Norris and Sitera

[2008] FamCA 118

FAMILY COURT OF AUSTRALIA

NORRIS & SITERA [2008] FamCA 118

FAMILY LAW – CHILDREN – Proceedings taken out of list pending attempt at therapy to resolve parenting issues – interim orders – appropriate changeover arrangements for young child suffering separation anxiety in circumstances where mother not positively encouraging child.

Family Law Act 1975 (Cth)

APPLICANT: MR NORRIS

RESPONDENT: MS SITERA

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 858 of 2005

DATE DELIVERED: 27 FEBRUARY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 27 FEBRUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PUCKEY

SOLICITOR FOR THE APPLICANT: LANDER & ROGERS

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MARCHETTI

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MCCLUSKYS

Orders

1. That the trial date of 16 April 2007 be vacated.

2. That all extant applications be taken out of the list of cases awaiting a hearing with the right of reinstatement.

3. That the reinstatement referred to in paragraph 2 hereof be on condition that:

   (a)the parties satisfy Registrar Kaur or such other registrar responsible for the management of the file that the case is ready to proceed;

   (b)the orders hereafter require variation or enforcement; or

   (c)that the matter is otherwise ready to proceed but one party is refusing or failing to prepare for that hearing.

4. That the children

   E… born … June 2003
                 C… born … July 2005
          immediately restart spending time with the father, pending trial:

   (a)from 11.00am Saturday 1 March 2008 until 5.00pm Sunday 2 March 2008 and a similar period on the weekends commencing 15 March 2008 and 29 March 2008;

   (b)from 6.00pm Friday until 5.00pm Sunday each alternate weekend commencing 11 April 2008; and

   (c)on holidays and special occasions as prescribed in the orders made on 2 February 2006 and 12 October 2006 (with both children to attend at the same times).

5. That until changeovers can be facilitated as provided by W Centre and/or other professional agent they occur as set out in paragraph 6 hereof.

6. For the purposes of facilitating effective changeovers pursuant to paragraph 4 of these orders:

   (a)    the changeover venue is to be nominated by the Independent Children’s Lawyer from time to time commencing with … McDonald’s (… Road);

   (b)   the mother is restrained from attempting to inform or forewarn the children or either of them that they will be attending the changeover venue for the purposes of seeing the father, or allowing any other person to do so;

   (c)   the mother shall arrive at the changeover venue no later than 10 minutes prior to the commencement time, deliver the children to the children’s playground, inform the children that she will arrange some food whilst they play and leave the building no later than the commencement time;

   (d)   the father shall arrive at the changeover venue no earlier than 5 minutes prior to the commencement time and no later than the commencement time, remain outside the building until the commencement time and immediately enter to collect the children;

   (e)    the mother is restrained from attempting to say goodbye or in any other way inform the children that she is departing the changeover venue or remaining in the vicinity of the venue beyond the changeover time or having any other person do so on her behalf;

   (f)    each party is restrained from attempting to communicate with the other in any way at the changeover or immediately prior to or after the changeover.

7. Both parties pay in equal shares any professional costs incurred with Ms P or any other agency she directs the parties or either of them to participate with.

7(A)The parties attend upon and at the direction of Ms P for therapeutic (and confidential) assistance with the issues identified in these proceedings and follow all reasonable directions of Ms P to facilitate the children’s relationships with their father.

1. The mother keep the Independent Children’s Lawyer and father informed of any kindergarten or child care facility attended by either child.

2. The father’s costs of this day are fixed at $2500 and reserved.

3. The interim applications are otherwise dismissed.

4. 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 CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. That the reasons for judgment arising out of these orders be delivered in due course.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 858  of 2005

MR NORRIS

Applicant

And

MS SITERA

Respondent

REASONS FOR JUDGMENT

1. The final hearing of this matter was listed before me to commence on 16 April 2008.  It is a dispute between the husband and the wife in relation to the husband’s time to be spent with the two children of the relationship E (a boy) born in June 2003 and C (a girl) born in July 2005.

2. It will therefore be noted that E is three years of age and C is two.  There is some significance in the fact that C was born subsequent to separation.

3. The husband is a 32 year old driver and the wife is also 32 years of age but engaged in caring for the children on a full-time basis.

4. The parties married in January 2001 and separated four years later in 2005.  The children remain with the wife and have done so since the separation.  There is little dispute that she has been the predominant carer for the children throughout their lives.

5. The husband commenced the proceedings on 16 February 2005 and as a consequence of the commencement of those proceedings, the parties attended upon psychologist Mr P.  Mr P’s first attendance with the parties culminated in a report in June 2005.  He has since done further reports and I shall refer to those shortly. 

6. On 2 June 2006, the parties consented to final orders that the children live with the wife into the future.  Those orders were made by Senior Registrar Fitzgibbon.  At that time, the husband’s interim contact arrangement was to be on alternate weekends from Friday to Sunday. 

7. Those orders created serious problems.

8. On 12 October 2006, the parties were back before the Court and consented to orders that the husband’s time with C be organised through a contact centre or at the local police station.  That did not resolve the problem. 

9. In May 2007, the Court appointed an Independent Children’s Lawyer.  The matter seemed to settle down at some stage then and in June 2007, the parties began preparing for trial. 

10. The background of the parties’ relationship is replete with allegations of serious violence.  I do not in any way intend to be understood that I am treating those as anything other than serious.  However, I have to acknowledge that they are in dispute.  Mr P in his report canvassed some of those issues and expressed concern that the husband’s attitude towards the issue of violence was to diminish its seriousness.  That is not the attitude of the Court nor is it mine.  Notwithstanding that the issue between the parties is predominately about how much time the husband spends with the children, the issue of violence affects not only their relationship but also the ongoing relationship of each of them to the children into the future.

11. On 14 December 2007, the matter came before me to be allocated a final hearing and at that stage, I appointed the date to which I have earlier referred. 

12. Apart from some initial representation, the wife has been representing herself throughout.  That continues.  To some extent that has made negotiations more difficult as will be seen from some of the more recent affidavits.  That said however, in discussions with the wife at the Bar table, I am satisfied that she understood exactly what was happening and that she has not been prejudiced by not being represented before me.

13. In his affidavit filed 19 February 2008, the husband referred to the fact that there had been difficulties with the changeover of the children.  He said that whilst C separated easily from the wife, E had been distressed at that time.  He said that E’s distress had increased significantly in the past four months and that he did not press the visit on a couple of occasions in late 2007 because of that.

14. The W Centre which was responsible for supervising the contact arrangements was sufficiently concerned about the distress to make a recommendation that the children attend together and that there be therapeutic counselling and mediation.  I shall return to that issue below.

15. In January 2008, a changeover occurred on Friday 11 January and E was distressed.  He would not leave the wife’s car.  In the notes of the contact centre, the wife has been recorded as using language to E and by inference, C, that if the children wanted to go or not go with their father, it was a matter for them.  I have indicated very clearly to the wife in the courtroom that I do not think that that is responsible parenting.  She made no secret of the fact that that was in fact her position.

16. As a result of what the contact centre observed, an indication was given that they would no longer facilitate the changeover out of concern for E’s emotional welfare.  As such, the arrangements for the ongoing contact with the husband came to a halt.  The husband’s affidavit made reference to the fact that he was prepared to participate in some counselling with Ms P and also to have a paid supervisor involved in handing over the children so that the contact would be effective.

17. The wife’s response which I understand she prepared herself set out that she wanted the contact to work but it was on the basis that the children were “comfortable with the arrangement”.  That again highlights the philosophical view that she has adopted. 

18. I have already mentioned that the Police Station had been included as a handover place and the wife indicated that that was not ideal but at least it was a last resort and safe option.  She felt that way because of the family violence to which I have already referred.

19. Importantly, the wife referred to the fact that the children came back happy from visits and highlighted the fact that the problems were really associated with the changeover at the commencement.  That is still not only the interim issue but it seems to me to be the long term and fundamental issue in this case.

20. The wife’s response to the husband’s material set out that on a number of occasions, she noticed that the husband did not encourage E to go with him.  She said that E was a “sensitive child” and “needs reassurance from his father”.

21. She was critical of the fact that the husband had effectively abandoned the contact process but I have a very strong impression on the untested evidence that what the husband was doing based upon advice from the contact centre, was sensible.

22. The wife suggested that the husband was using the handover period to harass her including “touching” and “kissing” her.  I have made it very clear today that both parents need to focus on the children rather than on their personal relationship.

23. One of the difficulties with this case as I have already mentioned has been that the most objective analysis of what has been going on can be seen from the various reports of Mr P.  He said in a report dated 8 May 2007 that the family needed a fundamental shift in the understanding of the children’s needs and that each party had to take on responsibility for their own behaviour placing the children’s needs above their own.  This was a reference to both parties.  It was also said in the vacuum of not having the evidence tested.  Despite that, it is obvious that the wife’s philosophical view about the entitlement of the children to determine whether or not they attended and the husband’s uncertainties about whether he should persist with the contact not to mention the question of the apparently alleged harassment of the wife all indicate that the children are being subjected to chronic parental conflict.

24. Mr P in May 2007 said that there was a desperate need for psychological assistance and management in the “immediate” term.  Nothing could be more profoundly prophetic than that statement having regard to what has occurred in December 2007 and January 2008.

25. I was handed a letter written by Mr P.  This letter was only days old and indicates very clearly that he has read the material filed by the husband and is not at all surprised as to the reaction of the children.  His view is that the husband’s approach to getting some therapeutic counselling is the only sensible way to go.

26. Having digested all of that information, I turned to each party and asked whether they agreed that the two issues were that first, the handover had to be resolved and secondly, the amount of time had to be determined or agreed.

27. In respect of both issues however, the clear implication of those two problems was that unless the parents focussed on sorting out their own individual problems including with each other, the dilemma would increase.  It is obvious that even if the trial proceeded, I would look favourably if not enforcibly upon sending the parties off for some form of mediation or counselling to address the parental issues.  It seems to me that it is not one-sided.

28. One of the criticisms of the wife has been that the husband’s mother was present and that caused problems.  In response, the husband said that it was his wife’s request initially that the paternal grandmother be present in some form of “supervisory” role. 

29. Stripped back, it is very clear and supported by the Independent Children’s Lawyer that the control needs to be taken away from the children and the parents need to start focussing on their relationship as parents. 

30. The parties had some time to discuss things.  They returned and indicated that the issue was principally about the amount of time that the children would spend with their father.  I have a very clear recommendation from Mr P in this case that the children should be together at all times.  I accept that that is not only sensible but is in the best interests of these children.

31. The wife wanted the period of time to be built up and Mr Puckey on behalf of the husband sensibly agreed that that would be acceptable on the basis that it might alleviate some pressure.  I could see no reason why having regard to the advice of Mr P, the children should not be together and that the overnight period commence immediately moving to two nights as quickly as possible.  Accordingly I propose to make orders along those lines.

32. The parties have agreed that they need to attend upon a therapist to work on their relationship.  As I pointed out however, that relationship requires trust in the therapist and is not something that can magically happen overnight.  The constant threat of litigation not to mention the problems of ongoing contact can only frustrate and damage the possible success of the therapeutic work.  I do however intend to leave that issue to the Independent Children’s Lawyer on the basis that each party now agrees that the case should be taken out of the list and reinstated only for the purposes of the matter being finalised in the event that the parties’ relationship breaks down or the orders that I propose to make are not carried out.

33. That leaves the fundamental problem of the changeover still.  The parties have tried the contact centre and that has caused difficulties.  The parties have tried the police station and there is difficulty about that as well.  Both parties ironically enough were prepared to accept the McDonald’s Restaurant but there was even dispute about how that should be effected.

34. I have made very clear that the only way that such a changeover will occur successfully is if the wife does not tell the children that they are going to be seeing their father but rather going to McDonalds.  The children could then be placed in the playground area and the wife leave without saying goodbye to them and the husband would then collect them.  The wife sensibly raised concerns about the timing of all of that and what if the husband did not comply.  I have made an order that the husband attend and hence it is the positive obligation.  She raised the question of what would happen if he was late and having regard to the way in which the orders have been framed the parties are to have a common timing system set up by the Independent Children’s Lawyer.  The suggestion was that the parties use the digital printout of time on the McDonald’s cash register receipt.  On that basis, there can be no argument about what time each party has to be at the particular venue and what time each has to leave.  If the husband fails to comply with his obligations, the wife will be at liberty to leave the restaurant.  Normally common sense would require that there be some latitude but in this case having regard to the fact that the children need to be handed over in a very tight timeframe, I have no hesitation in saying that I intend that the times be strictly adhered to.

35. The wife also sensibly raised the question of what happened if the children were ill and she had to obtain a doctor’s certificate.  I pointed out that my view is that the parties need to start communicating with one another and that if the husband is capable of having two days and overnights with the children, he is capable of caring for a child with normal childhood illness.  I repeat that I would be wanting to understand that the child was so ill that that could not occur for the arrangement not to take place.

36. It goes without saying also that the children will sooner or later realise that going to McDonalds is where the changeover occurs and if the stress caused to E is as it has been explained by both parties, that stress will continue.  However, I have made the suggestion which is now incorporated into orders that the wife can nominate a number of different venues one of which is to be chosen at various times by the Independent Children’s Lawyer to overcome that problem.  Whilst I very much appreciate that the children may be stressed by the situation, the evidence is clear that the children settle down after the handover has taken place and there is very limited evidence of any subsequent problems and reactions. 

37. Obviously, until such time as the wife is positive about the children having contact with their father, those problems will continue.  For that reason, I am requiring the parties to look seriously at their own relationship as Mr P has set out.

38. The husband also made an application for costs and the wife opposed that application. I have agreed to fix the costs of the husband but reserved them to the final trial stage. In so far as the parties resolve the problem and follow the spirit of these orders and make them work, I would be most unlikely to see that there is any justification for departure from the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”). In so far as there was a suggestion to the contrary, I might take a different view.

39. This is still a parenting order and the Act requires me to contemplate the question of equal shared parental responsibility in any such application. There are two reasons in this case that are clear for not giving that issue any significant attention. There is a third issue namely the question of violence but having regard to the fact that those allegations are untested, it is not appropriate for me to make any statement about that issue. The two issues that are relevant are that the parties have already agreed on equal shared parental responsibility notwithstanding that that is not what has been happening. It is not appropriate at this time for that issue to be revisited. The second issue is that in an interim proceeding, the Court does not have to apply the presumption of equal shared parental responsibility leading to a sharing of time if the Court feels that it is not appropriate in such an interim proceeding to do so. Having regard to the dispute between the parties and in particular what they have embarked upon today, it is not necessary for me to say more than I do not think it is appropriate to visit the question of equal shared parental responsibility in these reasons.

1. I can only make an order which is in the best interests of the children. The parties have not been able to reach agreement upon the question of what time the husband spends with the children and that requires me therefore to make a parenting order. I am referred by s 60CC of the Act to a variety of provisions for consideration before making any order that I find to be in the best interests of the children.

2. The first of those issues relates to the question of the benefit of the children having a meaningful relationship with their respective parents.  In this case, they already have a relationship which I find to be meaningful with the wife but the relationship with the husband is bordering on non-existent.  The longer that dilemma continues, the more likely it is that the children will not benefit from any such relationship.  Whilst the wife was prepared to agree to some limited arrangement between the husband and the children, I have the benefit of an expert telling me that the amount of time that I am about to order is appropriate for these children having regard to their ages as well as the time that they have otherwise spent with their father.  In circumstances, I am satisfied that the best way for the children to have a meaningful relationship with their father is to make the orders that I propose.

3. The second consideration of a primary nature relates to the need to protect the children from physical or psychological harm or from them being subjected to or exposed to, abuse, neglect or family violence.  I am not at all comfortable that I understand on the evidence just exactly what the situation is as between the parties but I am sure that the children are facing a serious dilemma which is causing them angst and confusion. 

4. In respect of the additional considerations, the children are not mature enough to have any understanding of what is really going on in their lives and hence their views are not given any weight.

5. Mr P who is the only objective person in these proceedings seems to have understood very clearly what the nature of the relationship is between the children and the parents and he has said that the husband has the capacity to care for the children. 

6. I have some serious reservations about the wife’s willingness and ability to facilitate and encourage the ongoing relationship with the children and the husband notwithstanding what she says in her affidavit having regard to the philosophical views that she holds as I have set out.  In my view, the question of her ability to make these orders work will become a fundamental issue to be litigated if the therapeutic intervention is not successful. 

7. I have contemplated all of the things that the parties have endeavoured to undertake up until now and can see how the practical difficulties of those arrangements have caused problems.  In my view, this is a last resort and if it fails, then the matter should be properly and fully ligated at which time I can make more appropriate orders.

8. As I have already pointed out, the question about the wife’s attitude to the responsibilities of parenthood leaves me concern.  I am convinced that if she wholeheartedly embraces the therapeutic assistance to be organised by the Independent Children’s Lawyer, it is to be expected over time that those problems will be resolved.

9. The questions of family violence are always an important consideration and in so far as the wife’s claim to have been harassed in recent months is true, I would take a very dim view of the husband’s position when determining what is in the best interests of the children if the matter was subsequently litigated. 

10. Accordingly, it is my view that the orders that I have made are in the best interests of these children.

I certify that the preceding Forty Nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 February 2008