Osferatu and Osferatu

[2011] FamCA 354

FAMILY COURT OF AUSTRALIA

OSFERATU & OSFERATU [2011] FamCA 354

FAMILY LAW - CHILDREN – interim orders – relevant matters to consider pursuant to s 60CC(2) and (3) in the circumstances of a truncated hearing.

Family Law Act 1975 (Cth): s 60CC(2) and (3)

APPLICANT: Mr Osferatu

RESPONDENT: Ms Osferatu

FILE NUMBER: SYC 2318 of 2011

DATE DELIVERED: 6 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 4 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: R Mater

SOLICITOR FOR THE APPLICANT: John De Mestre & Co.

COUNSEL FOR THE RESPONDENT: T Kirk SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. That by consent interim orders are made in accordance with the amended document entitled ‘Interim Orders by Consent’ filed 5 May 2011 and annexed hereto.

2. That interim orders are made in accordance with the orders sought by the wife as set forth in the amended document entitled ‘Interim Orders in Issue’ filed 5 May 2011 and annexed hereto.

INTERIM ORDERS BY CONSENT

1. That pursuant to S68L of the Family Law Act the children be separately represented by Glenn Thompson (“independent children’s lawyer”) with the husband paying all of the lawyers fees as and when they fall due in the first instance with the portion for which the wife ought be liable being reserved to the trial judge at the final hearing.

2. That pursuant to Part 15.5 of the Family Law Rules, Dr W psychiatrist be appointed as a court expert to urgently enquire into and report upon the following matters relating to the welfare of the children with the husband paying the expert’s fees when they fall due and the proportion for which the wife ought be liable being reserved to the trial judge at the final hearing:

   (a)the nature of the children’s relationship with each of the parents;

   (b)the willingness and ability of each of the parents to facilitate and encourage a continuing relationship between the children and the other parent;

   (c)the likely effect of any change in the children’s circumstances as proposed by each of the parents;

   (d)the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents;

   (e)the likely impact of each parent’s proposal as to future parenting arrangements on the children;

   (f)the capacity of each parent to care for the children and provide for the needs of the children, including their emotional and intellectual needs; and

   (g)any other matter that the court expert considers important to the welfare or best interests of the children including but not limited to those referred to in section 60CC,

   it being the preferred approach of the court that the expert’s report not be in the form of a transcript but that the relevant issues being dealt with under separate headings.

3. That each party be restrained until further order and without admission from discussing with any person any aspect of the parentage of E except:

   (a)      to legal and/or medical specialists;

   (b)in evidence before any competent court including the Local Court hearing the AVO proceedings instituted by the New South Wales Police on behalf of the wife provided however that both parties shall take whatever steps that are reasonably available to have the Local Court proceedings dealt with in camera

   (c)and the court NOTES that the following remarks are made without seeking to inhibit or in any other way interfere with the Local Court’s exercise of its judicial capacity:

   “There are before the Family Court, proceedings in relation to the children of this marriage namely [S], [B] and [E] and it would not be in their best interests if their circumstances were published as a result of the Local Court proceedings involving their parents and should it be possible to close the Local Court that would clearly be in their best interests.”

4. That the husband and the wife shall, pending further order, communicate with each other only through solicitors or by email passing directly from one to the other, other than in emergencies.

5. That pending further order both parties be restrained from doing or saying anything to the children or in their presence or hearing or encouraging or permitting anyone else from doing or saying anything to the children or in their presence or within their hearing, whether they be separate from each other or together, which:

   (a)denigrates the other party or is damaging or detrimental to the other party’s relationship with any of the children; and

   (b)discloses any details of these proceedings to the children.

6. That both parties be restrained from using B as a messenger between them regarding the arrangements for the children.

7. That whilst the children or any particular child is in the care of one of the parties the other party shall not contact that child or those children by telephone, SMS, email, Facebook or otherwise more than three times on any given day.

8. That the proceedings are otherwise adjourned to a date to be fixed by the Court but they may be restored to the list on 3 days’ notice by application with an affidavit in support.

9. That each party’s costs of 4 and 5 May 2011 be reserved.

INTERIM ORDERS IN ISSUE

Contact arrangements:

1. That pending further order, S live with the husband as follows:

   (a)Wednesday and Friday after school or from 3.00pm if not a school day to 7.00pm commencing on 11 May 2011;

   (b)such further times as agreed,

   and at all other times with the wife.

2. That pending further order, B live with the wife as follows:

   (a)each alternate weekend from Friday after school or 3.00pm if not a school day to the commencement of school on Monday commencing 13 May 2011;

   (b)each Monday and Thursday from after school or 3.00pm if not a school day to school the following day;

   (c)such further times as agreed,

   and at all other times with the husband.

3. That pending further order, E live with the husband as follows:

   (a)each Wednesday and Friday after school or from 3.00pm if not a school day to 7.00pm;

   (b)each alternate weekend when B is with the husband from Friday after school or 3.00pm if not a school day to 5.00pm on Sunday;

   (c)such further times as agreed,

   and at all other times with the wife.

Notations:

A.The court notes that the wife’s amended proposal is intended to optimise the time the children are together, to coincide with tutoring arrangements and to increase the time B spends with the wife and S spends with the husband.

B.In relation to Order 1(b) Monday and Thursday are tutoring evenings for S at home.

C.In relation to Order 2(b) Monday and Thursday are also B’s tutoring evenings at the home which concludes around 8.30pm.

IT IS NOTED that publication of this Judgment under the pseudonym Osferatu and Osferatu is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC2318 of 2011

Mr Osferatu

Applicant

And

Ms Osferatu

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings interim parenting orders have been sought by each of the parties in relation to the three children of the marriage.

2. The parties cohabited for a period of approximately 11 years which commenced during 1999 and concluded when they separated, according to the husband, under the same roof on or about 3 January 2011.

3. The wife contends that separation occurred on 6 February 2011.  In any event, it is common ground that the parties ceased to reside together in the former matrimonial home on or about that date.

4. The preponderance of the affidavit evidence and the relevant application and response contend that the parties married in February 2000, although in some documentation, the date given is in January 2000.

5. The husband is the applicant.  He is 54 years of age and a company director.

6. The mother is 38 years of age.  She appears to be principally engaged in home duties.

7. The three children of the marriage are as follows:

   (a)B, 10 years of age, having been born in June 2000.  He is a pupil in Year 5 at School 1, Sydney Suburb 1.

   (b)S, 10 years of age. She is a pupil in Year 5 at School 2, Sydney Suburb 2.

   (c)E, four years of age, having been born in June 2006.  E is attending a pre-school.

8. S and E live with the mother.

9. B primarily lives with the father.

10. For obvious reasons, the marriage has not been dissolved.

11. On … March 2011, an interim Apprehended Violence Order was made returnable for … April 2011.  The date for hearing on a final basis in the Local Court is on … June 2011.

12. The parties had resided in the former matrimonial home at B Street, Sydney Suburb 3.  The wife continues to reside there with S and E.

13. The parties had previously entered into a binding financial agreement.  There are pending proceedings between them in relation to whether or not the agreement should be set aside and also in relation to enforcement of its substantive terms.

14. During February 2011, the parties completed a parenting plan which provided for the three children to live with each party on a week-about basis in the former matrimonial home.  That plan was implemented until during March 2011 when the relationship between the parties further deteriorated due to allegations that the wife had beaten B.  In addition, the simmering and continuing breakdown in the relationship was heightened by the allegations to which I have referred as well as the continuing resentment as to the paternity of E.

15. Extensive affidavit evidence was provided by each of the parties.  No doubt they have been advised by very competent and experienced legal representatives, on the hearing of an interim application, the practice and procedure is for submissions to be made on the Papers and absent the strength of the evidence, including any corroborative evidence, it is often not possible to make findings of fact in relation to heavily contested allegations such as in these proceedings.

16. I should note at this point that leave was not sought to cross-examine either of the parties.

Issues

1. The factual issues of relevance which emerge of paramount consideration in relation to the best interests of the three children are focused upon allegations that the parties have made in relation to the following:

   (a)      physical chastisement of B by the wife;

   (b)      poor behaviour of B to the wife;

   (c)the husband’s extreme derogatory comments about the wife in the presence or hearing of B and/or S and perhaps E, and in addition, his reference to the pending apprehended violence proceedings to or in the presence of B;

   (d)the husband, by his words and actions, having adversely affected the relationship between B and the wife with a corollary impact upon his own relationship with S.

2. The effect of the breakdown in the relationship between the parties and their deeply conflicted parental relationship is most concerning.

3. So far as B is concerned, he has behavioural problems including missing school.  He has been receiving assistance in terms of coping with the issues that are impacting upon him from both a school psychologist as well as being engaged in therapy.

4. S, on the evidence, has had a disruption to the relationship between herself and the husband.

5. E’s general health issues have perhaps been exacerbated by the emotional effect of the breakdown of the marriage and the very significant parental conflict.

6. To the credit of the parties and particularly the assistance obviously provided to them by their legal representatives, certain interim parenting orders are sought by consent to which I will make subsequent reference.

7. During the course of submissions, it was agreed that there be amendments to those minutes which are as follows.

8. In paragraph 3(b), the words in brackets are deleted, and after the words “were published” in the third line in quotations, the words “as a result of the” should be inserted.

9. In paragraph 5, after the word “presence” in the second line, the words “or hearing” should be inserted.

10. In paragraph 8:  the words “by application with affidavit in support” be added, this being an amendment that I did not discuss with counsel but which seemed to me to be appropriate upon reviewing all of the relevant papers.

11. In any event, it is a machinery provision which does not require submissions to be made.  It will ensure that a matter is not simply relisted but that each party will have notice of the orders to be sought and any further affidavit evidence in support.  Consequently, it will enable a more orderly and better managed step to be taken in the ongoing litigation in the event that an overall settlement is not reached.

Conclusion

1. I have concluded that it’s in the best interest of the three children for orders to be sought substantially as sought by the wife as set forth in the document entitled “Interim orders in issue” which were filed in Court on 5 May 2011.

2. I have accepted that overall the balance favours those orders being made in comparison to those sought by the husband.  That is not to say that the orders sought by him are not attractive and represent significant thought as to what may be in the best interests of the three children.

3. However, I have concluded that the orders sought by the wife are to be preferred for the reasons indicated in that document and emphasised by senior counsel for the wife.

4. Those reasons are that they will “optimise the time the children are together to coincide with tutoring arrangements and to increase the time [B] spends with the wife and [S] spends with the husband”.

5. In my view, orders which can maximise those factors to a reasonable degree are preferable to orders which do not achieve the same objectives.

6. The submissions before me and the manner in which the proceedings were conducted did not follow the usual approach of analysing each matter that is flag-posted in ss 60CC(2) and (3).

7. In my view, the approach adopted by counsel was both practical and appropriate given the limited time that was available, the amount of detailed material in the affidavits which needed to be absorbed and considered, and the time that I provided to the parties in the further attempt for them to negotiate an outcome by themselves which would favour their children rather than have a court imposed solution.

8. Consequently, the emphasis in the submissions was centred upon the timetable for one or more of the children to spend time with or live with one parent or the other and the effect of each party’s proposals in that regard.

9. Consequently, for the reasons that I have given, I will make the orders as sought by the wife in the document to which I have referred with an appropriate amendment.  That amendment will relate to the first occasion for the commencement of time to be spent with one child or the other with either of the parties in accordance with the schedule or program for periods of time set out in the relevant document.

10. Before making the orders, I note that the parties will proceed to be engaged in urgent reportable counselling with Mr L, Senior Family Consultant, Child Dispute Services at the Sydney Registry at 10.00am Monday, 9 May 2011.

11. I have made enquiries and suggested such counselling take place in the interests of the three children who quite clearly have significant emotional impact as a result of continuing parental conflict, and in particular so far as B is concerned.  The children are still young.  The eldest two are aged 10.  The youngest child is aged four.

12. Hopefully, the parties will be able to put aside, if only temporarily, their own bitterness and disputes for the purpose of concentrating upon what is in the children’s best interest to minimise the pressure upon them so that relationships with the parents can be restored to the level which previously existed without the distraction and adverse effect on their emotional development that the continuing parental conflict will almost certainly create.

13. I had indicated to counsel that there was a possibility of the proceedings being listed before me on 26 May 2011.  Upon further enquiries that is currently not possible due to my list commitments.  However, I note that one of the orders sought by consent will enable the parties to restore the matter to the list upon application being made on short notice.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 6 May 2011.

Associate: 

Date:  18 May 2011