Mink and Lamb

[2007] FamCA 715

FAMILY COURT OF AUSTRALIA

MINK & LAMB [2007] FamCA 715

FAMILY LAW - CHILDREN – Parental responsibility – With whom children spend time – Orders - Variation

APPLICANT: MR MINK

RESPONDENT: MS LAMB

FILE NUMBER: NCF 570 of 2003

DATE DELIVERED: 29 June 2007

PLACE DELIVERED: Coffs Harbour

JUDGMENT OF: Bell J

HEARING DATE: 27 & 28 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laurie of Counsel

SOLICITOR FOR THE APPLICANT: Piper Craig Henry Lawyers

COUNSEL FOR THE RESPONDENT: Mr Priestley of Counsel

SOLICITOR FOR THE RESPONDENT: Susan Green Solicitor

Orders

1. The mother have sole parental responsibility for the children, a daughter born in December 1995 and a son born in May 1997

2. The Order of 25 August 2004 be varied to provide that the father communicate by telephone with the children from 6.30pm until 7.00pm on Tuesday of each week.

3. The mother is to facilitate any attempt on the part of the children to communicate with their father by telephone.

4. For the purpose of the time the children spend with the father in accordance with the Order of 25 August 2004, the father is to be responsible for collecting the children from and returning the children to the mother’s residence.

5. All applications are otherwise dismissed.

6. That pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Mink and Lamb

FAMILY COURT OF AUSTRALIA AT COFFS HARBOUR

FILE NUMBER: NCF 570  of 2003

MR MINK

Applicant

And

MS LAMB

Respondent

REASONS FOR JUDGMENT

1. This is an amended, amended, amended application for various orders sought by one Mr Mink hereinafter referred to in the application in relation to two children of his marriage to the mother, Mrs Mink, also now known as Lamb.  

2. Very briefly this matter came before the Court some years ago after the parties had commenced cohabitation in 1995, married at 1996 and two children were born of such union, they being a daughter born in December 1995 and a son born in May 2997.  They separated in 2002; reconciled on one occasion at least but thereafter have lived separately and apart.

3. The matter came before this Court eventually in 2004 when Moore J on 25 August 2004 made various orders in relation to contact by the father with the children.  I incorporate in these my reasons for judgment to that order.  We have endeavoured to ascertain the original Court file order but am unable to do so.  It is around but we cannot find it so I am relying upon an exhibit to one of the affidavits as containing the orders pronounced by Moore J.  Perhaps the reason for this is at the end of a contested hearing Moore J called upon the respective parties to put forward drafts incorporating her orders.  Two drafts were put forward and it necessitated Moore J on 25 August 2005, perhaps amalgamating both and picking the eyes out of them and making the order to which I have herein before referred. 

4. Since that time generally the father has complied with the provisions for contact as it then was but it will be noted, as I will be touching very briefly at a later stage upon, he has attempted to vary such orders on frequent occasions and this is one of the grounds - or rather his endeavours to vary the orders looms large in the mother's case.

5. The father eventually filed a further application for variation of the order made on 25 August 2004 which eventually became, as I have referred to, the amended, amended, amended application filed 13 June 2007 which extends over a considerable number of pages and sets out various orders which the applicant father would seek if he is resident in various areas.  I say this because he is a school teacher and has been employed by the Department of Education in New South Wales for a period of up to 30 years.

6. He has had towards the last few years of his employment by that Department a somewhat chequered career and has on at least one occasion been dismissed, if I can use that word and I use it as lightly as possible, removed from his position as a deputy principal on at least one occasion.  I think there is evidence that it has happened before.  He was at that time at the B School which is on the north coast of New South Wales, near the Queensland border.  And after reading the material contained in various subpoenaed documents from the Department of Education in New South Wales, it must have been really a school from hell or most like that old film, I think it was called Asphalt Jungle, or something of that nature which was terrible.  It just did not work obviously.  There seemed to be 78 per cent of the teachers were against, not only the principal but the deputy principal who was in fact the father.  He was removed from that position.  He suffered a depressive illness and was and still is being treated for depressive illness and I refer to the reports of Dr K.

7. The material which he has put before the Court in relation to the variation of this order of August 2004 is, as far as I am concerned, pitiful.  It puts little or no material before the Court which would enable me to come to the conclusion that the order should be varied.  I, in particular, refer to the second affidavit, that is the second affidavit of the applicant which was filed on the same date as the amended, amended, amended application, 13 June.

8. This affidavit consists - and I do not criticise anybody for being slim in the material that was put before the Court - of 11 paragraphs, none of which as far as I am concerned advance any pertinent argument as to why, as he seeks in his amended, amended, amended application for contact, as it then was, and I use the old word in preference to spending time, with the father should be increased.

9. Initially a point was taken by Priestley of counsel who appears on behalf of the respondent mother to the effect that the father has a Rice v Asplund problem here, that he has to show that the hurdle of there being a sufficient change in the circumstances since the making of the previous order in '04 was sufficient for me to reconsider the whole of the question of "custody" which is referred to in the authority Piskindy mentioned in the written submissions by Priestley of counsel at paragraph 10, and I incorporate in these my reasons for judgment that excerpt.

10. Rice v Asplund I feel, with great respect, is to a great extent blown out of all proportion.  What Rice v Asplund attempted to do was to stop frequent returns to this Court in order to vary orders which have been made only a comparatively short time ago.  Priestley submits that the onus is upon the father to show that there has been such a change in circumstances that would enable me to revisit the question of custody.

11. If he is correct, as far as I am concerned, I consider that there are two reasons why I should revisit.  One is because there has been three years almost that has evaporated since the time of the main order, the children were three years younger.  And, secondly - in fact there has been a vast change in the residence area of the father.  He now is living some comparatively short distance from where the children are residing at M, albeit he is some considerable distance, some 40 odd minutes, I think it is, from his present occupation which is at T School as deputy principal.  I must touch upon that at a later stage too as well.

12. I consider that the principles as enunciated in Rice v Asplund do apply that in so far as the applicant father is concerned, he has overcome the hurdle.  There is a little bit of a curious submission.  Priestley has submitted that in fact the father has not overcome the Rice v Asplund but the mother has because of those matters contained particularly in Dr P's report which is exhibited to his affidavit filed in this Court on 25 June 2007.  To me, if in fact she is successful in overcoming the hurdle, I do not see why I can say I will look upon the custody, to use the words of the authority, in relation to the mother but in some way or other I am estopped from looking at the father.  It must be opened up totally.  You cannot have a one-eyed look at the "custody" of these children.  Consequently I consider that the matter is at large.

13. As a result of that of course I feel as though I am now faced with the amendments to the Act which took place last year, I think the 73^rd substantial amendment to the Family Law Act in a period of 30 years, and I have to first of all consider the presumption which is set out in that Act and that is for shared parental responsibility. It is faintly touched upon by Laurie of counsel for the applicant father, that in fact there should be a shared parenting.

14. I am more than satisfied in all the circumstances taking into consideration not only the fact that the children have resided with the mother in her care and, shall we say, her established care ever since the day they were born, and the fact that there are concerns, I do not say there is sufficient evidence at this stage, there are concerns expressed in relation to the father's attitude towards the daughter, that I do not think that the welfare of the children would require me to enforce the presumption which is set out in the Act and which has been included by our political masters.  I consequently feel that it is large for me to decide who should parent the children and I make it quite clear, and as I think it in effect was conceded by Laurie, that should I be against him on the presumption that in fact the mother should be the person who has the sole parenting of the children, I so order.

15. The question of spending time with is an entirely different matter.  I have read the Act on numerous occasions as amended and the various matters that I have to consider are set out therein.  They have been touched upon, quite properly, by Priestley of counsel in his written submissions, the larger of the two, not the joint case summary, and I commend him for the amount of work that he has done in it.  The concerns which the mother has are particularised at paragraph 19.6 and in particular 19.7.

16. Some time ago a report was made by Ms D, a counsellor to this Court who has had vast experience, and of which she came to the conclusion that the applicant father was a narcissist.  This has been supported by Dr P who is a psychiatrist.  Ms D has qualifications in psychology.  This has been supported by Dr P who has interviewed the father.  Dr P's report, which is exhibited, as I said, to his affidavit of 25 June, is of great importance and, of course, is very, very difficult for the father to overcome. 

17. Notwithstanding the fact that the affidavit was filed on 25 June 2007, the report is dated in October 2006.  I refer to and incorporate in these my reasons for judgment his report which is annexure A to his affidavit of 25 June supra.  And I particularly emphasise paragraph 1.14 and 1.16 wherein he refers not only to Ms D’s diagnosis, if I can put it that way, but also to adopt Dr A’s, a clinical psychologist's report, which was put together as a result of an unfortunate incident which the father was, I think, charged with stealing from the Department of Education various woodworking tools generally but which, as a result, not only of Dr A’s report but also another report.  No further steps were taken and I do not believe any conviction was made and the father’s reputation is clean and unsullied.  He appears to have been suffering a somewhat compulsive and/or depressive disorder at that time as well. 

18. The next matter which is of grave concern, in so far as the mother is concerned, has been emphasised by Priestley of counsel on behalf of the mother, is that which is contained in paragraph 5.2 on page 8 I think it is wherein he says:

    Whilst observing the interaction between the father and the two children I felt quite uncomfortable in the obvious preference that the father showed towards [the daughter].  He appeared enamoured by her.  His body language was such that he leaned towards her and touched her more frequently than his son.

    The conversation also tended to focus on [the daughter] to the extent that I found myself intentionally including [the son] in the conversation. 

19. He further sets out in that affidavit his discomfort in relation to the manner in which he dealt with the daughter, and also he refers in the interview with the mother, the mother's concern about the inappropriate manner in which the father kissed his daughter, see 2.3, and generally was concerned because, in her view, the father had acted in an inappropriate manner in relation to daughters of the mother from a previous relationship.  See particularly the affidavit of Ms L which was filed in this Court too as well.  She is extremely concerned about this.

20. The reason why I am touching upon that is that as I said the report was dated in October, notwithstanding the fact it was only put before the Court by way of affidavit of 25 June.  The father has had that report for a considerable period and has read it.  The thing that concerns me particularly about his evidence is not only is there not any explanation in his affidavit of June of this year in relation to the daughter, but neither is there any mention that in fact this overtly affectionate behaviour towards himself has been modified as he said in his evidence.  In his evidence in the Court he said that he no longer is as affectionate towards the daughter.  He no longer cuddles her, as it is alleged for excessive periods up to five minutes and kisses her for that length of time.  He now gives her a cuddle at the commencement of his periods of spending time with and at the cessation thereof.  This was not mentioned at all.

21. The only improvement he says is in relation to another complaint of the mother and that is the telephone conversations which she says put enormous and inordinate pressure upon not only the daughter, but upon the son.  He mentions the fact that he has now limited such telephone - I would have thought that the telephone complaint was minimal in relation to the complaint which I clearly am able to infer from the facts could be classed as grooming of his daughter, and that of itself is something which is terrifying to any mother.  It would be terrifying, I would have thought, to any parent that one of the parents is grooming a child of the opposite sex with a view to sexual behaviour of an inappropriate nature taking place.  I am not for one moment finding that, but I make that quite clear.  Dr P also says that.  He says that there is no evidence of abuse but the concern is that it is either; (1) grooming, or (2) it is totally inappropriate behaviour for the daughter. 

22. This must have been in the applicant's mind because of an e-mail which was put before me which was forwarded to the daughter which it is sent from the father to the daughter on 10 September 2006.  It is exhibit 6.  I refer to that in where he says:

    As for you not wanting to give daddy a kiss or cuddle hug over the phone anymore, I do not understand why.  Not long ago you were the one who would not stop talking on the phone and give such a big kiss and cuddle.  You would outdo me.  It is very normal for a dad and his children to do this.

23. And it goes on and I incorporate that last one paragraph in these reasons for judgment.  Once again, he does not mention this.  This is an e-mail which was made on 10 September 2006.  No mention is made of these kisses and cuddles being modified in either of the affidavits.  Why?  I do not know.  In his June affidavit he does not set out anything about the type of house which he has now leased and there is evidence before me that he has leased a home, whether it is going to be from 15 June or what.  He has leased it.  It is, as I said, a comparatively short distance from the residence of the children.  There is no description of such home and it appears to be in a somewhat isolated area, and that was elicited by way of cross-examination, no evidence of it in his affidavits.

24. What evidence has he put before me that it is in the interests of the children?  I emphasise that, notwithstanding the political masters have set out a long list of subparagraphs which looks more like the Income Tax Act than anything else in relation to the matters we have to consider, I consider that the most important thing in any case in relation to children is to decide what is in the best interest.  What does he put forward that it is going to advance the children by having longer periods with him?  Nothing that I can see.  Nothing of any persuasiveness, nothing germane to his argument. 

25. What else are we concerned with?  The son.  He appears to be the non-squeaky wheel.  He gets little or no attention on the evidence before me and this is submitted to by the mother.  There are two things which have been raised.  One is the photographs.  I do not think there is anything sinister in these photographs being purchased.  The father caused to be purchased a pack of photographs which he says were photographs of the final class of the daughter when she was in primary school last year.  They consisted of up to 22 various types of photographs.  He purchased that for the daughter and got one for the son.

26. The marshmallow incident.  The father takes the daughter off to the beach to have a barbeque and toast marshmellows.  Wonderful.  I think it is a lovely idea.  The son was not invited.  He said, as I interpret, "This is a bonding thing between myself and my daughter."  What about the son?  Dr P was embarrassed that the son seems to be ignored.  How is an increase in time going to advance his welfare if in fact he is feeling out of it?  It would make it worse, it would magnify.  I am not convinced in any way whatsoever that the amount of time that the father spends with the children should be increased.  The next question is whether it should be decreased.

27. Priestley has put a particularly strong argument for decreasing in the time spent by the father with the children.  In fact he seeks a variation of the order in accordance the respondent's application, as varied by a handwritten draft suggestion put before me late in the piece.  It is done with purpley coloured ink.

28. Notwithstanding he seeks a diminution in the time, he still, on instructions, puts before the Court that there should be at least one weekend spending time with the father of the children per term and one half of the school holidays.  If in fact the father is minded to in any way groom or act in a sexually inappropriate manner to the daughter he is going to do it on one weekend during the term and for half the school holidays.  I must say that Priestley was aware of that and I think that his submissions were somewhat guarded in relation to it.

29. I must say that I am also of the view, which this Court has had for many years prior to our political masters inserting it in the Act, that the children have rights in this Court.  The parents do not have any rights.  The parents have duties.  One of the rights of the children is the right to get to know their parents, and I consider that if I was persuaded by the mother to lessen the time within which the children spend time with their father, that that would not be advancing their welfare, but there is another point which the mother has brought up and that is the continual - perhaps it is not a word that has been used by anybody else, but I will use it - sniping by the father of her.  This is set out in the chronology put forward by, once again, Priestley.  He has, on numerous occasions, sought variations of the order.

1. On one of the occasions he sought some 10 days subsequent to the final order being made in 2004. There is evidence before me that I am quite satisfied that he has been, I use the word "sniping", in endeavours to vary these various orders. In fact, in his final affidavit he says that the reason why he brought this application for variation of the orders was that he could spend time with the son, I think it was, on his birthday. I am not satisfied that, as I have said, he should have any further time. I am concerned about the so-called, as I use the word advisedly, "sniping", and I will be making an order that in fact no order for any relief under the Family Law Act by either of the parties will be made in the first instance other than ex parte before me. Do you understand that, Ms Green, Ms Filewood? And as a result thereof I will consider the matter and if, in fact, the material put before me convinces me on a prima facie basis that the application should be proceeded with, I will then call upon the respondent to such application to file material.

2. I do not think that the children's welfare would be advanced by lessening the period of time they spend with their father.  In other words I am in the position where I would not make any other order other than the order which is at present is in existence save in relation to the telephone calls.  These telephone calls I think are being very difficult for the children, in particular, the daughter.  The father has referred to this in his e-mail, exhibit 6 of 10 September and, consequently, I consider that the telephone conversation should be limited to once per week.

   RECORDED  :  NOT TRANSCRIBED 

   I consider that the time must be limited and I will order that it will be from 6.30 pm to 7.00 pm on a Tuesday but I will further order that the children's wishes to contact their father by telephone be facilitated by the mother.

   RECORDED  :  NOT TRANSCRIBED 

3. I must touch upon one further thing.  Another matter which has arisen which I had overlooked, and I must say I considered very important.  Dr P was of the opinion there should be no increase.  I have found for other reasons there should not be any increase, but he believes there should not be any increase in the time spent by the father with the children unless the children are approached and their wishes are ascertained by way, I assume, of a subsequent family report. 

4. There is some evidence before me that the children find it boring to be with their father since some complaint that he takes them only to the bird park.  I do not believe that this matter should in fact be adjourned to enable the preparation of a further family report.  If in fact at a later stage it is considered by either of the parties that such a report will be of assistance in coming to a conclusion that would advance the welfare of the children, such application can be made and of course it will be made to me in accordance with the order I have already made. 

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: