Marsden and Marsden

[2010] FamCA 821

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN [2010] FamCA 821

FAMILY LAW – CHILDREN – Interim – with whom a child spends time

Family Law Act1975 (Cth)

APPLICANT: Ms Marsden

RESPONDENT: Mr Marsden

INDEPENDENT CHILDREN’S LAWYER: Mr Eggleston

FILE NUMBER: SYC 6980 of 2009

DATE DELIVERED: 13 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan

HEARING DATE: 13 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Carlisle Attorneys

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring

Orders

1. Leave is granted to the parties to inspect documents produced on subpoena by O Public School, Dr K and the NSW Police.

2. Orders are made in terms of the document titled Short Minutes of Order marked Exhibit A and attached hereto.

3. That by way of machinery order in relation to the orders of 22 March 2010, that effect be given to Order 7(c) of those orders by the mother delivering the children M born … May 20021 and A born … April 2004 to the father at the E  Contact Centre at 2:30 pm on Friday, 16 July 2010 and by the father delivering those children to school on Tuesday, 20 July 2010, and effect be given to Order 12 of those same orders by the mother delivering the child V born … August 2007 with the boys M and A at the E Contact Centre at 2:30 pm on Friday, 16 July 2010 and by the father returning the child to the mother through the E Contact Centre at midday on Saturday, 17 July 2010.

IT IS NOTED

1. In relation to the school holiday time for the July 2010 school holidays in the event that the E Contact Centre is not available that time will not occur.

IT IS FURTHER ORDERED

1. That the first occasion of the father’s school term time commence on Friday, 30 July 2010 and that otherwise the pattern fixed in the orders of 22 March 2010 will apply to subsequent school terms.

2. That until further order each of the parties be restrained from interfering in any way with the other parent’s time with the children in accordance with these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980 of 2009

MS MARSDEN

Applicant

and

MR MARSDEN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to three children, M, A and V. They are eight, six and coming up for three years of age.  Their parents, the mother and father, are 41 and 33 years of age, respectively.  They started to live together in the year 2000, were married in 2001 and separated in 2009.  At separation, the mother and children moved to live with a maternal aunt and family members.

2. There has been an interim decision in this case. Federal Magistrate Sexton made orders on 22 March 2010 and delivered a very thoughtful and detailed judgment.  Her Honour discharged any previous orders and put in place an arrangement whereby the children would live with the mother and she was to have sole parental responsibility for the children in relation to major issues.  She was to inform the father about major issues.  Each party was to have day-to-day responsibility for the children when the children were with them. The boys were to be with the father each alternate weekend from the conclusion of school Friday until 5 pm on Sunday, and each Wednesday from the conclusion of school until 6 pm.  Handover was to be in the foyer of the local Police Station. The boys were to live with the father for four nights and five days in the short school holidays and for two non-consecutive periods of seven days in the Christmas school holidays. V was to live with her father each Friday from after school until midday on Saturday, with the father to collect the child outside the school on a Friday afternoon and deliver her back to the police station at the conclusion of time. She was to be with the father on Wednesdays from after school until 6 pm. She was also to spend 2 hours on another day in each alternate week, such day to fall between the two Wednesdays when V does not spend time with the father on the weekend.

3. Her Honour dealt with an application by the mother for the father to spend two hours with the children each week, supervised at a contact centre and a suspension of telephone time. The father wanted each alternate weekend Friday through to Monday, and Wednesday afternoons until Thursday morning, with V’s time to conclude earlier than the boys’ – half school holidays and special days, with handovers at the police station.

4. Her Honour traced her obligations at law in the – as described in the decision of Goode v Goode but focusing on the best interests of the children and how one determined what that would be by reference to the primary and additional considerations in section 60CC.

Background

1. The parties had been living at H. At some point after separation the mother moved to live in O. The father subsequently came to live in the same street as the mother. I gather he lives nearby to O Public School, where the boys attend. I think there was originally an issue between the parties about that, the father wanting the boys to remain at a Y school.

2. The orders made by Federal Magistrate Sexton have not been successful and the parties have a very different view about why not. The father’s case is inconsistent. His communications directly with the mother have suggested that he thinks that there are aspects of the mother’s care of the children or the exposure that the mother gives the children to other people in her family that would warrant the children living with him.  His case, is that he wants the children to live unsupervised overnight for substantial periods with the mother.  He thinks that the children’s aversion to returning to the mother on multiple occasions has a sound foundation in the minds of the children. The husband presents as an honest broker who at all times he has made the children available to return to the mother and he has waited at the police station with them and the mother has manipulatively, deliberately and frustratingly refused to collect the children. It is common ground that there have been umpteen occasions when the children have been presented at a place and between the two parents they have not been able to cause the children or some of them to go with the mother.

3. The mother’s version of events is that the father has a personality disorder or a psychiatric condition, perhaps referable to service in the army, which has manifested itself in controlling and manipulative behaviour. She contends that he is bent on causing harm to her and bent on controlling her and manipulating her, and he does that through the children. She says that he used do that through the device of telephone calls before they were stopped by the Federal Magistrate. She says that he continues in that behaviour and that has led to the reluctance of the boys, particularly, to return to her. A reluctance that she says evaporates reasonably quickly once the children are back in her household.

4. These are interim proceedings.  I cannot make a finding of fact on issues that are just referred to in the papers.  Even in circumstances where there seems to be some support for a proposition I am not permitted to make a finding of fact unless there is independent material that excludes one version altogether or wholly supports another version. Further, this is not a case where I am at large in relation to the parenting arrangements. An interim decision has already been made.

5. These proceedings came before me on 29 June 2010 and the father was here without legal representation and he asked for an adjournment. He said that he needed legal assistance and did not want to argue the case then and there. On that basis I put in place the orders that were sought on behalf of the mother, which involved a suspension of time and restraints in relation to the father’s conduct. The matter comes back before me today. It cannot be said that there was a hearing on the merits on 29 June. Indeed, it was more akin to an undefended matter because of the stance of the father. I am not critical of him about that.

6. There is a real issue about doing mischief to the integrity of the decision so thoughtfully made by Sexton FM after a hearing on 4 March 2010. Her Honour reserved her decision and delivered judgment on 22 March 2010. 

7. The problem, as happens in most cases that come into the duty lists that have any substance to them is that the primary considerations, which are the importance of the children having a meaningful relationship with both parents and a need to protect children from harm, are in conflict in this case. As a general proposition, I think courts have tried to deal with risks. Unfortunately, in a case like this, it is not possible to exclude all the risks.

8. A reading of her Honour’s judgment reveals that her Honour was very concerned about the father’s conduct.  Her Honour felt that the mother was likely to be the primary caregiver of the children, the primary attachment figure, and took the unusual step of making a decision about parental responsibility in an interim proceeding, in circumstances where the material couldn’t be tested, and so on.  Her Honour had the assistance of some objective material in relation to the father’s psychological health. Of that material, some of it was purportedly based on information the father himself had provided. That obviously lent credibility to that material.

9. Her Honour was faced with a situation where she felt that the primary attachment figure was the mother. The mother had highlighted risks that might come from the father’s time with the children. Her Honour put in place an arrangement that involved unsupervised time with the father, including overnight time. From the mother’s point of view, the concerns that her Honour raised have been borne out and should result, in her view, in a suspension of the father’s time.

10. In relation to the other considerations: this isn’t a case about the wishes of the children.  They are young: eight, six and three. Each of the parties wants the Court to act inconsistently with the children’s wishes, to some extent.  Even if that was not the case, there is something quite wrong happening here. In those circumstances, one wouldn’t be interested in the views of an eight-year-old or a six-year-old, let alone a three-year-old, as to whether a child should be put in harm’s way or not.

11. As to the nature of the parties’ relationship with the children, her Honour must have felt that it was good enough.  Orders were put in place for time.  Each of the parties has, at various times, wanted the children to spend time with the other.  The mother has obviously had some concerns about the father, concerns that have grown through the last few months. 

12. As to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent:  The mother has been able to foster a relationship between the children and the father. There is no shadow cast on that. There is no suggestion that she has not been able to cause the children to go to the father. Indeed, it is an agreed fact that on occasions, she has provided additional time. However, there is an issue, as I have said, in relation to the father’s willingness and ability to facilitate the children’s relationships with the mother.  He has certainly been unable, on occasions, to cause the children to act in a way consistent with a close continuing relationship with the mother.  He thinks that there might be an objective reason for that, as opposed to anything he has done.

13. As to the likely effect of changes in circumstances: We have canvassed a few options today.  The parties live very close together and right near the boys’ school. To impose a contact centre on the parties would involve the parties in travelling for hand overs at the E contact centre.  That would be quite a commitment. It is not just a matter of the cost of petrol. It would be an irritation for the parties as well as an expense. Such an arrangement would eat up time and the children will come to associate the handovers with that painful exercise.

14. I understand very well why Mr Eggleston, on behalf of the children, recommends such a course but it seems to me that it would be good if we can avoid that. If other arrangements fail then there are no other choices. If the parties can’t make work, handovers primarily at the school, then the only options left would be handover at a contact centre or no time.

15. As to the practical difficulty and expense of a child spending time with a parent: there is not much of that except for, as I say, the inconvenience and costs of petrol or a train fare, if we have to go to that other arrangement. I am told the costs at the centre are modest. 

16. As to the capacity of the parents and others: that is the main issue in the proceedings. 

17. As to the parents’ capacities to provide for the needs of the children, including their emotional and intellectual needs: One or both of them doesn’t have the capacity, I would think. It might be that this is just a bad period following separation and one or both of the parties has dropped their bundle to some extent. That happens sometimes and usually, loving, capable parents pick their responsibilities up.

18. However, here the parties describe the children as quite unhappy, acting out in front of complete strangers, not being able to go with their primary caregiver in circumstances where, some time after that, they’re quite able to be reconciled to that person.  Something is wrong.

19. As to the maturity, sex, lifestyle, background of the children: the critical thing is that they are young.

20. As to the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents – well, that is the subject matter of the proceedings, as I say. They are the matters, I think, that are relevant in section 60 CC.

21. So as I indicated to the parties in the course of submissions, I think we stick out the integrity of her Honour’s decision without doing too much mischief to it.  I am asked on behalf of the father to increase his time with the children in aid of a safer handover mechanism. It is submitted that that would be consistent with the Child And Parents Issues Assessment and consistent to the extent that it reflects or reports on the children’s wishes.  The trouble is, there is no other basis for doing that. There is no basis for increasing the father’s time. It might be necessary at the margins, depending on Mr Eggleston’s ingenuity, but it seems to me that the basic framework of the existing orders should be kept. There are far more important issues here than a slight increase in the father’s time. 

22. Each of the parties makes a case which argues that it is not good for the children to be with the other parent. One of them might be right about that.  So in aid of keeping the parents apart, it seems to me that I shouldn’t do damage to the scheme that her Honour put in place.  I stand the matter in my list for the preparation of a minute of orders reflecting these reasons.

23. In the first instance, the father will pay the costs of the expert.  I don’t mind if he brings the matter back to court once the child support arrears are completely up to date but otherwise, in the first instance, he pays the costs. I will not do anything to disturb the plan about the expert, I think the sooner the better.  I’m going to make the orders as Mr Eggleston has proposed.  The document, short minutes of order, is Exhibit A.  I make orders in terms of that document. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 July 2010.

Associate: 

Date: 16 September 2010