Marsden and Marsden (No 2)

[2010] FamCA 874

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN (NO. 2) [2010] FamCA 874

FAMILY LAW – CHILDREN – With whom a child spends time – Therapeutic counselling – Attend course

Family Law Act 1975 (Cth)

APPLICANT: Ms Marsden

RESPONDENT: Mr Marsden

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring Solicitors

FILE NUMBER: SYC 6980 of 2009

DATE DELIVERED: 16 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 16 September 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 Solicitors

Orders

1. Orders are made in terms of paragraphs 2, 3, 4 and 5 of the document titled “Short Minutes of Order Proposed by the Independent Children's Lawyer” marked Exhibit A as set out hereunder:

   “2.That the orders (1)(b) and (d) of Exhibit A to the orders made 13 July 2010 be discharged (alternate Wednesday overnight night) and in substitution the children spend time with the Father each alternate Thursday following a contact weekend with the Father to collect/return the children to/from school or day care.

   3.That the parties do all acts and things and sign all documents necessary as to cause the boys to receive therapeutic counselling through [O] Primary School and will abide any reasonable recommendations by the school counsellor in this regard.

   4.By way of machinery orders the parties will exchange the children for all holiday time in the play area at […] McDonalds.

   5.That the parties forthwith attend such courses for communication counselling as recommended by the Independent Children's Lawyer and comply with the requirements of the nominated program and the recommendations of the program co-ordinator and the parties to meet the costs of such course or courses in accordance with the Centre’s protocol.”

2. In place of the Note in paragraph 3 the Court ordered “that without leave of the Court no subpoena to O Primary School in relation to the therapeutic counselling in relation to the children M and A is to issue except with the prior written consent of all parties to the proceedings, other than a subpoena issued at the application of the Independent Children's Lawyer.

3. That until further order each of the parties is restrained from attending at any training or sporting event involving the children or any of them during the time the children are to spend time with the other parent pursuant to the existing orders.

4. That the parties do all things necessary and sign all documents to make application for supervision of the father’s time with the children through the E Contact Centre or such other Contact Centre as is agreed by all of them and that they meet the requirements of the Contact Centre for the purposes of that application.

IT IS NOTED

1. It is not the Court’s intention to order that the father’s time be supervised at this stage.

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 interim parenting proceedings involving M, A and V, who are eight, six and three years of age respectively.  Their mother and father are 41 and 33 years of age. They started living together in 2000, were married in December of the next year, and separated in November of last year.  The proceedings came before Altobelli FM in December 2009 and he made interim orders for the mother to have sole parental responsibility for the children; the children to live with the mother and for them to spend time with the father for a period of four weeks, supervised on a Saturday by their paternal aunt. After that four weeks, for alternate weekends, 9 am Saturday to 5 pm Sunday, unsupervised, and alternate Wednesdays overnight.

2. The matter was then adjourned.  Family Consultant Ms N saw the parties in January, and then on 22 January 2010, perhaps, Altobelli FM, although I’m not sure, made orders for the father to spend time with the children on alternate weekends, Friday to Sunday, and each Wednesday afternoon and adjourned the matter.  The matter came before Sexton FM on 4 March.  The father sought an adjournment on that occasion. Her Honour dealt with the matter and she reserved judgment, somewhat unusually. On about 22 March 2010 she delivered a very thorough judgment. Her Honour dealt with the presenting evidence and the competing versions of events and what objective evidence there was. Ultimately, she put in place orders providing for, the boys to spend four nights and five days a fortnight with the father, and otherwise, with the mother and for V to spend less time with him.

3. There was an appeal against her Honour’s decision and I gather the appeal was abandoned or withdrawn.  The matter was transferred to the Family Court.  It has been expedited. The matter came before me on 13 July 2010 and I made some minor changes providing for handover at a contact centre, in some instances.  Dr W has been appointed a single expert and he will see the parties in December.  The matter has come back before the court on the mother’s application.  The competing applications before me involve the mother seeking a suspension of the father’s time as ordered in March and July and, unless there is another order or agreement following Dr W’s report, then she seeks supervised time through a contact centre. The mother seeks restraints on the father’s communication with the children.

4. The father supports some orders that were sought on behalf of the independent children’s lawyer on behalf of the children. The children’s lawyer supports an order whereby the parties would not attend upon extra curricular events for the children during the time they are with the other parent; a variation of the midweek time to a Thursday to avoid the parties coming together;  an order for the boys to receive therapeutic counselling that has been offered through the good offices of their school – the O Public School;  that holiday exchanges be at a McDonald’s restaurant; that the parties attend such communication counselling courses as are recommended by the independent child lawyer and that they meet the requirements and the costs of those programs.

5. I am to make orders in the best interests of children.  A decision has already been made on an interim basis and that decision has not been challenged.  The presenting problems, on one view, are problems that were foreshadowed by Federal Magistrate Sexton. They involve the children being exposed to conflict between the parents and involve what the mother says is the father seeking or having the effect of interfering with her relationship with the children. The father makes some similar complaints.  The legislation identifies the criteria or the indicia that one would look to in relation to what is in the best interests of children and they are set out in section 60CC. Those criteria have already been addressed by two federal magistrates and by me on 13 July 2010. I will try and deal with this matter in a relatively summary fashion.

6. Section 60CC sets out primary and additional considerations.  The primary considerations, as Mr Eggleston said on behalf of the children, are the ones that are often in focus in these sorts of proceedings and they’re in focus here.  And they are:

   The benefit to a child of having a meaningful relationship with both parents;

7. And secondly:

   The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

8. The problems that the mother complains about are that on many occasions the father has reported her care of the children to the police, sometimes on multiple occasions in one week. She complains that in his presence or under his influence, the children are defiant in respect of her directions that they get into a car, leave a venue, and even on one recent occasion, move from the foyer outside her apartment into the apartment itself. She says that this is completely inconsistent with their presentation away from the father’s influence.  She talks about the period of a couple of weeks leading up to 13 July when peace broke out and that there were no such issues. She notes that the children did not see the father over that time. She talks about having a loving relationship with the children and about the children showing remorse for their presentation on those occasions, after the event.  She talks about them fighting to have the privilege of sleeping next to her at night. She links the occasions when the children are defiant, particularly the boys, to the father’s influence.

9. Federal Magistrate Sexton traced through some matters from various records that lent support to the mother’s concerns. The Federal Magistrate wasn’t in a position to make a finding of fact about disputed issues of fact; it was quite proper for her to make findings within the confines of those interim proceedings in relation to records she saw. And her judgment records that the notes of H Hospital reveal that the father conceded drug use by him to somebody there;  there was a police report of 7 November 2009 in relation to drug use by him; an acknowledgement to healthcare professionals that he was aggressive and domineering to the mother; a police report to the effect that he was aggressive to the police; the records of the Department of Veterans’ Affairs from 2010 have the father admitting himself to hospital by reason of anxiety and nausea in 16 September 2008. He reported his main problem being his anger, and talked about patterns of control and verbal abuse, depression and stress due to the fear that he would lose access to his children.

   He saw his condition in the form of overly controlling behaviour and verbal abuse –

10. said her Honour.  There were some records from a Ms D:

    Father reported a shared commitment to addressing anger management issues, his tendency to dominate the mother through forceful and persistent argument. 

11. The Police have taken the father for assessment by the mental health team at H Hospital on two occasions. Each time the assessors were reassured and he was released without admission. In May of 2009, he was referred to a Psychiatrist, perhaps in relation to a post-traumatic stress disorder. I understand that the father saw some service overseas. On 2 June 2009, Dr K, or a name like that, recorded that the father:

    Loses his temper, has a short fuse, cries easily.

12. There is a suggestion that in November, around the time of separation, the father had consumed alcohol and drugs and ran off into the bush. There was a police helicopter search and then a threat to kill police.

13. On the other hand, her Honour referred to an obvious loving relationship between the children and particularly the boys and the father. As a result her Honour put in place the orders that I’ve referred to.

14. As to her Honour’s conclusions:

    There are a number of issues of concern in this case about which the court can only make limited findings at this point.  They include the father’s current mental health status, his acknowledged episodes of aggressive conduct and his demonstrated poor insight into the children’s emotional needs.  The majority of the findings made are based substantially on the content of documents tendered in evidence and on the mother’s evidence about telephone calls between the children and the father, and to some extent the father’s, the content of which was largely unchallenged –

15. and there was a raft of evidence about what you might call an intemperate course of frequent telephone communication.  Her Honour goes on:

    There’s no independent expert evidence before the court as to the nature of the children’s relationship with each party and with significant others.  There’s no independent evidence of the children’s perceptions about their current situation, but the mother and grandmother reach depose to the boys’ changed behavior.  While the evidence raises concerns about the father’s ability to support the children emotionally, I must balance this factor against the boys’ need to spend time with the father.  I’m not satisfied [M] and [A] should have their time with him reduced as sought by the mother. 

    Only very recently, in November 2009, the boys spent time with their father everyday of the week.  On the evidence of both parties, the boys love their father, miss him being part of their day-to-day lives and want and need time with him.  On the other hand, neither am I persuaded the children’s time with their father should be increased, as he and the independent children’s lawyer propose. While he’s receiving no professional support for his symptoms of depression and anxiety reported by medical professionals only a short time a go, and while he’s receiving no professional guidance as to how to support his children emotionally through this difficult and post-separation period.  I have made orders for some holiday time, but not to the extent sought.

16. Her Honour noted that she was more cautious about the time V would spend away from the mother:

    I agree with the independent children lawyer’s –

17. her Honour goes on later

    submission that face-to-face handover should be limited to the extent possible, given the high level of conflict between the parties and the father and other members of the mother’s extended family.  I agree with the independent children lawyer’s submission that telephone calls are problematic and should be suspended or significantly restricted. 

18. And as I say, the matter came back before me on July and a similar application to the one I’m dealing with today was made. On that occasion I made the orders I refer to.  The matter has been assigned to me as a docket judge and I saw the parties for the first date of less adversarial trial on 31 August 2010. I have today been taken to a couple of things that they said on that occasion.  Each of the parties professed encouragement for a loving relationship between the children and the other parent.  The father said, among other things:

    All I want is an outcome where the children spend good quality time with me, they spend good quality time with [Ms Marsden] –

19. that’s the mother –

    and they are in an environment which is as stable as possible.  I believe they need to have a good relationship with myself, they need to have a good relationship with [the mother], and we need to encourage and promote that relationship. 

20. “I know [the mother] loves them,” he went on later:

    I don’t think she’s a bad person.  I think she has moments where she gets a bit down and things go a bit crazy but at the end of the day we are both their parents.  They love me and they love her and they shouldn’t have to decide between which parents they want to stay with.

21. The mother said, among other things:

    I would like to give him the children more.  It just – there needs to be an end to all this drama.  The police were called to my house three times over the weekend over false allegations.  The children are constantly, you know, being surrounded by police, and they’re scared.  You know, this happens all the time.  It hasn’t happened in awhile apart from the weekend but it’s happened regularly over the past.  I’ve never told him he can come to a football training session because there’s always conflict.  The only time he asked me if he could attend, [M’s] grand final, and I agreed because I don’t think he should be left out with major things like that. 

    If there isn’t an issue with the children coming back and forth, it’s because things are going well between us and I’m agreeing to a lot of what he’s saying to me.  I think as soon as I step up to it and he doesn’t like something, that’s when the children don’t come home to me.  The phone calls have been extremely disruptive;  they do not work.  There’s a lot of affidavit material on them.  I have and I did allow [V] to spend three days with over the last weekend because it was a birthday and he asked me and I’ve got to say, she came back pretty happy.  I didn’t see any problems with her at all.

22. I asked whether that was the most recent weekend.  She said:

    Yes.  He asked me to, if he could celebrate [V’s] birthday with his family, and I said yes, and yes, she seemed fine when she came back.  Sir, I think my point is when I’m giving my former husband more, the children do come back happy, but when something goes wrong and I say no to something, you know, “I don’t want you just turning up here,” that’s when the children don’t come home.

23. We are taught at law school that what we do is impossible. That you cannot have specific performance of a personal contract. That means, you can’t require two people to closely cooperate on a day-to-day basis. Such an arrangement is not enforceable and yet that is what we try and do in family law all the time.  We have two people whose relationship has broken down, we try and regulate their interaction on a regular basis. The difficulties and the impracticability of that are demonstrated amply in this case. The father says the mother said something consistent with her intending to kill the children. The father’s solicitor asked for an undertaking, not that she not kill the children but something similar, that she not assault, and so on, the children. It is trite to say that if somebody was selfish and damaged enough to want to kill their children, then breaking an undertaking would probably not be a problem for them. In a way you can understand a lawyer thinking that such an undertaking would close off a risk. I feel similar temptations in this case. You could construct a web of injunctions which would address the various things that the parties have reported.  You could stop the parties being within a kilometre of each other.  You could require every interaction to be supervised.  You could require them to only to communicate in writing in a form that could be recorded so that we had a record of every communication. If there was evidence about any other communication, we could slap the offending party in gaol.

24. In a case like this where the parties are committing financial harakiri in the course of what are still interim proceedings in relation to three lovely young children, one is tempted to resort to those lengths. The fact is, these children’s future education possibilities, their capacity to have holidays, according to the mother even the sort of lifestyle activities that she can provide for them, are being circumscribed because the parties are spending tens of thousands of dollars on these proceedings. 

25. As I said on 13 July 2010, I need to be cautious about interfering with the integrity of the orders the Federal Magistrate made so carefully on 22 March 2010. Her Honour weighed up an obviously, important and loving relationship between the children, particularly the boys, and their father and the impact that interfering with that would have and what is a concerning background history. Her Honour was satisfied enough about that on the earlier occasion, particularly in relation to the father, to support a restriction on the father’s time.  There is something with respect, in what Ms Ede says on behalf of the mother, “We gave it a shot on 13 July 2010. We tried to put in place measures that were protective and restrictive and that hasn’t worked and the parties are back here; and there have been repeated reports to the police and there is evidence that the children have been affected, and it’s likely that the children have been affected.” 

26. What we know of the research is that children are damaged by conflict.  Each of the party says the children have been exposed to conflict. They don’t agree about any of the details but just assuming that one of them is telling the truth, we know the parties have exposed the children to conflict. We know that the younger the children are, the more damage is likely caused to them by conflict.  M will be better off, A will be not so well off, and V will be seriously damaged. That is because the younger a child is, the less capacity he or she has for rationalising, so awful a thing as, the two people they love the most, being in this sort of situation.

1. On the plus side, we have a Family Consultant observing a nice, easy, loving relationship between the parties and the children.  We have a report from the boys’ school to say that they’re achieving at and above their cohort. Of course that does not mean everything is well. It is counterintuitive that everything could be well. It might be, as somebody suggested, that they are robust children. I think Mr Eggleston might have said that. I t might be of course that they have had to deal with this for a while. In their little knapsacks as they go off to school each day, the boys take some responsibility for their parents’ poor relationship and it might be that they have managed to cope with it.

2. I don’t say these things just to make the parents feel guilty, to add to their burden but something has to change. The parents have 15 more years of cooperative parenting to go. They face childhood illnesses, boyfriends and girlfriends, Higher School Certificates; and engagements. They have bigger fish to fry. The simple tasks of causing the children to get from A and B is defeating them at the moment. 

3. The parties are seeing Doctor W at the end of the year. That is the strategy. The strategy of family law, to deal with the problem of the impossibility of it all is that the community puts barriers in the way of access to courts. There are compulsory assistance mechanisms – the Family Relationship Centres; there is the good sense and professionalism of the parties’ lawyers; there is the mechanism of having a lawyer appointed for the children, someone who has no axe to grind for either party, just focusing on the best interests of the children; there is a court funded expert psychologist or social worker to assist; there is scope for the parties and the court to get advice from a forensic psychiatrist. Those strategies have served us well. The issue for today is to get the children safely from this point to the point where Dr W can give the parties and the Court some advice.

4. As I said to Mr Levy, I am not permitted, to make orders that aren’t in the best interests of a child just to make it easier for Dr W to make an assessment about something. I am sure that isn’t what Mr Levy was seeking to convey.

5. I come back to this: we have evidence of conflict, similar evidence to the sort of evidence that was before the Federal Magistrate in March of this year, the circumstances have not changed significantly. There’s no doubt that the children have a loving relationship with their father. There is evidence that gives some comfort about the boys coping at school, away from the family, away from their parents. They have not been brought to urgent attention by a compellable notifier. It seems to me that the overall strategy designed by the learned Federal Magistrate, and the strategy continued in July is the strategy we should persist with.

6. The mother has a difficult case to run. It is said on her behalf that her parenting may be compromised because of these circumstances, because of the pressure she’s under.  To some extent, the orders that are proposed on behalf of the children will address that and try and remove more opportunities for the problems to occur.

7. I’m going to ask Mr Eggleston whether it might not be an idea for the parties, on a pessimistic view and as a back up plan, to make the application to the E contact centre. In that way, if as the past suggests, today’s orders fail, then the family is not delayed in having access to a supervised arrangement if that is needed.  And certainly, of course, I hardly need say this, if there are presenting problems, the parties can bring the matter back to court.

8. The strategy that is proposed changes the mid-week occasion. I’m told on behalf of the father that that might threaten his paid employment. It is suggested in response that the child care arrangements could be changed, and in a very proper spirit, it is said on behalf of the mother that could probably be done but only next year. Well, I think we make the change; if the father isn’t able to facilitate the new day mid week, for whatever reason, those occasions should give way to the greater good. It is in the children’s best interests that the father have paid employment. Given the evidence suggesting that the children are affected by what is happening, it is not an option to do nothing. Something has to give, and as I say, there are only so many options available to the court.

9. There is an issue about the effect on the therapeutic counselling through the school, being subject to subpoenas. I understand that there is an agreed position that subpoenas without leave of the court or the written agreement of all of the parties would only issue to the school counsellor at the application of the independent children’s lawyer.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 16 September 2010.

Associate: 

Date:  30 September 2010