Palantine and Palantine (No. 2)

[2010] FamCA 595

FAMILY COURT OF AUSTRALIA

PALANTINE & PALANTINE (NO. 2) [2010] FamCA 595

FAMILY LAW – CHILDREN – Interim orders

Family Law Act 1975 (Cth) ss 60CA, 61DA(1), 61DA(3), 60CC(2), 60CC(3), s 65DAA

Goode & Goode (2006) FLC ¶93-286
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Palantine

RESPONDENT: Ms Palantine

INTERVENOR: Chief Executive, Department of Disability, Housing and Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms L. Strong, Strong Law Pty. Ltd.

FILE NUMBER: CAC 2273 of 2007

DATE DELIVERED: 22 June 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 22 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Routh

SOLICITOR FOR THE APPLICANT: Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT: Ms B.Smithies

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission, ACT

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms L. Strong

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Strong Law Pty. Ltd.

COUNSEL FOR THE CHIEF

EXECUTIVE:

Mr A. Tandy

Orders

IT IS ORDERED THAT:

1. By way of interim order only E, born … June 2003 and C, born … December 2000 will spend time with their father on the following days and the following times:

   a.on 26 June 2010 between the hours of 2.00pm and 4.00pm;

   b.on [E’s birthday] June 2010 between the hours of 2.00pm and 4.00pm; and

   c.on 10 July 2010 between the hours of noon and 5.00pm.

2. In each case the children will be collected by their father from McDonald’s family restaurant at N in the Australian Capital Territory and returned to that place. 

IT IS NOTED THAT:

1. On the last occasion the mother took L with her to collect the children.  I make no order deliberately precluding that from occurring in the future.  I rely upon the mother’s judgment and good sense as to whether this is an appropriate thing to do in the circumstances. 

2. Further to that, I renew my invitation to Ms I, in terms of her time that she has spent with the children and will spend with the children during this period, that if she forms the opinion that it would be contrary to their best interests for them to spend further time with their father, then she should communicate this to the Independent Children’s Lawyer.  The matter will then be re-listed before me or another Judicial Officer in my absence as soon as possible.

3. Furthermore, the matter is otherwise adjourned to 10.00am on 16 July 2010 for further determination on that day. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2273 of 2007

MR PALANTINE

Applicant

And

MS PALANTINE

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before me relate to a further interim application on behalf of the children’s father for time to be spent with them pending, in effect, a report from Ms I about what would be the appropriate way of developing a meaningful relationship between the children and their father.  In this regard, it is accepted by both parents that L will not be a participant in any time that might be spent between any of the children and their father at this point.

2. The situation was that, after a period when the children had not spent time with their father, on 26 May 2010 I made an order which provided there should be some limited time for C and E to spend with their father.  This was a period from after school until 6.00 pm on a specific day, which was a day on which the children had spent time with Ms I, who is the preparer of the report pending before this Court.  The time that the children spent with their father has been reported upon by both of the parties.  In an affidavit, the father describes (in relatively glowing terms) the nature of the time that occurred and, in particular, he asserts that, from his perspective at least, the visit had been a matter of great success and that the children enjoyed their time with him.

3. The affidavit filed on behalf of the children’s mother is not so glowing.  It does not have distinctly negative elements to it as such, although there are a number of reports about what the children said to her.  If indeed the children felt obliged to make those reports that would be disturbing.  In particular, it is crucial, it seems to me, at this point that if the children are spending time with their father that it must be time that they enjoy.  In time the children spend with their father they should not feel they are under any sort of inquisition or questioning, or under some sort of probation in so far as their father is concerned.

4. It is impossible in the course of these proceedings to reach any satisfactory conclusion about whether the children’s impression of the time they spent with their father, as reported to their mother, is accurate or whether their father’s (completely different) impression of the same time is accurate.  In making any order about the children, I am obliged to take account of the assistance offered to judges in this Court by the authorities such as Goode & Goode[1] and more recently by Marvel & Marvel (No. 2)[2] about interim applications.

   [1] Goode & Goode (2006) FLC ¶93-286.

   [2] Marvel & Marvel (No. 2) [2010] FamCAFC 101.

5. In this regard, the Full Court has indicated that the pathway nominated under the Family Law Act 1975 (Cth) in Part VII is to be followed even in interim arrangements. In this regard, the way in which the Court must proceed is that any order that to be made must take account of the paramountcy of the best interests of the children.[3] The Court must also take account of the fact that the best interests of the children are to be determined in accordance with the provisions of section 60CC of the Family Law Act1975 (Cth) in the light of the Objects and Principles of Part VII of the Act as set out in s 60B.

   [3] Family Law Act 1975 (Cth) s 60CA.

6. In determining the best interests of the children, I am obliged to take account of the primary considerations which to some extent are as Brown J, (as she then was), has remarked in the past as being “twin pillars”.[4]  One is the benefit to the children of having a meaningful relationship with both of their parents[5] and, the other, the need to protect the children from physical or psychological harm or from being subjected to, or exposed to abuse, neglect, or family violence.[6]  It is not suggested that if the children were to spend time with their father in this interim arrangement they would do so in a way that they would be likely to be exposed to any violence from their father as such.

   [4] Mazorski & Albright [2007] FamCA 520, [3].

   [5] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [6] Family Law Act 1975 (Cth) s 60CC(2)(b).

7. However, of more concern, as identified and articulated by the Independent Children’s Lawyer (and to some extent supported by Mr Tandy on behalf of the Chief Executive), is the issue of what psychological damage the children may suffer, not necessarily from the time they spend with their father, but from when they return to their brother, L, and the difficulties that may pose for their relationship, not only with their brother and each other, but with their mother.

8. In these circumstances, those are factors which, as primary considerations, would militate against the children spending any time with their father.  At the same time, it is asserted by Mr Routh on behalf of the father that there is a genuine need for the children to be aware of the fact that their father has not abandoned them and that there should be some time with him to preserve the relationship that has begun.  He has submitted that the time that the children spent with their father may not have been ideal but it was progress and that further “progress” should be undertaken.

9. The other factors that are to be taken into account in determining the children’s best interests are set out in s 60CC(3). These include the views of the children. At this stage, these views are equivocal given the reports that they have made to their mother and the expressions of their views to their father. I am unable at this point to put any particular weight upon the views of the children about the time they might or might not spend with their father.

10. I do not accept that the expression of the children’s views so far as reported in the affidavits of the parties as necessarily indicative of their real views or, indeed, of their genuine concerns or what they would like to do – to put it at its most fundamental.  The relationship between the children and their father appears not to have been seriously damaged, (if the father’s affidavit is to be believed), by the separation from him (to date) and that is also a factor which relates to the question of what benefit they would derive from spending time with him until such time as the Court has an opportunity for more information about the situation from Ms I.

11. The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship is to some extent a loaded question.  It is not enough to say simply that a parent must necessarily subscribe to that proposition where there are other countervailing matters which would suggest that that is not a good idea or not necessarily in the children’s best interests.  However, in this case, the mother of the children has stipulated that she believes that it is important the children should have a continuing relationship with their father and she has indicated that she believes that such an approach should be gradual.

12. Ms Smithies on behalf of the mother has suggested that the children should not spend time with the father should until after we have the benefit of Ms I’s opinion.  The mother, (when a proposition was put about time for the children to spend with their father,) in fact, volunteered additional time.  This is a factor very much in her favour and certainly contradictory of a proposition advanced by the father that there is any discouragement of the children from spending time with him.

13. There are difficulties associated with the time the children spend with their father, brought about by the fact that their father does not live in Canberra. This means that short times are necessarily more taxing on him than would be the case if he were living in this town.  However, the issue is not, in these circumstances, whether or not there is a difficulty for the father in spending time with the children, but rather with the children spending time with their father.  It would be a strange perversion of the terms of that section of the Act if it were to be construed on the basis because it was inconvenient for the father, (but not necessarily in the children’s best interests), that they should spend less time with him. 

14. I am satisfied from the evidence before me that, for a limited time at least, there is no reason why I should not believe that the children would be all right with their father.  I use those words in their most neutral sense and I use it really to negate the suggestion that the father does not have the capacity to adequately look after the children within the context of the arrangements that are being proposed. 

15. There are other matters I can properly take into account, but none which bears upon the decisions I ought to make today.

16. Having taken account of those factors, I then look to the matters I am obliged to take into account under the Act.  I look to s 61DA in relation to any parenting order that is to be made, I am to be aware that the Act requires that I must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility for the child.  That presumption does not apply where there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence and further the presumption may be rebutted by evidence that satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

17. Moreover, s 61DA(3) provides that when I am making an interim order, (which this is), the presumption applies unless the court considers it would not be appropriate in the circumstances to be applied when making this order.  It is clear to me that it is not appropriate the presumption should be applied in this matter.  It is not a factor which is relevant to the sort of time that is concerned with the children and in any event even if it were otherwise appropriate, in these limited circumstances, it would not be appropriate.  This is because of the complicated relationships generated by L’s antipathy to his father, the interrelationship with L with his siblings, and the effect that has upon the way in which each of the parents operates.

18. In such circumstances, when the presumption does not apply, s 65DAA under the Act does not apply.  I am not obliged to consider in those circumstances the question of whether the children should spend either equal time or substantial and significant time with their father.  This would not preclude me from making an order if were otherwise appropriate, but it is not. 

19. I am surprised to some extent that in circumstances where I have a recommendation from the Independent Children’s Lawyer there should be a postponement of any further time with the children that the children’s father has persisted in seeking additional time over that which had been originally suggested.

20. Notwithstanding the obvious attraction perhaps for a judicial officer in taking the course of least resistance and applying one of the primary considerations under the Act and ensuring that above all other things the safety of the children is preserved, I take account of the fact that this represents on the part of the father his enthusiastic pursuit of what he regards as the best interests of the children.  Although he does (at least in some context) give the impression that he is as much concerned about his interests as he is about the children’s.  However, that is a matter for consideration on another day.

21. In this matter, I consider that it is appropriate there should be some time for the children with their father and in coming to that conclusion I draw upon the fact that notwithstanding my invitation, Ms I has not suggested that the children should spend no time with their father pending her report.  This is expected in the middle of July 2010.  The times that the father has sought are, in the circumstances of this matter, unreasonable for the children, although I can understand why he would want them for himself.

22. In my opinion, the appropriate times - and I will outline them before I make the formal order - are that he should spend between the hours of 2.00 pm and 4.00 pm on 26 June 2010 with the children; that he should spend the time on … June 2010, which the mother offered, which is E’s birthday, between the hours of 2.00 pm and 4.00 pm; and that on 10 July 2010 he should see the children between the hours of noon and 5.00 pm.  I consider that, in the circumstances of this matter, fulfils the criteria that I am obliged to apply under the Act. 

23. I note that on the last occasion, the mother took L with her to collect the children.  I make no order deliberately precluding that from occurring in the future and I rely upon the mother’s judgment and good sense as to whether this is an appropriate thing to do in the circumstances. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Faulks.

Senior Legal Associate: 

Date:  16 July 2010