PEMBROKE & PEMBROKE

[2020] FCCA 3433

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEMBROKE & PEMBROKE [2020] FCCA 3433

Catchwords:
FAMILY LAW – Interim parenting

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), (3)

Cases cited:

Goode & Goode (2006) FLC 93-286

Eaby & Speelman (2015) FLC 93-654

SS & AH [2010] FamCAFC 13

Applicant: MS PEMBROKE

Respondent: MR PEMBROKE

File Number: HBC 872 of 2020

Judgment of: Judge McGuire

Hearing date: 11 December 2020

Date of Last Submission: 11 December 2020

Delivered at: Burnie

Delivered on: 18 December 2020

REPRESENTATION

Counsel for the Applicant: Mr M Trezise

Solicitors for the Applicant: Leonard Fernandez

Counsel for the Respondent: Ms F Di Giovanni

Solicitors for the Respondent: Wallace Wilkinson & Webster

ORDERS

1. That pursuant to Section 68L(2) of the Family Law Act 1975 the children X born in 2005, Y born in 2007 and Z born in 2008 be independently represented AND IT IS REQUESTED that the Legal Aid Commission of Tasmania arrange such independent representation.

2. That forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer (“the ICL”) file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the parties or their solicitors must provide to the independent children’s lawyer copies of all relevant documents relied upon.

4. That upon their appointment, and after filing of an Notice of Address for Service, the Independent Children’s Lawyer (ICL) may INSPECT and COPY all documents previously produced to the court in response to a subpoena issued in the proceedings and released to the parties. The ICL may provide a copy of any such material to any expert, person or agency who is preparing a report or treating the parties or children, for the purposes of assisting them to do so, whether by court order or the agreement of the parties EXCEPT for material produced under subpoena to the Department of Health and Human Services.

Interim Orders:

1. That the children X born in 2005, Y born in 2007 and Z born in 2008 live with the mother.

2. That the children spend time with the father as follows:

   (a)For a period of two calendar months from the date of these Orders each alternate weekend on both Saturdays and Sundays between 9.00 a.m. and 7.00 p.m.;

   (b)Thereafter each alternate weekend between Friday at 5.00 p.m. and Sunday at 7.00 p.m.;

   (c)In any event, each alternate Wednesday between 5.30 p.m. and 8.30 p.m.; and

   (d)Such other times or variations of the above as agreed between the parents or with consultation and agreement with the children from time to time.

3. That the Applications are listed for any submissions from the Independent Children’s Lawyer and trial directions in the Federal Circuit Court at Hobart on Friday 5 March 2021 at 9.30 a.m.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 872 of 2020

MS PEMBROKE

Applicant

And

MR PEMBROKE

Respondent

REASONS FOR JUDGMENT

Applications

1. These are interim parenting proceedings in respect of the parties’ three children X born in 2005 (aged 15 years), Y born in 2007 (aged 13 years) and Z born in 2008 (aged 12 years).

2. The issue is a discrete one of time for the three children with the father in the interim.  Each of the parents is agreed that the children will spend time with the father each second Wednesday between 5.30 p.m. - 8.30 p.m.  The issue is when weekend time progresses to overnight time?  The father wants certainty in such progression with overnight time beginning after two months of day time contact each alternative weekend.

3. The mother is more cautious and conservative and does not want to commit to overnight times until there is a further assessment of the children's views and consequent recommendations.

Background

1. The father is 49 years of age and employed as a Managing Director of Employer B.

2. The mother is 44 years of age and engaged in home duties.

3. The parents commenced cohabitation in 2002, married in 2006, and separated on 22 February 2019.

4. The children remain living with the mother in the former matrimonial home.

The Evidence

1. Both parties have filed affidavits.

2. The husband also relies on affidavit of Dr C sworn 18 November 2020.  He deposes that he has carried out a liver function test and CDT test on the husband in response to the wife's assertions of excessive alcohol use and concludes at [7] ‘Mr Pembroke is highly unlikely to be consuming alcohol at hazardous levels'.

3. The husband also relies on affidavit of Dr D who is a clinical phycologist and has been conducting family therapy in respect of this family.  Dr D's report is annexed to her affidavit affirmed 25 November 2020.  It seems that the wife and the children have elected to discontinue the family therapy.  At [5] of the report appears the following:

   As result the children have potentially been exposed to too much information which should have been kept separate from them, and they have been drawn into taking sides, primarily sharing their mother's opinions and conclusions about past and present behaviours.  This has likely created additional discomfort for the kids regarding contact visits with Mr Pembroke due to their awareness of their mother's perceptions about potential safety concerns, as well as her disapproval, anger or anxiety when they spend time with him.  Inappropriate comments were made by Ms Pembroke about Mr Pembroke in front of the children in my presence, and she was clearly encouraging the children to speak up about their hurts rather than always supporting them to build or maintain appropriate relationships with their father.  Ms Pembroke was unable to encourage Y or X to continue participating in family therapy, and was the one who ultimately chose to end the process. 

4. In respect of the oldest child and at page 19 Dr D opines:

   X showed initial willingness to explore his feelings about his father's behaviour through participation in family therapy and working towards sharing these reactions with his father.  However, his perspective was strongly aligned with that of his mother, with little awareness of any of his father's potentially redeeming features.  Black and white thinking is not unusual in adolescence, nor is a reluctance to prioritise time with family, especially if he feels it interferes with his independence or takes time from his own interests.  It is likely his perspectives about his father will soften somewhat over time, however it is also likely that he is privy to more information about his parents relationship than is ideal for him.

5. And at [7] on page 20 Dr D says:

   The continuity of the children's relationship with their father has been disrupted since separation, and the children have expressed distress and confusion regarding some aspects of their father's behaviour both during the relationship and since separation.  I would therefore like to suggest that contact arrangements should be step-wise, gradually increasing in length and frequency to allow the children time and opportunity to progressively build their relationship with their father.

   …

   A very important consideration is the process for organising contact arrangements as, currently, times tend to be unpredictable, and require interactions between Mr Pembroke and Ms Pembroke which are not always harmonious.  The negativity between the parents, and the implied need for Ms Pembroke to approve any contact, tends to suggest the contact is a low priority, conditional, and unusual.  Although contact has continued in an ad hoc way, more regularly for the girls and for X, there is likely to be negative associations with contact arrangements for the whole family.  It would be better if contact visits followed a predictable pattern, minimising interaction between the parents, and if conflicting opportunities arose for the children during planned contact time, that consideration be given to Mr Pembroke providing transport and any other necessary arrangements so that he is still involved in a normal parenting capacity.

   Finally, given X's age and more complex attitude towards his father, individualised arrangements which incorporate more flexibility to cater to his social life, but include some regular one-to-one time, might be more appropriate.  An initial contact arrangement would perhaps be for all the children to spend time with their father an alternative weekends, gradually extending over a few months to three nights from Friday after school to Monday morning.  In addition, time for individual interactions with each of the kids could occur for a few hours during an evening or two in the alternate week, built around ordinary afternoon parent-child interactions or requested activities.  Progression to greater time beyond this will depend on the practicalities of facilitating the children's normal school and extra-curricular activities, and the level of comfort and normality which has been achieved by that stage.

6. The Court also has the benefit of a s.11F report prepared by family consultant E after interviews on 8 December 2020 and including the children.

7. The family consultant noted mutual reports from the parents of verbal altercation.  The wife alleged financial abuse within the relationship and both parents alleged forms of physical abuse.

8. Both parents reported concerns about the children's ongoing mental stability, and emotional safety in regards to emotionally processing the separation with both parents accepting that there had been arguments to which the children had been exposed.

9. The wife disclosed that she had been obtaining psychological assistance to help her manage her emotions following the separation.

10. The family consultant noted no current functional communication or co-parenting arrangement between the parents.

11. X presented as supportive and positive in respect of his mother but negative in relation to the father.

12. Both Y and Z presented similarly supportive and positive of their mother and hesitant and negative in respect of the father.

13. At [59] of the report the family consultant opines:

    It is possible that the children have formed an unconscious alliance with Ms Pembroke throughout their parent’s dispute. It appears likely that the children have had exposure to denigrating comments about Mr Pembroke from Ms Pembroke, as X uses a narrative inclusive of Ms Pembroke’s feelings, Y uses the phrase “expression of love” which is not a consistent phrase of children of her age, and X has seemingly had access to bank statements regarding Mr Pembroke’s movements. It would benefit the children to be protected from further information surrounding their parent’s dispute, as it may result in relationship breakdowns, increased risk of parentification, and can create emotional and psychological destabilisation.

    …

    The children appear to hold some anger towards Mr Pembroke, which could possibly stem from their lack of contact with him, prior and following to the parties separation. They appear to have expectations of how they wish their contact to look like, which is inclusive of their father’s sobriety, focusing on their activities, and not sharing his attention with others. It is possible that a slow progression of increased time with Mr Pembroke will provide an increased sense of security and safety for the children in his care, and ongoing, regular contact with Mr Pembroke would likely support their emotional and developmental needs.

    The children appear to be wary of spending overnights with Mr Pembroke, which could possibly stem from having limited experience in his care, as Ms Pembroke has been the primary carer throughout their lives, and exposure to denigrating comments about him. It would benefit the children to spend an increased amount of day contact with Mr Pembroke before extending contact to overnights. This would allow time and space for the children to adapt to a changing schedule, and build trust in their relationship with Mr Pembroke again.

14. The family consultant recommends the appointment of an Independent Children's Lawyer and at [69]:

    In the interim, it may benefit the children to have contact with Mr Pembroke each alternate weekend, for day periods only, for probably 2 months before building to overnight visits.

Relevant Law

1. The orders that I am asked to make are parenting orders and, as such, I am to have the best interests of X, Y and Z as my paramount consideration pursuant to s.60CA of the Family Law Act 1975 (‘the Act’). In determining those best interests I am to reference the parents' proposals and the probative evidence to the numerous considerations set out in s.60CC(2) and (3) of the Act against a background of the objects and principles of the legislation at s.60B.

2. An interim hearing is a completely different creature to a final trial. Commonly, the applications are brought on quickly and without the benefit of full forensic investigation and the assistance of the various tools that these Courts can provide for parents. Parties provide affidavits, making assertions of fact and allegations which are often met with blanket denials.  Consequently, it is generally acknowledged that the process is a difficult one for judges at interim hearings in making findings of disputed fact and credit where the hearing is conducted by way of submissions and without the benefit of testing the material by cross-examination. Nevertheless, and despite these limitations, the Court remains obliged to follow a course of statutory and intellectual consideration observed in the well-known decision of the Full Court in Goode & Goode[1] where the Court noted at [68]:

   … The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is 'significantly curtailed'.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   [1] (2006) FLC 93-286

3. However, and as noted by the Full Court in Eaby & Speelman[2] in relation to the difficulties of Courts making findings of fact and credit at interim hearings:

   … That does not mean that merely because the facts are in dispute, the evidence on the topic must be disregarded, and the case determined by reference to the agreed facts.

   [2] (2015) FLC 93-654

4. Similarly, the majority of the Full Court in SS v AH[3] observed:

   … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put into issue.

   [3] [2010] Fam CAFC 13 @ [100]

5. These, therefore, are some of the difficulties confronting Courts at interim hearings where the issues are often complex and where the various assertions of fact are denied and untested and where the full forensic preparation and corroborative evidence is not always available but where the Court must consider, weigh and balance the evidence ultimately towards the best interests of the children.

Consideration

1. These children are not young.  They are of ages where they would ordinarily be entitled to have their views and preferences given significant weight.  The force of the evidence is that they are hesitant and reluctant in their relationship with their father.  It is clear that they are each aligned with their mother which may be a factor simply of their mother having been a stay at home parent whilst their father pursued his career.  Similarly, the evidence suggests that the mother is struggling with a separation which may not have been of her own initiative and where the children are undoubtedly aware of their mother’s emotional responses to that separation and also of her criticisms of the father. Consequently, it is highly likely that the children are imbued with and involved in their parents’ residual animosities and their views of and preferences as to their relationship with their father should be seen accordingly. 

2. The question of making orders which sit contrary to children's preferences is a relevant and difficult one.  To make such orders does, of course, present the danger that the children will further resent the father and thereby give more permanent damage to that relationship.

3. Balancing the consideration of the Court giving weight to the children's preferences is the primary consideration of making orders which benefit children having relationships with each of their parents.  There are occasions where the certainty of a Court order can assist the children in being relieved of they themselves being the 'decision-makers' thereby compromising their loyalties and relationships with each of their parent.

4. Whilst each of the parties make assertions to the family consultant of various forms of family violence.  Those issues do not come to the fore in this interim consideration.

5. The mother and the children reference the father's use and possible abuse of alcohol as an issue as to his capacity.  Nevertheless, the available evidence does not allow me to make such findings accordingly.

6. In this matter I am able to find that the children are negatively inclined to their father.  Similarly, however, I can find that they are aligned with their mother and it remains for there to be a full forensic testing and understanding of the veracity of their views.

7. The evidence persuades me that the mother herself is personally negative and critical of the father and that she has most likely imbued the children with her own views and emotions.

8. The mother effectively asks for a continuation of the children's day-time with the father and a further 'review' as to when the relationship should progress to overnight.  Frankly, there are few if any overt or objective limitations to these children spending overnights with their father.  The mother’s cautious and conservative approach is most likely related primarily to her own feelings.  As such, any 'review' in two months or at any time is unlikely to have progressed the matter in her mind.

9. In circumstances where these children have been unhealthily involved in their parents’ separation, I am of the view that their best interests require some certainty in their relationship with their father and a release for them from the decision-making process where such is, in this case, more properly the domain of the Court.  As such, I see no reason why, in accordance with the opinions of the family consultant and Dr D, the children's time with the father should not progress to overnight time with certainty.  The period of two months is suggested and appears to me to be a reasonable time to allow both the children and the mother to deal with this expectation.

10. I agree that this is a matter moving forward which would benefit from the assistance of an Independent Children's Lawyer.

11. I will, therefore, make orders generally in the terms of the father's application. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate: 

Date: 18 December 2020