MILLERD & MILLERD

[2013] FamCA 859

FAMILY COURT OF AUSTRALIA

MILLERD & MILLERD [2013] FamCA 859

FAMILY LAW – CHILDREN – Interim Parenting – Where the father made an application to vary interim parenting arrangements – Where the mother sought orders that the present arrangement generally continues – Where the time the father spends with the children is generally monitored by the paternal grandmother on every second occasion that the father spends time with the children, including school holiday time – Where the time the eldest child of the parties spends with the father is arranged by the eldest child dealing directly with the father – Where the mother submitted that the father’s application was not a fresh or first look at parenting issues pending a hearing and that the father had not demonstrated a change in the circumstances that would justify a reconsideration of the orders previously made – Where the court determined that, although there have been a series of short-term consent orders, there have been no consent orders expressed to carry the matter through to a final hearing – Consideration of the best interests of the child – Where the court determined that removal of the general monitoring provided by the paternal grandmother is in the children’s best interests as it otherwise acts as a fetter on their developing a good relationship with their father – Where the time younger children spend with the father is extended to end before school on Mondays – Where the time the eldest child spends with the father is to be determined by that child.

Family Law Act 1975 (Cth) ss 60CC, 65DAA

Langmeil v Grange [2013] FamCAFC 31
Marsden v Winch [2009] 42 FAM LR 1.
Rice v Asplund [1979] FLC 90-275

APPLICANT: Mr Millerd

RESPONDENT: Ms Millerd

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: SYC 2489 of 2012

DATE DELIVERED: 4 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 4 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

SOLICITOR FOR THE ICL: Ms Power

Orders

1. I hereby discharge all existing parenting orders in respect of with whom the children are to spend time.

2. I note that B born … 1997, who is presently attending a boarding school, shall otherwise live with her mother and spend time with her father in accordance with her wishes as she may arrange.

3. That C born … 1999 and D born … 2002 shall live with the father as follows:

   a)   Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday. 

   b)     For one half of each school holiday period as agreed between the parties and failing agreement for the first half of each school holiday period.

   c)     From 6pm on the Saturday preceding Father’s Day until 6 pm on Father’s Day.

   d)     On the children’s birthdays as agreed between the parties and failing agreement from after school or, 3 pm on a non school day, until 6.30pm.

   e)     Such other times as the parties may agree in writing.

4. That C and D shall live with the mother at all other times.

5. That for the purposes of changeover, where applicable, the father shall collect the children from their school and return the children to their school or otherwise collect them from the mother’s residence at the commencement of this period and the mother shall collect the children from the father’s residence at the conclusion.

6. That each of the parties are hereby restrained from:

   a)   discussing these proceedings and the documents prepared in connection with them with the children;

   b)     causing or permitting the children to see any documents prepared in connection with the proceedings; and

   c)     denigrating the other parent or any member of the parent’s household.

1. That each party shall notify the other as soon as possible in the event of any serious illness or injury suffered by the children whilst in their care.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Millerd & Millerd 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 SYDNEY

FILE NUMBER: SYC 2489 of 2012

Mr Millerd

Applicant

And

Ms Millerd

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. These are interim proceedings in which the father seeks an order that the children live with him each alternate week from after school Friday until the commencement of school the following Monday.  The father seeks that in three months time that time be extended by him returning the children at the commencement of school on Tuesday.  In addition, he seeks that the children spend half the school holidays with him and also time on special occasions.  The critical element of his proposal is that none of the time the children spend with him is to be supervised or monitored. 

3. Presently the children spend time with their father every second weekend.  For the first weekend of the month the time is from after school on Friday until 5 pm on Sunday.  That time is not supervised or monitored.  In the second weekend of the month the time is from after school Friday until the commencement of school on Monday, with the paternal grandmother to be generally present.

4. The mother seeks orders that the present arrangement continue but with the time extended in the second block of time until Tuesday morning.  For half the school holiday periods the children are to spend time with the father with a significant part, but not all of that time, generally monitored by the paternal grandmother.

Background facts

1. The mother was born in 1970 and the father in 1966.  They were married in 1993 and separated on 23 February 2012.  The father presently resides in the former matrimonial home at Suburb E.  The mother and the children live with the maternal grandmother at Suburb F.  There are three children of the marriage.

2. B was born in 1997 and is thus 16.  She is in Year 11 and is boarding at Ascham.  She sees her father outside the times referred to earlier as the present position.  She usually stays with her father on Thursday night and sometimes stays the weekend with him, even if it is not the scheduled weekend for her to spend time with him.  She does this by arranging the time directly with her father.  The mother’s counsel said that the time B spends with her father is largely consistent with what she wants to do.  This additional time she spends with her father is not monitored unless the paternal grandmother happens to be present.

3. C was born in 1999 and is 13 years old.  D was born in 2002 and is 11 years old.  Both boys attend G School.  They travel to school from Suburb F by bus.  The children are generally doing well at school.  C has recently been put on report for disruptive behaviour in class.  B’s marks for term one were below her average.  This could be explained by a close friend of hers dying in March this year after a long battle with cancer.

4. There have been a number of interim parenting orders in this matter and it will be necessary to deal with them in turn.  But before doing so, it will be necessary to provide the background for those orders.  Each of the orders provided for the children to spend time with the father, including overnight time, but there was to be general monitoring for at least significant periods of the time the children were to spend with their father.

5. The person presently providing the general monitoring is the paternal grandmother.  It is agreed by the parties that the general monitoring is not supervision and that when monitoring is taking place there will be substantial periods of time when the children are with their father but the parental grandmother is not present.

6. The mother’s evidence is that the father was abusive, including physical abuse to her during the relationship.  She alleges that he attempted to poison her, and she alleges that the father plays too roughly with the boys.  In particular, she details some specific incidents of violence.  She refers to the husband physically assaulting her with a celery stick in November 2009.

7. In 2011, she alleges that he pushed her to the ground and then, in her words, “smacked me on the ear with his hand causing a cut and a blood blister on the side of my head.”  In September 2011, she says that C came to her and described his father grabbing his shoulder very hard so that three days later there remained a bruise.

8. In December 2011, the mother says in her affidavit filed 25 June 2012 at paragraph 25 that C said to her that whilst he was helping his father take down the Christmas reindeer his father got very angry “called me over, grabbed my face with both hands really hard, lifting me off the ground by my head, yelling at me for not helping and spitting in my face.”  The mother noticed deep scratches on the left side of C’s face and the back of his neck on the right side.  C told Dr H, the single expert appointed in this matter, that he had seen two violent incidents between his parents.  C confirmed the Christmas 2011 incident described by his mother.  He said that he had been hit by his father a couple of times.

9. In speaking to Dr H, the father confirmed the two incidents described by the mother involving C.  He told Dr H that he had not realised he had bruised C’s shoulder in relation to the first incident until he saw the mother’s affidavit.  As to the second, he said it was a one-off incident and that he had lost his cool.  He told Dr H that he was ashamed of his behaviour and that it was the lowest point in his life.

10. It was against this background and these allegations that a series of consent orders were made.  On 31 May 2012 there was a consent order that the parties have equal shared parental responsibility for the children.  It was further ordered that the children spend time with the father until 19 July 2012 on specified weekends up until 27 July 2012 and thereafter each alternate weekend from Friday after school until the commencement of school the following Monday.

11. There was an order that, without admissions, the time the children spend with the father shall be generally monitored by the father’s mother, or such other person as the parties may agree to in writing, and they shall reside with the father and the children whilst the children are in the father’s care.  On 19 July 2012 further interim consent orders were made.  The order for shared parental responsibility was continued.  Orders were made for the children to spend time with the father during school terms being each alternate weekend from after school Friday until before school the following Monday morning.

12. Orders were also made in relation to school holiday periods whereby the children spent time with each of their parents.  There was an order that the applicant father’s time with the children during holiday periods to be generally monitored by the father’s mother who shall reside with the father.

13. The court also noted that the parties could approach the court for a further interim hearing date once the single expert report has been released.

14. On 19 November 2012 further interim orders were made by consent.  The earlier orders were varied so that there be a specified time, namely 17 and 18 November 2012, which the children would spend with their father unsupervised and then a period from 30 November to 3 December 2012 with the maternal grandmother to be present generally.

15. Orders were then made providing for time the children were to spend with the father in term one and then the April school holidays.  The term time was generally that there would be one weekend a month from after school Friday till 7.30 pm Sunday which was unsupervised and then the alternate fortnight from after school Friday until the commencement of school Monday, with the paternal grandmother to be generally present.

16. When those orders expired no further orders were sought until 1 August 2013.  However, the parties conducted themselves on the basis that those orders continued to apply.  On 1 August 2013, as a stop-gap measure, the orders of 19 November 2012 were continued until further order.

Issues for determination

1. The first issue is whether the court should proceed to hear and determine the application on its merits.  The mother submitted that the application was not a fresh or first look at parenting issues pending a hearing, that it was in fact an application to vary existing orders, that it was a request for a fourth set of interim orders and that the father had not demonstrated a change in the circumstances that would justify a reconsideration of the orders made on 19 November 2012.

2. The orders made of 31 May 2012 provided for the children to spend each alternate weekend, from after school Friday to before school Monday, with the father.  The time was to be generally monitored.  There was no provision for school holiday time. 

3. The orders of 19 July 2012 did provide for school holiday time.  They continued the alternate weekend time during school terms as previously ordered.  The school holiday time but not the school term time was to be generally monitored.  Leave was granted to apply for an interim hearing date when the single expert’s was received.  The orders of 19 November provided for the children to spend time up until 25 April 2013.  No further time was provided in those orders.

4. Thus, the orders that have been made from time-to-time in this matter have been limited in duration.  Order 5 made on 19 July 2012 could be read as being unlimited in duration but was part of a set of orders which referred to there being a further interim hearing after the single expert’s report was received and was accordingly subject to that caveat.  The orders of 19 November 2012 do not extend beyond April this year.

5. Thus, although there have been a series of short-term consent orders, there have been no consent orders expressed to carry the matter through to a final hearing.  There has been no interim consideration by the court.  Whilst it is clearly correct to say, as the mother submitted, that there should not be serial applications for interim orders, this is not what has happened here.  The nature of the orders does not militate against a consideration of the father’s application.

6. It is clearly the position, at least as far as final parenting orders are concerned, that the court should not lightly entertain an application to reverse an earlier parenting order.  There needs to be circumstances which require the court to consider afresh how the welfare of the children should best be served.  This is because, generally speaking, continued litigation over children is not in their best interests.  (See Rice v Asplund [1979] FLC 90-275; Langmeil v Grange [2013] FamCAFC 31 and Marsden v Winch [2009] 42 FAM LR 1).

7. The general approach to interim orders, whether in family proceedings or at general law, is that interim orders will be varied only where there is a change in circumstances such as to justify a fresh consideration of the interim orders.

8. As has been explained, however, in this matter there has been no interim hearing by the court and no consent orders of the parties desire to carry the matter through to a final hearing.  The case for denying a consideration of the father’s application on the basis that earlier orders have been made is therefore not a strong one.

9. Further, the father says that the circumstances have changed.  He says that the interim period of supervision, recommended by Dr H, has now passed.  The two boys feel that they no longer need or want supervision.  B makes her own arrangements to see her father unsupervised with the acquiescence, if not consent, of her mother. 

10. The father’s mother says that she is not in good health and finds the monitoring tiring and that she has recently broken her foot.  However, she does not assert that these problems would prevent her from continuing to act as a monitor.  Nevertheless, the position remains that she lives in Perth and thus monitoring is neither easy nor convenient.

11. If these assertions of the husband are established they would provide good reasons for reconsidering the need for monitoring.  They have considerably less force in relation to the extended time the father seeks with the children.  Taking these matters into account, it is appropriate to continue the consideration of the father’s application.

Section 60CC Factors

1. It is necessary then to deal with the matters raised by section 60CC of the Family Law Act 1975 (“the Act”).  The first of the two primary considerations raised by that is the benefit to the children of having a meaningful relationship with both parents.  All of the children clearly have a good relationship with their mother.  Their relationship with their father was extensively discussed by them with Dr H.  It is important to remember that Dr H’s report was provided on 9 August 2012, just over one year ago, and it cannot be described as recent.

2. Reference has already been made to the two assaults on C by his father as noted by Dr H.  C told Dr H that he felt he was targeted more by his father’s impatience than the other two.  He felt that he was punished more often by his father and he expressed the view that it was not fair.  His father could be impatient when he was under stress.  C had coped with this by avoiding his father and used to worry about getting into trouble from him.  Dr H said that, if he understood C correctly, he felt under this kind of pressure even more in the last few months of the relationship and said that he was quite scared of his father.  He was worried that his father might get angry.

3. In relation to the current arrangements, he thought that perhaps his paternal grandmother was there for his protection and he would like her to stay for the visits because of the extra protection her presence provided in relation to the violence that happened towards the end of the parties’ relationship.

4. D described his father as being humorous but a bit scary and he has anger flashes.  D also told Dr H that he knows his father would not hurt them.  D described the incident at Christmas involving C and confirmed it.  He remembers, towards the end of the relationship, there had been a lot of yelling but not a lot of hitting.  D was happy with the present arrangement and said that if his paternal grandmother was not there, he would be totally scared in case his father lost his temper.  B raised no particular issues or difficulties with either of her parents with Dr H. 

5. In relation to the two boys, Dr H expressed the following conclusion:

   The two boys express clear and reasonably informed views that they feel safer with their grandmother being present when they spend time with their father.  This is most acute in the case of [C], who [Mr Millerd] has admitted to having hurt twice at the end of last year, but both the boys describe him as “quite impatient” and each probably has a different way of appeasing him.  It is my view that these wishes should be given significant weight.  Even if the court does find that there is no unacceptable risk of recurrence, it is my view that the supervision should be lifted fairly gradually, perhaps over the course of a couple of school terms.

6. The father now says that generally speaking he and the children are getting on well and that he has re-established a good relationship with C.  The mother says that C continues to be stressed immediately before and after spending time with his father, that the father puts too much pressure on the children especially in relation to homework.  The mother also alleges that when the children have been with him he has failed to ensure they have completed projects and homework.

7. In relation to C it is said that his father gets frustrated and mean with C when he tries to help C.  Importantly, there is no evidence that suggests there have been intemperate outbursts by the father recently.  Not so long ago the father broke two ribs whilst being tackled by C.  Whilst the mother is suspicious of the circumstances that gave rise to that, the texts that passed between C and his father tend to indicate that it occurred in the course of playmaking between them.

1. Accepting for the present purposes of this application the above concerns of the mother, those concerns must be weighed against what now appears to be the position of the children.  It is further to be weighed, in the balance, that the general monitoring provided by the grandmother was not designed to deal with those issues specifically raised by the mother as just described but rather to protect the children from the possibility of any angry outbursts by the father.  The fact that the monitoring did not occur on all occasions when the children were with their father, takes the force away from its value. 

2. The present position is that, effectively, B makes her own arrangements to see her father and would appear not to need or desire any monitoring. The independent children’s lawyer, who has seen the children, submitted that the monitoring provided no comfort to the children and was of no practical use.  On the other hand, she said that removing the monitoring would be in the children’s best interests because it would assist in normalising the relationship with the father.

3. The mother submitted that these statements should be given little weight because they were merely a statement of position from an unknown time and were not evidence that could be tested.  On the contrary, they are the latest views of the children expressed by a professional acting in their interests and they should accordingly be given significant weight.  There thus seems to be a change in the position of the children, whereas the boys told Dr H a year ago that they received comfort from the monitoring that is not now the position.  This is not surprising.  Dr H himself saw the monitoring as temporary, extending for perhaps one or two terms.

4. There is real force in the submission of the independent children’s lawyer that removing the monitoring will enhance the children’s relationship with their father.  It will not send an inconsistent message about their father to them.  It would be in their best interests.  The independent children’s lawyer did not express a view of the children as to the extra day of time that the father seeks to have in three months and made no submissions on it.  On an interim basis, the evidence does not suggest that such a change would have any significant effect on the nature of the relationship between the children and the father, unlike the removal of the monitoring.

5. The second primary consideration is the need to protect the children from family violence.  Whilst there is independent evidence from the children as to two violent arguments between the parents, the wife’s general allegations of abuse and each of the parent’s allegations about the other’s drug taking cannot be resolved on an interim hearing.  There remains, the two assaults on C and the father’s impatience.  It is not alleged that there has been a recurrence of violent behaviour by the father towards the children.  The children seem to be happy to see their father and to see him without monitoring.

6. It is to be recalled that the children see their father from Friday to Sunday evening without monitoring once a month.  The present evidence does not establish that there is an unacceptable risk that the children are likely to suffer family violence when they are with their father and whilst the paternal grandmother is not present.

7. Indeed, the lifting of the monitoring is likely to be beneficial.  If the time is extended to Monday mornings, as the father seeks, there is some benefit in this because it will avoid a face-to-face changeover between the parents on Sunday afternoon.  Given the high degree of conflict between the parents, this would be in the interests of the children.

8. There are a number of other secondary considerations which require consideration under section 60CC of the Act. The views of the children have already been discussed and given appropriate weight. This is particularly so given their age, especially B’s. The children appear to have a good relationship with the mother, their grandparents and each other. As described above, the children seem to be re-establishing their relationship with their father.

9. The evidence demonstrates that each of the children communicates and spends time with both parents, which they seem to enjoy.  There is evidence that the parents communicate with each other about the long-term decisions concerning the children but conflict is clearly present.

10. The children go to private schools and appear to be well maintained by both parents.  A change in the children’s circumstances by removing the children’s monitoring and extending the time they spend with their father until Monday morning is likely to be in the children’s best interests as discussed above.  The evidence does not disclose whether any other change would have a beneficial or an adverse effect.  There is no practical difficulty or expense preventing the children seeing both parents.

11. The parents each raised issues to varying degrees of the capacity of the other to provide for the children’s intellectual and emotional needs.  The concerns raised by the mother about the father cannot be determined on an interim basis but these present concerns are not such that, even if established, would require the continuation of the monitoring.  The same must be said of the parent’s attitude to the children and the responsibilities to parenthood described by them.  The issues of family violence have already been discussed.

12. The existing orders provide for equal shared parental responsibility. They will continue. This means that the presumptions raised by section 65DAA of the Act are raised and the court must consider whether or not equal time with each parent is appropriate, even though it has not been raised by either of the parents. Such time is not appropriate it would be too disruptive to the children’s pattern particularly on an interim hearing where it is impossible to determine what the final outcome may be.

13. The court is then required to consider whether or not there should be a substantial significant time spent by the children with each of their parents. Whilst the time proposed by the father involved weekends and holiday time it probably does not include weekdays unless one counts the time from Friday after school as not being part of a weekend for there to be substantial and significant time within the meaning of the Act. There also needs to be time spent with a parent that is not on a weekend.

Conclusion

1. Taking into account that this is an interim hearing and that there is accordingly a need to act cautiously and not to take any step that would pre-empt a final hearing it is in the best interests of the children, in trying to re-establish a relationship with their father, to remove the monitoring. To the extent necessary it is found, for the purposes of this hearing, that if time spent by the children with their father from after school Friday to before school on Monday is not substantial and significant time, within the meaning of the Act, there is a finding that at this stage spending substantial and significant time with him is not in the children’s best interest.

2. The removal of the monitoring is in the children’s best interests as it otherwise acts as a fetter on their developing a good relationship with their father.  The children do not wish it to continue.  It occurs only every second occasion the children spend with their father.  It does not involve the paternal grandmother being present at all of the times when the children are with the father during periods of general monitoring.  Indeed, even when she is present, the children are often out with their father without her for several hours at a time.

3. The mother submits that the benefit is to enable the children to expand the children’s relationship with the father under controlled conditions and prevent flashpoints.  Quite how that is supposed to happen, on the 50 per cent of the time when there is no monitoring, is not clear.  Taking all these matters into account and in particular Dr H’s opinion that monitoring should be temporary, it is appropriate to remove the requirement for there to be monitoring.  I will make an order for the discharge of all existing parenting orders which encompasses discharging the requirement for general monitoring.

4. The father seeks to have the time the children spend with him extended to a Monday morning instead of half the periods of time terminating on Sunday.  As discussed earlier, there is merit in this course and it is supported by the independent children’s lawyer.  It avoids the potential for conflict between the parents as noted earlier.  It is consistent with the final parenting orders sought by the mother in that that is the time that she seeks the children spend with the father and thus does not pre-empt the final hearing.  On the other hand, the extension to Tuesday, which was sought by the father to take place in three months time, does go beyond the final orders sought by the mother and if made would pre-empt that application.

5. The material does not establish, on an interim basis, that such an extension is necessary or desirable and bearing in mind this is an interim hearing, we need to act cautiously.  That order will not be made.  The school holiday times will remain as the parties had agreed, but without monitoring and there will be orders for special days. 

6. B is 16.  She effectively makes her own arrangements to spend time with her father.  Counsel for the father submitted that B should accompany the other children when they spend time with their father, as she sees fit.  In response, it was accepted by the mother’s counsel that B’s conduct is largely consistent with what she wants to do.  Thus, it is not beneficial to constrain her to the times she wishes to spend with her father by orders.  It will be up to her to make her own arrangements which may well involve accompanying her brothers on their regular time spent with the father. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 4 September 2013.

Associate: 

Date:  8 October 2013