Marino and Marino
[2010] FMCAfam 318
•5 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARINO & MARINO | [2010] FMCAfam 318 |
| FAMILY LAW – Children aged 4 and 3 interim hearing – children have previously lived in equal time arrangement following final orders made in March 209 – since orders made father has been charged with assaulting mother – mother’s evidence is that children are stressed by current arrangements – father denies assault – father disputes children are stressed – best interests – whether reasonably practicable to continue equal time arrangement – necessary to re-fix matter for final hearing and order fresh family report. |
| Family Law Act 1975, ss.60CC; 65DAA |
| Applicant: | MS MARINO |
| Respondent: | MR MARINO |
| File Number: | ADC 2600 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 5 March 2010 |
| Date of Last Submission: | 5 March 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 5 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lee |
| Solicitors for the Applicant: | Johnston Withers |
| Counsel for the Respondent: | Mr Oliveri |
| Solicitors for the Respondent: | Windevere Bellman |
ORDERS
The parties enroll [X] at [omitted] Primary School at [address omitted] so that he can commence primary school in term three of 2010 provided each party contributes one half of all necessary fee and expenses.
Both parties enroll at the first available “Kids R First” program provided it is not necessary for them to attend the same course scheduled in terms of its time.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the psychological ramifications of shared care regime of children and the viability of the parenting responsibility to sustain such a regime, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties with such report to be prepared and released on or before 28 May 2010.
The matter is fixed for final hearing before Federal Magistrate Brown on 5 & 6 August 2010 at 10:00am NOTING 2 days allowed.
That further consideration of this matter is adjourned to 4 June 2010 at 9:30am when it is anticipated the family report will be to hand.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The orders of 22 May 2008 and 19 March 2009 be varied so that the presumption of equal shared parental responsibility is suspended and the children live with the father as follows:
(a)from 15 March 2010 at 8:00am until 5:00pm the following Thursday, 18 March 2010; and
(b)each alternate week thereafter from 8:00am Monday until 5:00pm Thursday.
NOTING the arrangements for the children to live with their father on the current weekend will continue with the children to be returned to their mother’s care at the normal scheduled time.
The parties exchange the children at the beginning of each period of time at the [P] Police Station or if the parties are accepted into the [H] Children’s Contact Centre provided the Centre is open and available at any of the relevant times concerned.
IT IS NOTED that publication of this judgment under the pseudonym Marino & Marino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2600 of 2007
| MS MARINO |
Applicant
And
| MR MARINO |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally immediately following the interim hearing. In the pronunciation of the formal orders, I mistakenly said Sunday as opposed to Thursday as to when the father’s time with the children would conclude. My intention, as is clear from the reasons overall, was to make interim orders in accordance with the mother’s application filed 12 November 2009.
This morning I have to deal with an application which is brought by Ms Marino. The respondent to the application is Mr Marino. The parties are the parents of two young children, [X] who was born [in] 2005, and [Y] who was born [in] 2007.
As the parties know this is not the first time I have been involved with them and so with arrangements for the care of [X] and [Y].
On 19 March 2009, following a lengthy hearing process, I made some orders in respect of the two children on a final basis. As I recall the parties had earlier agreed that they would have equal shared parental responsibility for the two children.
Accordingly, what I was required to do, in the context of the final hearing, was determine whether the two children concerned should live with their parents in an equal time arrangement, a substantial and significant time arrangement, or some other configuration.
The parties had separated when [Y] was very young and there had been a number of preliminary hearings regarding arrangements for the care of the two children. Over time it was the position that Mr Marino had spent regular periods of time with both children.
It was common ground between the parties that they had separated in very difficult circumstances and when they separated they did not have an easy relationship with one another. The nature of their relationship, particularly how it would support an equal time arrangement was the major issue at the trial.
I was assisted at the final hearing by a report from a psychologist,
Ms C, who had seen the two children concerned with each of their parents. It was her view that both children had a significant level of relationship with both of their parents, and it was Ms C's view that it was likely to be in [X] and [Y]'s best interests if their relationship with each of their parents could be facilitated and encouraged. In broad terms, Ms C was in favour of the children spending relatively equal periods of time with each of their parents.
As I say, when the proceedings began in May of 2007, when [Y] was only a few months old, the parties had a very poor relationship with one another. Over the course of time both parties deposed that their relationship had got easier and that they had begun to communicate more easily. In addition, during the final hearing, as I recall,
Ms Marino conceded, I think, that at some stage in the future it was inevitable that [X] and [Y] would be parented in an equal time arrangement.
It was inevitable she conceded because this was what Mr Marino would push for and would want, and I think it was her view that the children's relationship with their father was significant enough that this would also come about. However, she thought it was premature for that arrangement to come into place in March of 2009 and she urged caution. Ms C and Mr Marino were of the view that it was the right time.
That was the background, in brief, to the orders which I made in March of 2009, and of course those reasons are expanded upon, in some detail, in the judgment, which was published at the time.
The mother has commenced proceedings to revisit the orders. She did so in November of 2009. Her application was given a first return date on 25 February 2010. It is her case that the father has proved himself unreliable in respect of the orders that were made and has not kept to the strict routine of those orders. It is her case that he prefers to have an ad hoc arrangement which suits him and he very often changes arrangements at the last moment.
In the past she has had concerns that he has used illicit drugs. Those concerns have resurfaced and she believes that from time to time
Mr Marino has presented at handovers of the children affected by drugs. Apart from her suspicions in this regard she can provide no independent evidence in respect of this issue.
Of more significance, so far as her case is concerned, is that on 11 May 2009 she alleges that Mr Marino assaulted her outside [X]'s kindergarten. She made a complaint to the police and Mr Marino has been charged. Mr Marino, as he is entitled to do, has indicated that he wishes to contest the charge, which will be dealt with by the magistrate at some time in the next few weeks.
Of significance in terms of these proceedings is the fact that both children were present when this assault occurred. The mother alleges that the father tried to pull [Y] from her arms saying, "I can see my boys any time I like."
Later she says that the father swung his fist at her and hit her in the ribs, while she had both children in her arms. It is also the mother's case that the father has been verbally abusive towards her, in the presence of both children, at handover. It is also her case, I think, that both parties say the other has sent him or her abusive text messages.
Essentially, it is the mother's position that the parties' relationship will not sustain the orders that were put in place in March of 2009 and they are likely to have a detrimental impact upon both [X] and [Y] because of the parties’ poor and mistrustful relationship. She asserts that the father is the disrupting influence.
The father for his part wishes the orders to be maintained. It is his case that the charge of assault against him will be vigorously contested and no doubt it is his position cannot be made out. He refutes any suggestion that he has been an unreliable parent. He says that the parties, to the contrary, have been able to change arrangements for the care of the two children through a process of consultation.
He concedes that there have been difficulties in the parties' relationship from time to time, but he does not think that these are insurmountable difficulties. As I say, it was his position at trial that the parties were getting on better and better as time progressed. He refutes any suggestion that the children are not travelling well emotionally. He is concerned about any proposal that his time with the children be reduced.
The mother's position is that the children need to live more with one parent than the other. She asserts that it is she who is the parent who has been more significantly involved with the caring of the two children in the sense that she is the children's primary carer. It is her case that when the children are unhappy or sad or unwell it is she that the boys seek out. Accordingly, it is her case that she is the children's main source of emotional support and sustenance.
It is also her case that, because of the incident of assault in May of 2009, the children need to be exchanged between the parties at a secure location where both can have ready recourse to people in authority if there is any incident between them. In this regard she proposes initially the [P] Police Station and if and when it is available the children's contact centre at [H].
In her application the mother proposes that the children should spend from 8 o'clock Monday to 5 pm Thursday in alternate weeks with their father. During this time [X] will attend kindergarten regularly and [Y] has a short half day on Wednesday.
It is the mother's case, I think, that this will enable the children to maintain their strong relationship with their father, but given the parties' poor relationship with one another it would be unwise to think of maintaining the current arrangements, so this is her compromise proposal.
The father's position is that the orders which see the children spend periods of weekend and weekday time with him over a period of a fortnight, which were put into place in March, should continue.
The matter came before me on 25 February. I referred the parties to
Ms D, a family consultant. Ms D has provided a brief report. Necessarily, Ms D's opinion is untested and it is also highly provisional. I accept that it cannot be regarded as being as comprehensive as Ms C's family assessment which took place over a much longer period of time. Ms D interviewed each of the parties separately and then saw them together.
Ms D's impression of the parties is that they had a range of communication and abuse issues. Ms D summarised each of the parties' positions and from that Ms D formed the view that the communication between them was dominated by ongoing abusive interchanges, deep frustration, unresolved issues from their past marriage, and a lack of ability to listen. Both parties were assessed to have an unrealistic and possibly inappropriate expectation of the other.
So, in brief, after spending an hour or so with each of the parties, Ms D was of the view that their relationship was a dysfunctional one. Given that the parties are back in court a fairly short period after the final hearing, and given that there is an assault charge against the father at the mother's instigation, it does not seem to me to be an unrealistic assessment which Ms D has made.
In addition, it is my own view that the parties' relationship, from what I know of it, is one which has had its difficulties from time to time. I was hopeful in March that it was getting better. There is no evidence available to me at this juncture to show that that is the case. In fact, it would seem to have got worse rather than better.
The parties were, until fairly recently, in conflict about which school [X] should attend. This dispute has been resolved recently, but an inability of parents to reach agreement about such an issue, I think, is very often a pointer to the parents concerned having a very poor relationship with one another.
In her short report Ms D noted the following matters:
Both parents indicated that they understand that the mother is the primary attachment figure for the children in the sense that if the boys are unwell it is their mother that they want. The parents are not able to communicate in any way and it appeared from what both parents said that the children are already showing some signs of developmental impact which result from being deeply affected by ongoing and immature parental conflict. Worryingly the parents do not appear to be able in any way to quarantine the children from their various adult issues.
I pause to point out that Mr Marino does not accept that either [Y] or [X] are showing any signs of emotional or psychological discomfort. The mother's view is that they are, although I do not think she has spelt out these difficulties in any great detail.
Given what she had seen of the parties, Ms D was concerned about the current care arrangement. She noted that ongoing parental conflict may pose a developmental threat to children, particularly children of the ages of [X] and [Y]. With that in mind, she recommended that an urgent family assessment report be prepared.
It is the case that a number of experts in child development have written papers which indicate that exposure to family violence and conflict is extremely detrimental for young children. It affects their sense of security, it affects their sense of emotional attachment to parents, and it also has possible neurophysiological consequences.
Children become stressed by being exposed to violence and conflict. It causes hormonal responses in their brains which may in turn affect their physiological development.
No doubt it was issues of this kind which caused Ms D to indicate her concerns about the possible threats to these children's developmental trajectory. So I am concerned about the matter of the assault in May of 2009. These concerns are reinforced by the provisions of the Family Law Act which deal with children.
The provisions of the Family Law Act are built on twin pillars. On the one hand, I must consider the benefits of the children concerned having a meaningful level of relationship with not one but both of their parents. On the other hand I must consider how the children can be best protected from being exposed to ongoing family violence.
On the evidence before me, which I concede is necessarily provisional and untested, I accept that there are reasonable grounds on which I can form a belief that both children have been exposed to some ongoing form of family violence.
At this interim stage I have reached the view that it would be unwarranted, and not in the best interests of the children, for the presumption of equal shared parental responsibility to be applied.
Notwithstanding that, I still have to consider all the other relevant considerations in the Family Law Act, particularly as set out in section 60CC.
Clearly the reality of both children's lives is that they know their father well, they love him, and they have a significant level of relationship with him. How could it be otherwise given that Mr Marino has regularly provided care for both children from a very early stage.
The provisions of section 65DAA are also relevant. I have to assess the viability of the parties' relationship to sustain the children living either in an equal care arrangement or spending substantial and significant time with their parents.
The relevant considerations are outlined in section 65DAA(5). Although, the parties live very close to one another, at this juncture, I have grave concerns about the parties' capacity to implement the orders which I put into place in March of 2009. The parties are soon back in court reiterating the allegations they made against each other in the past. This indicates a compromised capacity to implement a shared care regime.
I have evidence of their facility to communicate with one another which is characterised by mutually offensive text messages. I also have indications that the two children are being adversely affected by the parties' poor relationship with one another. These are all issues picked up by section 65DAA.
I have to give significant weight to the fact that there are significant issues of family violence in this case, but I also have to balance the significance of the children's relationship with their father. I do not think it is likely to be in the children's best interests for the orders that were made on 19 March to be continued in the short to medium term. I also think I need to consider a regime where the mother can feel safe in her future interactions with Mr Marino.
Although it is tempting to consider an open and public place, such as a fast food restaurant, where there are lots of members of the public available and where there are video cameras and so on and so forth, as a venue to exchange the children, the fact that there is a police charge involving Mr Marino I think is a factor which militates against such a place. I am always concerned about using a police station to exchange young children between parents.
I am concerned about police stations for the following reasons: children associate police officers with people who are in trouble with the law, who are bad, who are naughty. I do not think that is usually a good association for a child to have in connection with one or other of his parents. But it seems to me that the parties' relationship is one which is manifested by some extreme level of volatility and at this stage I think a police station is the most preferable option, until a contact centre is available.
I have also, after some consideration, come to the conclusion that
Ms Marino's option in the short term, pending the preparation of some more expert report as recommend by Ms D, will provide both protection for the children from the worst aspects of the parties' relationship, but will also ensure that the children continue to have a sufficiently meaningful level of relationship with their father.
I have also reached the view that these issues need to be re‑examined in detail sooner rather than later and I ought to fix the matter for final hearing. Accordingly, I will order a family report be prepared in conjunction with fixing the matter for final hearing.
For the reasons provided, I will make orders in line with those sought by the mother which is that the children should live with the father from Monday to Thursday each alternate week with handover to be at the [P] Police Station pending the acceptance of the parties at the [H] Children’s Contact Centre.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 5 March 2010
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