METTRICK & METTRICK

[2013] FamCA 1076

FAMILY COURT OF AUSTRALIA

METTRICK & METTRICK [2013] FamCA 1076

FAMILY LAW – CHILDREN – Family consultant to prepare updated family report

APPLICANT: Mr Mettrick

RESPONDENT: Ms Mettrick

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms S Sheed

FILE NUMBER: MLC 1201 of 2007

DATE DELIVERED: 12 December 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr P Testart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SMR Legal

Orders

IT IS ORDERED THAT:

1.This matter be set down for final hearing before me on 17 June 2014 at 10.00 am estimated to take 5 to 10 days and the applicant pay the setting down and hearing fees as required.

2.This matter be listed for mention before me on 8 May 2013 at 9.00 am for the purpose of directions for trial.

3.Pursuant to section 62G(2) of the Family Law Act 1975 an updated family report be prepared.  For that purpose the parties and children B born … 1999, C born … 2001 and D born … 2005 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced not before 1 April 2014 and be released by not later than 1 May 2014 AND IT IS NOTED THAT an earlier parenting and children’s issues assessment has been prepared by Ms L.

4.The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)     whether the father’s proposal for shared care of the children is consistent with the best interests of the children;

e)      the impact (if any) on the children of the mother’s anxiety insofar as it is triggered by the father’s behaviour and what parenting arrangement would best assist the boys cope with the high conflict between the parents;

f)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

g)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

5.For the avoidance of doubt the family consultant be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)     any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him/her by the Independent Children’s Lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and

d)     any documents or things referred to in this Order.

6.During the forthcoming 2013/2014 long summer school vacation the father spend time with the children B born … 1999, C born … 2001 and D born … 2005 as follows:-

a)      From 5.00 pm on 20 December 2013 to 5.00 pm on 24 December 2013;

b)     From 12.00 noon on 8 January 2014 to 12.00 noon on 12 January 2014;

c)      From 12.00 noon on 22 January 2014 to 12.00 noon on 26 January 2014; and

d)     For such further and other times as may be agreed between the parties in consultation with and through the Independent Children’s Lawyer and, in the event that the Independent Children’s Lawyer is not available, then it will not be possible for the parties to reach an agreement.

7.The father communicate with the children by Skype connection or, if Skype connection is not available, by telephone between 2.00 pm and 2.20 pm on 25 December 2013.

8.Until further order, in the event that the O Primary School has exclusive occupation of any venue or place for the purpose of a school event, the father be restrained from approaching within 100 metres of that school event and the venue.

9.For the avoidance of doubt, paragraph 7 of the Order made on 17 February 2012 continues in full force and effect so that changeover for any time spent between the father and the children, which does not occur at school, occur outside the designated police station.

10.During the first school term holidays in 2014 the children spend 7 nights with the father from 5.00 pm on 4 April 2014 until 5.00 pm on 11 April 2014.

11.The alternate weekend times to which the father and children are entitled pursuant to paragraph 5.5 of the Order made on 18 September 2012 be and is hereby suspended:-

a)      from 20 December 2013 until 28 January 2014 and recommence on 31 January 2014; and

b)     during the first school term holidays in 2014 and recommence on 25 April 2014 at 12.00 noon.

IT IS DIRECTED:

12.That the Independent Children’s Lawyer serve a sealed copy of this Order on the Proper Officer of the schools at which the children (or any of them) are enrolled as students drawing the proper officer’s attention to paragraph 8 of this Order and the below notation.

IT IS FURTHER ORDERED THAT:

13.Pursuant to Sections 65DA(2) and 62B the particulars and 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED BY THE COURT that the mother has sole parental responsibility for all of the children and absent her consent and prior permission the father is not permitted to attend parent-teacher interviews for any of the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mettrick & Mettrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1201 of 2007

Mr Mettrick

Applicant

And

Ms Mettrick

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as a mention today essentially to work out what, if any, orders ought to be made for the father to spend time with the children over the forthcoming long summer school vacation, and what care arrangements should apply into next year and pending a final hearing, if there, indeed, is to be a final hearing next year. 

2. The children are B, who is 14 and a half years old, C, who is 12 years old, and D, who is 8 years old.  C and D go to a primary school, and C is completing Year 6 this year. 

3. It is a case with a very significant history in this court, having been before me for approximately 10 days in 2010, after which orders were sought and made by consent, which provided that the mother would have sole parental responsibility, and the father would have little, if any, time with the children, with some possibility of that being increased into the future.  It was a case in which the evidence concentrated on emotional and psychological abuse allegedly perpetrated by the father against the mother and the children, although ultimately no findings were made or reasons delivered because the matter was adjusted in the terms I have described. 

4. This was and remains a case which is subject to division 12A of Part VII of the Family Law Act 1975 (Cth), which gives the court extensive powers in relation to evidence. I have not heard submissions on the point, but I certainly would not exclude that in this case I may have regard to the evidence from the proceedings in 2010. As to it coming on for final hearing, I will deal with that matter shortly.

5. The Independent Children’s Lawyer, Ms Sheed, has been in the matter for some time.  She has attended to it diligently, it would appear, and given the matter considerable consideration. 

6. Her preliminary view, expressed in mid-morning today, and through Ms Testart of counsel, is that equal shared parental responsibility, as sought by the father, “seems to be totally out of the question” on a final disposition of the matter.  In particular, so fraught is the relationship between the parents that any attempt at communication under the auspices of or as required by equal shared parental responsibility will see one party designated as an aggressor and the other as a victim.  Either way, both will be diminished.  It will have a rebound effect on the children, and not be in their best interests. 

7. Mr Testart went on to inform the court that whilst the father seeks a much more intimate involvement in the children’s life and seeks a shared care arrangement of week about, or it would seem, now, perhaps, 6 out of every 14 days, the preliminary view of the Independent Children’s Lawyer was that shared care of these children “is not viable”. 

8. The father instituted these proceedings on 11 September 2012.  In that application the father sought equal shared parental responsibility and extensive time with the children.  That application was amended or replaced this year, when on 15 November he filed an Application in a Case seeking, essentially, shared care of the children.  In September last year there was quite extensive evidence from the family consultant, Ms L, and evidence of one or both of the parties, but certainly the father, which led to some adjustments being made to the orders introducing overnight time between the father and the children.  Pursuant to those orders, the children have been spending time with the father since the commencement of the 2013 academic year from after school on Friday until the commencement of school on Monday. 

9. The oldest child, B, has concluded school for this academic year, and C and D finish school on 20 December 2013.  The father seeks orders so that he could attend a school event on 17 December, that he have the children from 20 December to 24 December, that he have a Skype or telephone conversation with them on 25 December, that the children spend time with him for a week commencing 3 January, and then again from 17 to 21 January 2014.  The Independent Children’s Lawyer seeks orders which would provide the mother with time at the beginning of the long summer school vacation which is not interrupted by the children spending time with their father. 

10. The circumstances of this case are such that I must accept at the moment that actions by the father in relation to the children lead to a heightened state of anxiety in the mother.  I am not able to say whether that is reasonable or avoidable, but the fact is that she appears, and has always appeared, to be extraordinarily anxious.  I can safely conclude that that impacts upon her capacity to parent the boys in as much as the boys are aware of it.  I am also satisfied of that from the evidence given by Ms L, family consultant, in September 2012. 

11. The father says that he is also deeply affected, and that he is haunted by the fact that his children do not have a normal relationship with him, or have, in his words, a “compromised relationship”.  I also take that into account. 

12. It seems to me appropriate, having regard to the need to balance the emotional wellbeing of the children, the need to protect them from physical or psychological harm, and considering the benefits of them having an ongoing relationship with their father, that there be a period of the long summer school vacation in which they don’t have time with their father so that the mother may consider that to be an uninterrupted period of time with her.  Thereafter, the children should have time with the father, which is commensurate with the benefits to them of having a relationship with him and spending time with him.  The dates that I proposed to the Independent Children’s Lawyer, after hearing his submissions and which were ultimately adopted by the mother, were from 20 December until 24 December 2014, from 8 January until 12 January and from 22 January until 26 January.  That gives the mother a break of approximately two weeks, commencing on Christmas day, and it sees the children back in her home, where they primarily live, at least one day before they start school on 28 January. 

13. Whilst the father sought more extensive and different dates, he made clear that he could make himself available for those dates and times.  The father sought time on 17 December 2013 to attend an evening school event at the primary school attended by C and D.  That’s an event that goes from approximately 5.15 pm to 7.30 pm.  The father submitted that it would be a very constructive thing for him to be able to attend.  He described C as being a boisterous boy who was in a class dance, and urged on me that it would be beneficial for C.  D is also performing at the concert. 

14. Previously, the mother has said that if the father attends such an event she will not attend.  That was the case approximately two weeks ago over C’s valedictory dinner.  The mother has confirmed that that remains the case now. 

15. The father concedes that if the mother did not attend the concert, that may well have an impact on C and D, but he was unable to say how.  He said that the boys have, in his view, “detached themselves” from the parents, by which I assume he means the conflict between the parents, and that they enjoy their time with each parent separately.  The father submitted “if she stays away, the children will be happy that one of their parents (i.e. him) is present”.  He did not say that, in his view, any of the children would be upset by the mother’s absence.  He did indicate that he thought that the mother staying away may ultimately be counter-productive or damaging of her relationship with the boys, and even more so if she went to the concert on the basis that the father could not attend.  The father offered to take photographs of the concert, which he would make available to the mother.

RECORDING   :   NOT TRANSCRIBED

1. It is a sad circumstance that the children can’t enjoy the company of both parents at a school event, but it is not unusual for these boys.  They haven’t been able to do so since the parties separated many years ago.  The conflict in this case is extraordinarily high. 

2. This matter is listed for a short hearing today.  I am not in a position to unpick, and nor do I have the expert evidence which would assist me to unpick, the complexity of the matter.  At the moment, the order is that the mother have sole parental responsibility for the boys.  A State order, called an intervention order, operates so that the father cannot attend the boys’ primary school. 

3. The boys are in the primary care of the mother.  In my view, all of those factors indicate that the mother should be the parent that goes to the concert and the father should be the parent that stays away.  I exclude the possibility that it is feasible for the mother and father to attend together, and I take the mother at her word, which is that if the father is to attend the concert, she will not go.  I specifically find that it is not in the best interests of the boys that the mother exclude herself from the concert in this instance.  At a final hearing, these matters may rebound seriously against one or both of the parents.  I don’t know, but at the moment, that’s my interim decision.  Therefore, the father will have no time with the boys, nor be entitled to attend this school event on 17 December.

4. A further matter has arisen during discussion.  The intervention order precludes the attendance of the father at the boys’ primary school and does so by way of the geographical restriction on his ability to attend within a certain distance of the mother or where she lives.  The father concedes that from time to time, the primary school rents or obtains the exclusive use of facilities around E Town for school events, be they concerts or sports days or the like.  The other parties seek to enjoin the father from attending school functions where the school controls the venue.  They do so orally and with leave.  I have heard the father’s submissions in relation to me granting an injunction today to the effect that where the boys’ primary school exclusively occupies premises for school purposes, he not attend there, either, that is, notwithstanding the geographical location of that venue or place to the wife or where the wife resides. 

5. He has made submissions which I expect will feature heavily at a final hearing, but which really are directed to the lifting of the original order which precludes him from going to the school in the first place.  That was an order made under State legislation.  I am satisfied that had it not been made under State legislation, it would have been sought from this court.  It has not been the case for many years that the father has been entitled to visit the school of the youngest children. 

6. I am not satisfied of any of the father’s submissions on an interim basis, such as today, although I stress that I will certainly listen to them in the context of a final hearing.  For the time being I will make an order that where the school has exclusive occupation of any venue or place for the purpose of a school event, the father not be permitted to attend that venue or place. 

7. The father sought a conversation with the children on Christmas Day so that they could discuss with him his gifts.  I will make that order.  An accommodation was reached between the parties, quite admirably, during the course of the hearing, that by Monday afternoon, the husband would notify the Independent Children’s Lawyer of the specific Christmas presents he proposes to purchase to give the boys, and that that information will be immediately passed onto the mother so as to avoid any duplication of presents.  That is on the strict condition that she not permit the boys to know the content of the list, and, of course, that the father will follow through and actually buy those gifts. 

8. The next period of time sought by the father was from 3 to 10 January 2014.  I won’t make that order because I accept the submission of the Independent Children’s Lawyer that there should be an extended period in which there is no time between the boys and the father, which will allow the mother, and through her, the boys, some respite that amounts to approximately two weeks. 

9. The father next seeks time from 17 to 21 January.  I won’t grant that time but will grant time later in the holidays of greater duration. 

10. I have had regard to the additional considerations in formulating the orders.  I accept generally that the children really enjoy the time with their father, that it is packed full of interesting activities and treats and things which the Independent Children’s Lawyer astutely described as out of the financial reach of the mother.  It’s a special time.  I’m sure that they like their father, so I have no doubt that they would be happy to spend some more time with him.  

11. My concern on an interim basis is that this time has an impact on the mother and, therefore, has an impact on the children’s primary parent and that the impact is not good.  To my mind, the times that I have prescribed strike a reasonable and responsible balance between the benefit that the children get out of seeing their father and the need they have for a settled home life with the parent who is their primary caregiver.  Interestingly, the father doesn’t want a final hearing of his application. 

1. These proceedings have now been on foot since September 2011, and I have indicated to the parties that there is no difficulty with me accommodating the matter in June or July next year.  The father says that’s too soon.  By that stage, the second set of proceedings, following a 10-day hearing, will have been on foot for nearly two years.  The father says he doesn’t want a final hearing.  He says he doesn’t need a final hearing.  He says that the children have only just had a “sniff” of a normal life with him.

2. The father says that aspires to what he calls normality, which is a safe, happy and constructive relationship for the children with both parents, with bright prospects for the future.  As inspirational as that may be, it doesn’t seem to me to be the previous experience of the boys’ relationship with their parents or the boys’ experience of their parents’ relationship with each other, but it’s clear that’s what the father aspires to in these proceedings. 

3. The mother wanted final orders today, which is totally impractical, given the nature of today’s hearing.  The Independent Children’s Lawyer acknowledges as much. 

4. In order to make final orders, I will need to provide the parties with an opportunity to adduce the evidence that they want to adduce.  I would be very much assisted by a further family report as close to the final hearing as possible.  I am of the view that not only does it accord with court practice to bring matters to a conclusion, it’s also likely to be in the best interests of these boys to have a full hearing and to produce a result which has some permanency about it so that their parents, and through them, the children, can be relieved of the tensions associated with court proceedings.

5. I will set a final hearing of the matter for the week commencing 16 June, 17 June 2014.  That will see the matter back in court on a final hearing basis prior to the second school term holiday.  There should be a family report as close to that time as possible.  There will be one summer school vacation that falls before the matter comes on for final hearing.  In that, the father seeks one week from 5.00 pm on the last day of school to 5.00 pm on the first Friday that falls in the school term holiday. 

RECORDED   :   NOT TRANSCRIBED

1. The wife and the Independent Children’s Lawyer are agreeable to the father’s proposal, so I will make orders to that effect.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 December 2013.

Associate: 

Date:  20 January 2014