if she was just saying her dad was at fault or her mum was at fault, but both of them. “Because they just can’t agree on anything,” she said.
That sort of issue is something that is very difficult for her – that she feels that her and her sister are caught in between the parental conflict. And also she feels that – she gets frustrated and quite annoyed with both her mum and dad because they can’t work these things out, because they say different things at the different homes and, as a result, she said, “We don’t know who to listen to because mum says one thing; dad says another.” And that becomes quite frustrating and annoying for her. Her clear advice to her mum and dad is that they need to communicate more, not to get angry, and to listen to her.
Your Honour, because of the things that she had commented about – of saying that she had wanted to kill herself, and she hated her life, I sought to explore that with her because I wanted to have some sense of whether this little girl was forming suicidal thoughts and was a risk to herself. She did say that she had said that about two weeks – that she’d said that she hated her life - that she wanted to – she wanted somebody to kill her, and she wanted to run away to an orphanage. I did ask her about whether she had meant those things. She said that she didn’t really mean it but she had felt like doing it. But she assured me and I was confident that she was saying things that were accurate to me. That she didn’t feel that she would kill herself, so I don’t feel as if this girl is suicidal. Although she feels like doing that, she does not have any plan to carry that through and doesn’t really think that she would go through with it and, in fact, she says, “No. I’m positive I wouldn’t kill myself.”
In terms of running away, though, she said that she probably would. So if things got on top of her too much she feels that she would probably run away. When I explored with her who she would run away to and how that would happen she initially said that she would run to the nearest police station and then call some friends, and she identified who those friends were and, apparently, they are former neighbours – elderly women who have been former neighbours who live in (omitted). She later said that if things got on top of her she would probably run to those people – and (omitted) isn’t too far away from where she currently lives. She knows where to go. And, again, while that is obviously not an appropriate course of action for any child to feel that they have to take, at least she knows how to get to those people’s places and I don’t think would be putting herself in a significant risky situation. But, again,
I would say that it’s not an appropriate thing for this little girl to feel as if she has to do that.
The things that would make her feel as if she would run away again relate to her parent’s conflicted relationship and the problems in the parental relationship – the lack of communication, the fact that they can’t talk with each other without calling the police or taking each other to court. She wants them to be able to agree more on things. She gave an example. She says – now, I understand that she’s in grade 4 and not grade 5, but she said “I’m in grade 5”, probably referring to next year, and she said “I don’t know what high school I’ll be going to”. “That’s a problem,” she said. Now, obviously, that’s the problem so she sees her parents not being able to even decide on which high school she could be going to – as being just an example of how her mum and dad just can’t work things out, and how problematic that is for her, and the difficulties and the tensions and the frustrations that they creates for her.
Your Honour, I did talk to her about what she thinks should happen, in terms of the living arrangements. She was very clear and said, “Definitely not for 50/50.” But then she said, “I don’t want to live with one parent fulltime, and I want to see both parents for Christmas this year,” and she talked about Christmas being Christmas Day, Christmas Eve, New Year’s Eve, holidays, that sort of thing. So she was clear about that. When I asked her about who she wanted to spend most of the time with she said, “Mostly with mum and maybe five days with dad.” So it wasn’t as if she was saying, “Look, I only want to spend daytimes with dad” or “I only want to spend one night with dad.” She was identifying a reasonable and fairly substantial block with the father. But she was wanting to spend more time with her mum she said. When I asked her “Why?” She said, “I just do.” So I said, “Why not more time with dad?” And she said, “Because he gets angry, and I don’t like it when he gets angry, when he swears and yells.” So it seems as if she identifies her mum as being somebody who gets less angry than her father.
I talked to her about what that five-day block might look like and she said something that involved the weekend and some school time. So I proposed to her – and I was very mindful of not putting words in her mouth, but I talked about the idea of maybe a Thursday to a Tuesday, every second week. And she felt that that would be quite appropriate because that would allow her to have more time with mum, but also to have a substantial time with her father. So, your Honour, that was the material that I covered with X.
In terms of Y. I spent less time with her mainly because we had less available time, but this little girl presented substantially differently to X. She presented as more – sorry – as happier, more content - none of the identified concerns and worries that have been articulated with X. She was able to identify a range of things that she would put in her (omitted) list. She talked about feeling loved by her mum and her dad, and that she feels as if she is happy all of the time. And as she spoke about that it was quite apparent that she was identifying things that were real for her. In terms of the things that would be placed on her (omitted) list she, again, spoke – or she identified, as her sister had, about her parents having split up. And that was, again, a big thing for her. She talked about how they can’t really talk. They just don’t get on. And that makes her have a worried face, because they just can’t get along. She doesn’t know what’s going to happen. She didn’t feel that they would hurt each other, although she says that dad gets angry and sometimes says some mean things, but when mum and dad are together they don’t tend to say mean things to each other. They sort of have an in between level of angriness, if there’s such a word, between them when they’re together. And she was clear that she didn’t think that they would hurt each other. So while she didn’t identify a significant level of conflict, she did talk about the fact that mum and dad don’t along as being something that upsets and worries her.
Her sense of why she’s not living with her mum and dad on a week-about basis is because X doesn’t like it and that she wants to spend more time with her mum – sorry, “she” as in Y wants to spend more time with mum. She’s not sure why X doesn’t like it, but she thinks it might be to do with dad having a girlfriend and X not liking this person. And that’s simply because X has talked about it. Your Honour, she doesn’t really know why X doesn’t like the week-about arrangement but, as I said, she thinks it’s to do something with the new partner and she thinks that X just wants to have more time with her mum. In terms of herself, she said that she wasn’t sure. She wasn’t sure about it, but she thought it would be maybe better if she was spending more time with mum. She certainly wants to see her dad, but she felt that the seven days with him was too long. When I asked her what she thought might be a better arrangement she initially said three days and four days with mum. And she also talked about it has been hard for her not to see her father, and she was certainly happier when she saw him today. And as she spoke about that she was quite animated, so it was apparent that she was definitely happy about seeing her father today.
Your Honour, again, I was mindful of not trying to put words in this girl’s mouth, but I did talk to her about what her sister had said about an arrangement of, effectively, nine days with mum and five days with dad. I was interested in what her response would be. She quite spontaneously and immediately said to me with a big smile on her face, “Oh, I like that suggestion.” So it seemed to me that that sort of idea was something that appealed to her and when I asked her what she – why she thought that she said, “I would get more days with dad.” So, from her perspective, that would allow her more time with her father. So, from my perspective, your Honour, Y was a different situation to the older sister. She had less reasons that she was identifying as concerning her, although the issue about the parental conflict and the poor parental communication was certainly a big issue. She certainly wants to see her dad. She feels a little bit uncomfortable about a return to the seven-day arrangement, although wasn’t able to articulate clear reasons. But she wants to spend substantial time with her father.
Your Honour, I would suggest to the court that, in order to get this case moving in the right direction, that, at the very least, there should be a resumption of time with the father – immediate time with the father – that it should involve overnight periods, and that those periods should be substantial. Probably at this stage, your Honour, in order to facilitate the process, I’d probably suggest, on an interim basis, that it not be a resumption of the week-about but that it be something along the lines of what X had suggested. As I indicated earlier, I’m not suggesting that that be something that occurs on a longer term basis. And if it is that a shared-care arrangement is something is not going to viable in the long term then whoever is doing the family report, if that is so ordered by the court, will need to look at who is the most appropriate parent to provide the substantive care for these children. Your Honour, that’s my report. I hope that is helpful to yourself.
HIS HONOUR: Ms Smallwood.
CROSS-EXAMINATION BY MS SMALLWOOD [4.54 pm]
MS SMALLWOOD: So from your report, Mr E, I gather that it’s your overriding observation today that the shared care – equal shared care arrangement is not working for X and Y at this point in time, is it? It doesn’t appear to be working at the moment for a variety of reasons.
Sure? One of the bigger issues is the problems in the parental relationship.
Sure? And the conflict and so forth of which these girls are acutely aware, aren’t they? It seems to be the case, your Honour. Yes.
Yes. And both girls, to varying degrees – but if I can, in a nutshell – both girls said to you that they wanted to live with their mother, primarily, and have substantial time – substantial being my word, not theirs – with their dad? That seems to be the case, your Honour. Yes.
Yes. And whilst you have said to the court that you’re not recommending – that, on an interim basis, you consider there should not be resumption of week-about at this point in time, but that doesn’t mean that you’re extrapolating your recommendation to long term, necessarily? That’s somewhat correct, your Honour. I still question the viability of a shared – and equal shared care arrangement in the long term.
Yes? And if that doesn’t occur then, obviously, the question becomes who has the substantial care.
Sure. And, from what you’ve seen today and the level of conflict and acrimony between the parents, or the lack of ability to speak with one another in any kind of meaningful parental co-parenting way, shared care is an extremely unlikely option for the girls premium welfare into the future, isn’t it? It seems to be the case, your Honour. If I can just make one further comment, that both parents indicated that while they don’t do direct communication with a face-to-face communication they are able to share information via emails. But it seems, from what X had to say to me, that that is not always as effective as the parents may have wanted it to be.
And, given X’s statements to you and those of Y about what they want to happen at this point in time, that is, spend more time with mum, that’s what you recommend in accord with their wishes at this point in time, is it not? And I’d emphasise “at this point of time” with the emphasis being getting the process going again, re-establishing the children’s relationship with their father which, I understand from previous assessments, has been identified as being a strong relationship. From what I saw today, while there are some difficulties in it, substantively, it seems to be a sound relationship. And that needs to get going very soon.
Sure. And, from my client’s perspective, I can tell you that my client is – having heard – I did manage to give her some of the information that you gave me as we contemplated in the room prior to coming in here – and my client instructs that he position is that she, in her affidavit material, has said that X, particularly, wants to be noticed. Wants to be heard. Wants people to listen to what she says. If the care arrangement is varied now to provide for what X has articulated to you, that would, of course, provide X with the feeling that she was being listened to, wouldn’t it? It certainly would, your Honour.
And that would make her happier than she is now, wouldn’t it? It would appear to be the case, your Honour.
Yes? I would say, your Honour, though, that I would be concerned if, for example, a court was to adopt the nine and five, or some similar configuration, I would be concerned if that was eroded in any shape or form
Sure? Especially on an interim basis.
It shouldn’t be less than that. That’s what you’re saying? It certainly should not be less than that.
Yes. Okay. Fine. But it would be the optimal arrangement, would it now, nine and five, for the girls given their stated frame of mind to you today? I think a nine to five is a reasonable compromise for the girls. It would be consistent with what they are saying to me today – that they would be comfortable with. And it would need – it would be very important for both mum and dad to facilitate that process, and I emphasise not just dad, but mum also – needing to facilitate that to make sure that these girls feel that that is going to be an arrangement that mum and dad are okay with, and will support.
Sure. When you say it’s a reasonable compromise for the girls, it’s not a compromise for the girls. It’s actually what they want, isn’t it? That’s what they’ve indicated. Yes.
Yes. And my client will tell this court that she’s happy with that – that she just wanted the girls to be heard. Yes? And that’s what she’s indicated, yes.
Yes. And so there’s no reason for you to suspect that she wouldn’t cooperate with that, is there? Not on the basis of what has been said today.
No, that’s right? I am mindful, though, of past assessments which…?
Yes. The Dr N and the Dr E reports? do raise some concerns about the mother’s functioning.
HIS HONOUR: Have you got many more questions for Mr E? I’m just mindful of the time. And, given the limited time he has spent with the parties, forensic investigation of his opinions as to the parents ..... of limited utility, as least on an interim basis.
MS SMALLWOOD: Well, your Honour, what I am asking questions about is what your Honour should do now, and I wasn’t casting the net wide
HIS HONOUR: So do you have many other questions for Mr E?
MS SMALLWOOD: Not particularly, no.
HIS HONOUR: All right.
MS SMALLWOOD: Now, your assessment of the girls today, particularly X, is she seemed to be concerned about the husband’s new partner – didn’t like it.
MR O'SHANNESSY: Your Honour, with respect, given the time and the – 5 o’clock. My friend has just cross-examined for the entire available – I object to this ..... confirming evidence. ..... the witness is going to be contradicted. Fine, but
MS SMALLWOOD: All right. Well, as long as everybody is clear that nine to five is the recommendation, I’ve got no further questions.
HIS HONOUR: I heard that.
CROSS-EXAMINATION BY MR O'SHANNESSY [5.01 pm]
MR O'SHANNESSY: Mr E, just in terms of moving forward, do you have any views about the utility, firstly, of a family report and who should undertake that?
Because the parties aren’t going to agree about it? Your Honour, I have expressed a view to the parents – sorry – the solicitors. While I understand the concerns that the mother has about somebody like Dr N doing another report, I do see some value in the same person doing an updated assessment on a family in this circumstance. It allows a professional, an independent professional, to map progress, deterioration, changes, that sort of thing. But I understand that Dr N is a private practitioner – charges for that – and that the parties would not be in agreement about that. But, from a professional point of view, I would see some value in somebody like her, or the same person doing an update assessment.
Thank you. Now, in terms of the – as I understand it, the actual time that you were able to observe the father with the children was necessarily – this is not a criticism – was necessarily limited to, would it be, a minute or two at the changeover, if you like, when they go with him for lunch, and when they go with him – when they return with him from lunch. That’s the extent of the observation of the children in his company? I wouldn’t say it was a minute.
Okay? If you want me to put a time limit on it I’m not sure what it would be.
It might be a couple of minutes? But I would say that is was – the interactions that I’ve observed, your Honour, were sufficient to suggest to me that there was an emotional connection between the children and their father, and that was reciprocated. If I had had any concerns about the children’s level of apprehension about going off with their father I probably would have not facilitated it. But I didn’t have those concerns. So, while it was limited, I think it was sufficient, in the current context.
Thank you. And, whilst we now know that Ms Marcic has instructed her counsel to accept your nine/five proposal, when you spoke to Ms Marcic, what proposal did she have, if any, about the time that these children should spend with their father? Your Honour, if I may refer to my notes. I would have to say, your Honour, that it was difficult to pin the mother down on specifics. She generally opened with wanting the court to help the situation. When I sought to tie her down she was clear that she didn’t feel that the week-about was a good option. She would prefer the majority of time being with her and a smaller of overnights with the father. But it took a bit of a process to tie her down from the very general to something that was a bit more concrete and specific that would be helpful for the court to be aware of.
And who suggested the children spend lunchtime with the father? You, the father, or the mother? Your Honour, my recollection was that I said to the parties, because of the time constraints, we won’t be finished by lunch. We need to work out arrangements for lunch. I think I might have suggested to the parties the possibility of the father having lunch. My recollection isn’t completely accurate on that, but certainly the mother wasn’t opposed to that. She was certainly prepared for me to talk with the kids about that, and to indicate to the children that she was agreeable to that, which I did.
And it may not make any difference but, 26 November was when they were due to be in the father’s care. As a matter of fact, the children have, in fact, been in the mother’s care since the previous changeover on 19 November? Okay. Thank you.
Now, I expect necessarily, because of the intrinsic restraints upon the exercise that you’ve been asked to do today – or you may have something to say about this – were it to turn out that there is substance in the observations of Dr N about both parties, but in particular the mother, and were it to turn out that there is substance in the observations of Dr E, was there anything that you saw from the mother, in her presentation today, that would indicate some significant change of attitude or personality to the father as a parent? That’s somewhat difficult for me to answer, your Honour. I’d simply say that the mother emphasised today that there was a need for them to communicate more effectively with each other, and that this is an issue that has caused her some concern and the children. If that is a genuine response and a genuine indication that she wants to address that issue then I would see that as a positive thing. But I’m not sure that I can comment comprehensively about where that fits in with what Dr N and Dr E have apparently assessed about mum.
And the next question relates to the same topic. Given that – as I understand it, you have a concern that if those prior assessments have substance that there is a real risk in this case that what the children are saying to you relates to the projection of the mother’s anxieties onto the children rather than their own, if you like, uninfluenced wishes? There’s certainly the possibility of that, your Honour, and, given that previous assessors have suggested that that might be the case, that issue may be more paramount. I sought in the limited time that I had today to ascertain that. X – I emphasised with both the girls that what I needed to hear from them was only true stuff. That was the term I used – not make-up stuff, not pretend stuff, and only things that they knew, and only things that they were saying and not what other people are saying now. On a number of occasions, particularly X reassured me that this was her material, but I’m very much aware that children of her age can be very aware of concerns/anxieties that a parent has and may, as a result of that, decide to take a particular stance with a parent.
And I also take it that you’ve simply been unable to explore and trace whether there is any issue of there being the same concerns expressed by the children that have been previously expressed by the mother, in terms of how much this…? I’m sorry. Can you repeat that? Yes.
MS SMALLWOOD: Well, Your Honour, I object to that. The concerns that were expressed by the children were the girlfriend
MR O'SHANNESSY: I’ll rephrase the question.
HIS HONOUR: He’s going to rephrase.
MR O'SHANNESSY: In terms of the issues, in particular that listen to and anger of the father issues, have you been able to examine or explore whether - this is X being listened and the father being angry – have you been able to – and I expect you haven’t – been able to
HIS HONOUR: So is that asked and answered?
MR O'SHANNESSY: No. Well, I’m suggesting that you haven’t and he can say “yes” or “no.” Haven’t been able to explore the extent to which that’s been a theme expressed by the mother in past times? No, I haven’t.
No. And that would be
HIS HONOUR: You were right.
MR O'SHANNESSY: Yes. And that would be on a final hearing, and a proper exploration in a family report, one of the matters to be explored as to the weight to be given to what the children are saying? That would be an important issue. Yes, your Honour.
And have you been able to explore – and I’m going to suggest that you haven’t – the extent to which the mother would have an issue with the father having a new partner, and that being projected onto the children.
MS SMALLWOOD: Well, Your Honour, I object to that. There is absolutely no suggestion whatsoever that that’s been
MR O'SHANNESSY: Well, it is going to be tomorrow.
MS SMALLWOOD: ..... projected by – this witness has at no stage suggested anything other than what the children registered to him. And he has not given any evidence at all there was any connection with the mother.
HIS HONOUR: I’ll allow Mr O’Shannessy to ask the question so that we can hear from Mr E as to whether there was any suggestion.
MR O'SHANNESSY: The question was whether he’s had the opportunity to explore that
HIS HONOUR: Yes. Yes.
THE WITNESS: And no, Your Honour. The simple answer is no.
MR O'SHANNESSY: Thank you.
FURTHER CROSS-EXAMINATION BY MS SMALLWOOD [5.10 pm]
MS SMALLWOOD: Could I just ask one more question, your Honour, just in case you don’t realise. When you spoke with X and Y, that was just after they’d spent an hour at lunchtime with their father, wasn’t it? That’s correct.
Yes.
HIS HONOUR: Okay. Mr E, thank you.”
At the conclusion of that report an order was made pursuant to s68L of the Family Law Act 1975 for the appointment of an Independent Children’s Lawyer for the children with the parties to bear the costs equally. The matter was then stood over until 9 December 2010.
On 9 December 2010 Counsel for each of the parties made submissions. At the conclusion of those submissions and, in light of the evidence, the Independent Children’s Lawyer put the following interim position to the Court as orders until further order in the children’s best interests:
“1.That paragraphs 3, 4 and 5 of the Orders made the 19th February 2009, be suspended.
2.That until further Order:
(2.1)Save for time provided hereafter in the long summer vacation 2010/2011 and for Christmas 2010, the children X born (omitted) 2000, and Y born (omitted) 2003 (“The Children”).live with their father in each alternate week from cessation of school, or if not a school day 5.00pm, Thursday, until commencement of school the following Tuesday or if not a school day 10.00am on such Tuesday.
(2.2)The children be with their mother from 10.00am 25th December 2010, until 10.00am 26th December 2010, and the father from 24th December 2010 at 10.00am until 25th December 2010 at 10.00am.
(2.3)The children live with their father for two separate weeks in January 2011, school vacation, such weeks to be selected by the father and notified to the mother’s lawyer and to the Independent Children’s Lawyer by 17th December 2010, and it is directed that in one of such weeks the father ensure that for five consecutive days (four nights) as far as practicable he and the children spend time in the absence of other persons co-residing with them.
(2.4)The children live with the mother at all other times.
3.That the Independent Children’s Lawyer be at liberty to provide a copy of:
(3.1)The Orders of 8 and 9 December 2010; and
(3.2)The transcript of evidence of Mr E of 8th December 2010; and
(3.3)Any Reasons of the Court this day to any educational and/or medical and/or allied health professional assisting either or bother of the children and to discuss these proceedings and the children’s interests with any such person.
4.Save for any immediate emergency each parent be and is hereby restrained from arranging or taking either child to a medical and/or allied health professional without the prior written consent of the other and prior written notification to the Independent Children’s Lawyer.
5.Each parent be and is hereby retrained from discussing or permitting discussion with either or both children any aspect of these proceedings and in particular comments made or allegedly made by either child to Mr E.
6.The matter be adjourned for interim hearing on 22 February 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.
7.Liberty to apply.
8.That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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.”
In submissions in support of Exhibit ‘ICL1’ the Independent Children’s Lawyer placed particular weight on the concerning issues raised in the s11F report. The Independent Children’s Lawyer submitted that the recommendations in that report were appropriate on an interim basis. The Independent Children’s Lawyer was particularly troubled by the willingness (or lack of it) and capacity (or apparent lack of it) of the parties to co-operate. The Independent Children’s Lawyer said some weight could be given to the views of the children, and orders on an interim basis should be made against the background of the “war” between the parents.
In light of the position of the Independent Children’s Lawyer (as in Exhibit ‘ICL1’) which the mother told the Court she agreed to, Counsel for the father provided a minute of interim orders he sought which requested a change from the interim orders sought in his response.
Those orders were:
“ 1.The mother’s application for interim orders filed 29 November 2010 be dismissed.
2.That by way of make up time the children live with the father from as soon as practicable until 18 December (start of children’s holidays) (3 days).
3.That by way of the usual orders for the appointment of an Independent Children’s Lawyer for the children X born (omitted) 2007 and Y born (omitted) 2003 (the children); that Legal Aid Victoria be requested to assist and that as far as practicable Legal Aid consider the appointment of Mr T. Mulvany ( the ICL previously appointed).
4.That the mother and father do all acts and things to retain a therapist recommended by Ms B to provide family therapy and/or counselling in regard to the Mother the father and the children.
5.That the parties retain and attend upon Dr N (the family report writer in the 2009 proceedings) for the preparation of an urgent interim or duty family report as soon as practicable (appointment available 16 December 2010).
6.That the Mother and Father each be restrained from arranging for or attending with the children upon any referral to a counsellor or therapist or psychologist save as directed by Dr N and/or Ms B or agreed in writing.
7.That final applications be listed for a hearing of the threshold issue of whether there has been sufficient change of circumstances for the Mother’s application for final orders to proceed according to law.
8.That the Mother forthwith respond to the letter from the Father’s solicitors dated 2 December 2010 and provide details of counselling or therapy arranged by the Mother for the children.
9.Such further or consequent orders as the court sees fit.
10.That paragraph 15 of the orders of 19 February 2009 be varied to add at the end of the paragraph and that the parent with whom the children are not residing shall not attend at the commencement or conclusion of each school day.”
Counsel for the father, in face of Exhibit ICL1, only pressed for orders as per 1, 2, 8, 9 and 10 from the above minute. The Independent Children’s Lawyer submitted interim orders in terms of Exhibit ‘ICL1’ would get the matter “back on track”, allow him to get “a handle” on the issues affecting the children and on the return date allow the Court to take back control from the parents for the children’s sake. Finally, the Independent Children’s Lawyer specifically noted on the next occasion the Court would be asked to consider what orders should be made in relation to experts the children and parents should see. Ultimately given this, and whilst this was a matter referred to in submissions by the parties, and the urgent nature of the matter and the early return date neither party pressed for an order to the contrary on the day.
Approach to interim parenting orders
In Zabini & Zabini (2010) FamCAFC 10 Warnick J said:
(1) The usual interim hearing for parenting orders involves fact‑heavy material full of contention that cannot be resolved on the papers, yet there is no cross‑examination. Nor does any party usually bear an onus to assist the Court in the determination of an application or response.
(2) In such hearings since the amendments to the Family Law Act in 2006, in reasoning to a conclusion as to the proper parenting orders, the Court must follow one or other of the prescribed paths, yet the essential platform underpinning each of those paths is a detailed fact‑finding process required by section 60CC(3) of the Family Law Act 1975.
(3) Thus a dilemma of labyrinthine complexity arises.”
The principles to be applied on the determination of an interim application such as the present were reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 (“Goode”).
In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows::
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”[1]
[1] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
As set out in Goode (supra) in interim proceedings it may be appropriate, given the nature of those proceedings, to find that the presumption of equal shared parental responsibility should not apply.
It is also clear that the presumption may be rebutted if there are reasonable grounds to believe that family violence has occurred.
If the presumption applies the Court is required to consider whether spending equal time with both parents is in the best interests of the children whether the children spending equal time with both parents is reasonably practical and to consider making an order to that effect.
If the Court does not make an order for the children to spend equal time with each parent, to consider whether the children spending substantial or significant time with either of their parents in the children’s best interests, and whether spending substantial or significant time is reasonably practical, and then go on to consider making orders for the children, subject to it being in their best interests.
When considering whether equal time or substantial and significant time is in the best interests of the child, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA(1) and (2) and MRR v GR (2010 HCA 4).
Consideration
During the course of submissions the Court made available to the parties’ a paper ‘Shared Residence: A Review of Recent Research Evidence’[2]. That paper said in part:
“The evidence is now strong that it is not the care timetable that makes a difference but how well parents are able to work together and the quality and sensitivity of their parenting. The evidence is particularly strong that rigid shared care arrangements most likely to result from court orders or mediation, may be appreciated by fathers, but are not liked by children and may do harm. Contrary to the hopes of some, it would seem that shared care arrangements in high conflict cases are not reasonably transformational and instead may merely increase and perpetuate damaging conflict.”
[2] Trinder L [2010] FamLaw 1192
This was done because what is clear is that there are high levels of conflict between the parties in this case and little or no communication. Indeed the parties own evidence is their communication is not good and they do not avoid conflict. The impact on children at such conflict is well documented. The research of Ms M is perhaps the most regularly cited in this regard[3]. In one recent paper Ms M said:
“Children in conflicted shared parenting are exposed to high levels of conflict between their parents, at a type that embroils them in or uses them in the expression of conflict between the parents. These children are frequently distressed by living arrangement.”.[4]
[3] Ms M et al ‘Shared Care and Children’s Best Interests’ (2008) 20 Australian Family Lawyer 3-16
[4] Ms M et al May 2010
Research by Ms M has highlighted what is required of parents (and I can’t be sure these parents have this at this stage) to make shared residence work for children:
“(1)Socio-economic equipment: adequate housing and financial resources, work place flexibility, geographic proximity.
(2)Relationship equipment (or parent-parent and parent-child relationships): low pre-separation conflict, mutuality of the decision to end the marriage, adequate ego maturity of both parents, child focused parenting and adequate reflective functioning, parental mental health, absence of violence, absence of substance abuse.
(3)Maintenance equipment (or flexible child-centred rather than rigid arrangements): mutually deciding on joint parenting, motivation to make it work, good planning, communication and conflict-avoidance, sharing basic child rearing values, capacity for business-like, respectful working relationships, ‘tribal’ (extended family/friends) support’.
(4)Developmental equipment: taking account of ‘developmental stage’ for under fours as a factor regardless of socio-economic, relationship and maintenance equipment.”[5]
[5] See footnote 2
This is social science research and as such does not guide the Court in the approach to the legislative pathway in this case. It was provided to the parties in the hope that they realise they are not alone and that they will learn from it.
These are interim proceedings and the Court in this matter has little independent evidence save for the report of the family consultant with all the qualifications that were inherent in that abridged process and readily apparent on the face of the transcript.
The Court has had no opportunity to test the evidence of either party by cross examination. It is therefore very difficult for the Court to make any findings in such circumstances. The Court has to be very careful in the approach it takes and given the issues raised consider orders which can address those issues at least in the short term until some appropriate independent evidence is obtained.
Save for the s11F report the Court has not got detailed up to date independent evidence of how the children interact with their parents.
For obvious reasons given the circumstances, issues canvassed in a report by professionals including if necessary a psychiatric report are likely to be important in the ultimate resolution of this case.
As the authorities referred to earlier make clear, in making any decision concerning the children at the interim stage their best interests are the paramount consideration.
The competing proposals of the parties have already been set out above as (given this) has the issues in dispute. Also set out above has been the agreed and contested relevant facts and the material the parties relied on.
There were no submissions made addressing “seriatim” the relevant s60CC factors or particular submissions on those.
As the decision in Goode & Goode (supra) makes clear there is a discretion not to apply the presumption on an interim basis under section 61DA(3).
The attitude of the parties and their material before the Court in this matter raise in my mind sufficient concerns about their ability to exercise that responsibility cooperatively, such as to make it unsafe for the children’s sake, in my view, to apply that presumption on an interim basis. This is because the application of such an interim order given the parties material is likely to be pregnant with the possibility of further conflict which would adversely affect the children. (see Marvel & Marvel (No.2) [2010] FamCAFC 101)
This case at this stage is about the difficult circumstances of the parents’ relationship and the impact it is having on the children and that is clear on the face of the parties’ material.
The position of the parties, like their relationship is polarised. The separation between the parties was difficult for everyone and the litigation history is testament enough of that.
However, very often parents overlook the fact that just as separation is traumatic for them so it is for the children. Their lives are turned upside down. What is familiar is changed and the children are sometimes expected to accommodate and adjust to very different circumstances in the homes of separate parents. Such would appear to be the case here.
Moreover children are very often influenced, alive to and particularly sensitive to the emotions of those who surround them.
The parties, I suspect are quite different in personality. Their differences in personality may inform their parenting style. Both parties are critical of the other parent and how they have parented the children.
What is clear thus far on the face of the s11F report is that the children are unsettled, by their parents, their behaviour and recent changes in their lives.
At this stage it is not possible to know why the children are manifesting the distressing behaviour as referred to in the parties’ material and contained in the report.
I am concerned about this case for a number of reasons. The material in the mother’s affidavit and the issue between the child X’s behaviour is just one issue. The behaviour of the parties and the tactics undertaken in the cycle of litigation they appear to be caught in, the reported lack of communication and co-operation are other factors. However my major concern is to spare the children the worst aspects of the litigation and disputes between the parents.
Self evidently litigation would be stressful for the parties, the mortified expressions of the parties in Court is enough to indicate that. So it also would be for the children.
I am concerned that the children may be being placed in the middle of a conflicting, gaming and poor relationship between the parties with its absence of communication and co-operation and consequential adverse affects for the children.
The exposure of the children to such parental dynamics may be the reason why X is acting out or responding in the unusual ways reported to the experts referred to in the parties’ material and the family consultant. This may be a result of both the stressors and situations which her parents should, were they observing their parental responsibilities, be shielding her from, or other changes in her life.
What is happening here I don’t know yet. However, on the material before me there are all the indicia of a very conflicted relationship between the parents which is impacting adversely on the children.
Having considered the submissions of both of the parties and the Independent Children’s Lawyer as well as the s.11F report, I have come to a conclusion on an interim basis. The only independent evidence that has been tested in this matter thus far is the s.11F report. I am entitled to put some weight on its recommendations (see Hall & Hall [1979] FLC 90-713). There was no submission made to the contrary.
I have considered all of the issues in the context of what for these two little girls is a frightfully confusing and distressing period in their lives. They have gone through enormous change. Whether it be that they have moved home, the home they have known for the whole of their lives or otherwise. Whether they have been placed into a situation where their parents have separated and they have had to navigate arrangements in different homes or otherwise. Their father is also developing other relationships and other friendships and they have to come to terms with those and potentially a new extended family.
As was poignantly illustrated in the s.11F report yesterday, the girls feel that they are not being listened to. Mr O’Shannessy rightly said that the Court cannot allow these children to be placed in a situation where they think they can have the say in determining what happens with the orders. That is a proper submission.
Ms Smallwood’s submissions also rightly point out - and this is probably the pre-eminent reason why the court has opted to make orders until further order in terms of Exhibit ‘ICL1’ - these children are caught in a cycle of conflict between their parents. There is a risk that they may be triangulated. That may do irreparable and untold damage to their best interests. These girls need routine. They need certainty but most of all they need stability.
Ms Smallwood noted this was a dispute over parenting orders. Recent research talks about how parenting proceedings are sometimes about a fight over time with children. Parents fight about it. Courts divvy it up and the children just long for it (see Joris & Joris (2008) FMCAfam 832 at 18-23). They want special time with dad. They also want time out to regroup and as the Independent Children’s Lawyer has said, time to stabilise.
What is very understandably a dreadfully, dreadfully distressing situation for each of the parties has been made doubly difficult because the Court cannot make findings of fact on contested issues at this stage. There are so many issues that are contested. What is not contested is the manifest good relationship the children have with both of their parents. The children are loved, well loved. What is hotly contested, however, is the fundamental bulwark of the Act. Whether these two parents can live up to what the Act says is in the best interests of the children, their parents having equal shared parental responsibility and whether they are not being served well in spending equal time across each home. There are also serious allegations made by the father that the mother has breached the obligations in the previous orders and taken the children to various medical and other professionals all without his knowledge and permission.
As indicated the Court is not going to apply the presumption in this case at the interim stage. To do so is pregnant with too great a possibility of further conflict and risk to the children. The parties own material makes that clear. As Ms Smallwood said in submissions, the parties are in dispute on pretty much everything. What they do agree on is that the current arrangement is not working. They blame each other for that.
No-one who sat and listened to the report could fail to be affected by the poignant comments reportedly made by the children.
These children are caught in the waves of uncertainty associated with changes in all aspects of their lives and manifesting the results of the conflict that their parents have exposed them to.
Not surprisingly, when you apply the legislative pathway that Goode refers to, the primary considerations pull in opposite directions.
Given the urgent nature of the application neither party argued against the orders from 2009 being suspended until further order to allow necessary therapeutic and other interventions recommended by the Independent Children’s lawyer to be undertaken and the parties to be able to argue their respective positions in the new year.
The orders put by the Independent Children’s Lawyer will allow the children to maintain a meaningful relationship with both parents but do so in a way that has regard to the other primary consideration under s.60CC(2)(b). There are also intervention order proceedings on foot which appear to be related to ongoing conflict between the parents.
I have already referred to the submissions of the parties on the views of the children. I accept the submission of the Independent Children’s Lawyer that in the particular circumstances of this matter and given the s.11F report those are matters I can and should take into account (see s.11F report, see also paragraph 8-23 of the mother’s affidavit filed 29 November 2010).
A number of the other section 60CC(3) factors would also be particularly important for the reasons I have already given. The attitude of the parents to their responsibilities, lack of communication, cooperation, and commitment to providing information about long-term issues affecting the children, are all important issues. It does not appear to be controversial that this has not happened.
In my view the s.11F report provides important information on the children’s relationship with the parties. The majority of the submissions of the parties focused on criticism of the other party and sought impugn the willingness of the other parent to facilitate and encourage a close and continuing relationship with them. However on any description pursuant to the orders sought by the Independent Children’s Lawyer as recommended by the s.11F report will ensure the children spend substantial and significant time with the father. This includes some one on one time for the children with the father over the long summer holidays.
The next factor in s.60CC(3) is important in this case. The proceedings were brought in the circumstances referred to earlier and the changes recommended to the children’s spend time arrangements across their parents households are it appears necessary on the material before the Court to shield then from the effects of their parent’s conflictual relationship.
There was no suggestion there was practical difficulty or expense in this matter that mitigated one way or the other for either parties proposal.
The next factor was also a focus of the criticisms made by each parent of the other in submissions. Submissions on behalf of the father noted after the children were with held by the mother and he had tried to “self help” his request of the mother to spend time with the children had been refused (see Exhibit R1).
Importantly in submissions, which I accept on this factor the Independent Children’s Lawyer indicated that on the material then available this factor was particularly “troubling”. The relationship (or lack of it) and communication (or lack of it) informs the parties lack of capacity to provide for the children’s needs. I am satisfied the arrangements recommended by the Independent Children’s Lawyer are to be preferred to a week about arrangement on an interim basis in terms of providing for the children’s needs.
In relation to this factor the Independent Children’s Lawyer noted concerns that the mother may be accepting the children as witnesses of truth rather than little girls. This is an important issue and the parties will need to be seen by a professional and the arrangements for this will be determined in the new year.
The next relevant factor is one in respect of which both parties can be criticised. The attitudes to the responsibilities of parenthood by one parent are questioned by the other parent. The “war” between them that the Independent Children’s Lawyer refers to must necessarily be of concern in this regard and I have already made comments earlier in relation to their failure to communicate and co-operate in such a way as to shield the children from conflict. There were no submissions made on the remaining s.60CC(3) factors.
The parties also roundly criticised each other in relation to the factors in s.60CC(4). The submissions of the father do raise questions as to the behaviour of the mother in this regard. Unfortunately it is not possible to make findings on this at this stage but it may be necessary to do so in the near future.
The week about arrangement appears not to be working. Why, it is not possible to say at this point. However, on the material before the Court, it doesn’t appear to be in the children’s best interest at this interim stage. Exhibit ICL1 will see them spending substantial and significant time with the father and on special occasions and is reasonably practicable. As indicated for the above reasons having regard to the role of the Independent Children’s Lawyer, the nature of the interim hearing and the material upon which the parties relied at that hearing orders are made in terms of Exhibit ‘ICL1’ and the Independent Children’s Lawyer will engross the minute.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 20 December 2010
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