PERRETT & PERRETT

[2018] FamCA 347

FAMILY COURT OF AUSTRALIA

PERRETT & PERRETT [2018] FamCA 347

FAMILY LAW – CHILDREN – PARENTING – final consent orders after trial of five days – equal time regime ordered.

Family Law Act 1975
APPLICANT:	Mr Perrett

RESPONDENT: Ms Perrett

FILE NUMBER: ADC 499 of 2017

DATE DELIVERED: 13 April 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Baumann J

HEARING DATE: 9 to 13 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lewis

SOLICITOR FOR THE RESPONDENT: Adelta Legal

INDEPENDENT CHILDREN’S LAWYER Ms J Schirripa,
Legal Services Commission of South Australia

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Anderson

Orders

1. That all previous parenting orders be discharged.

2. That the parents shall have equal shared parental responsibility for the children, B born … 2012 and C born … 2014 (“the children”).

3. That the children shall live with each of the parents as follows:

   (a)Up and until term one (1) 2021:

   (i)With the mother from 12:30 pm on Saturday, 14 April 2018 until 5:00 pm on Monday 16 April 2018;

   (ii)With the father from the conclusion of kindergarten/school on Monday (or 5:00 pm if a non-kindergarten/school day) until the conclusion of kindergarten or school on Wednesday (or 5:00 pm if a non-kindergarten/school day) commencing Wednesday, 16 April 2018 and on the same times and days in each alternate week thereafter;

   (iii)With the mother from the conclusion of kindergarten or school on Wednesday (or 5:00 pm if a non-kindergarten/school day) until the conclusion of kindergarten or school on Friday (or 5:00 pm if a non-kindergarten/school day) commencing 18 April 2018 and on the same days and times each alternate week thereafter;

   (iv)With the father from the conclusion of kindergarten or school on Friday (or 5:00 pm if a non-kindergarten/school day) until the conclusion of kindergarten or school on Wednesday (or 5:00 pm if a non-kindergarten/school day) and on the same days and times each alternate week thereafter to commence on 20 April 2018;

   (v)With the mother from the conclusion of kindergarten or school on Wednesday (or 5:00 pm if a non-kindergarten/school day) until the conclusion of school on Monday (or 5:00 pm if a non-kindergarten/school day) commencing on 25 April 2018 and on the same days and times each alternate week thereafter; and

   (vi)With each parent at such extended times during school holidays as the parties may agree.

   (b)As and from term one (1) 2021:

   (i)With the father from the conclusion of school on Friday (or 5:00 pm if a non-school day) until the conclusion of school the following Friday (or 5:00 pm if a non-school day) commencing on the first Friday that the father is due to spend time with the children pursuant to Order 3(a)(iv) hereof and each alternate week thereafter on the same dates and times; and

   (ii)With the mother at all other times.

4. That the children live with the parents as follows:

   (a)For Christmas Day:

   (i)for 2018 with the father from 9:00 am on 20 December 2018 until 12:00 pm on 25 December 2018 provided the children are with the mother from 12:00 pm on 25 December 2018 until 6:00 pm on 30 December 2018; and

   (ii)with the mother from 9:00 am on 21 December 2019 to 9:00 am on 28 December 2019 and during the same period in each alternate year thereafter provided the children shall live with the father from 9:00 am on 21 December 2020 to 9:00 am on 28 December 2020 and during the same period in each alternate year thereafter.

   (b)With the mother from the conclusion of school on Holy Thursday or 3:30 pm if a non-school day to the commencement of school on Easter Tuesday or 9:00 am if a non-school day in 2019 and during the same period in each alternate year thereafter provided the children shall live with the father from the conclusion of school on Holy Thursday or 3:30 pm if a non-school day to the commencement of school on Easter Tuesday or 9:00 am if a non-school day in 2020 and during the same period in each alternate year thereafter;

   (c)With the mother from 10:00 am until 5:00 pm on Mother’s Day provided the children shall live with the father from 10:00 am until 5:00 pm on Father’s Day each year;

   (d)For both children’s birthdays and L’s birthday and the birthdays of the parents the children shall live with the parent who they are not otherwise living with in accordance with these Orders at such times as may be agreed between the parents in writing and in default of agreement from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm on that day; and

   (e)       At such further or other times as may be agreed as reflected in writing.

Handovers

1. That handovers that do not occur at kindergarten/school shall occur at the D Town.

Telephone communication

1. That the parents do all things necessary to facilitate the other communicating with the children by telephone or Skype or Facetime between 5:30 pm and 6:30 pm on each Wednesday the children are not otherwise in their care.

2. That the parents do all things necessary to facilitate the other parent communicating with the children by telephone or Skype or Facetime between 5:30 pm and 6:30 pm on each Wednesday of all school holiday periods and each Christmas Day at 9:00 am.

Education

1. That the children attend the M School until the conclusion of their primary school education unless otherwise agreed.

2. That the child C attend the N Centre (“kindergarten”) on such days and at such times as may be deemed appropriate by the parents and for two (2) days per week for kindergarten commencing in term three (3) of 2018 on such days as may be agreed between the parents and in default of agreement on Monday and Wednesday of each week.

Extra-curricular activities

1. That the parents be at liberty to attend and facilitate the children’s attendance at all school and other educational functions to which parents are usually invited.

Injunctions

1. That the parents be restrained and injunctions are hereby granted restraining them from:

   (a)discussing matters arising from or in relation to these proceedings with the children or in their presence or allowing any other person to do so;

   (b)denigrating or criticising the other parent to the children or in the presence of the children or allowing any other person to do so;

   (c)discussing allegations as to their respective mental health with any third party and other issues relating to these proceedings;

   (d)disseminating any document filed in these proceedings including medical reports to any third party; or

   (e)providing any third party with information as to the contents of any report (inclusive of medical reports).

Medical

1. That the parents:

   (a)inform each other forthwith of any medical appointment the children have attended and the reason for same and do give each other permission to enable the other of them to discuss the reason for the consultation and any treatment in relation thereto with the treating medical practitioner; and

   (b)forthwith notify the other of any serious accident or injury suffered by the children and obtain the consent of the other before any major medical procedure is undertaken.

International travel and passports

1. That the parents forthwith authorise and release the children’s passports from the Adelaide Registry of the Federal Circuit Court of Australia, with the father to retain B’s passport and the mother to retain C’s passport.

2. That the parents be at liberty to travel overseas with the children on one (1) occasion each calendar year on the condition that:

   (a)the parents agree the duration of such travel and make up time is provided to the non-travelling parent;

   (b)they provide the other with no less than sixty (60) days prior notice of intended departure date;

   (c)not less than seven (7) days prior to their departure date the parents provide each other with a full itinerary and any emergency contact details of the children whilst they are travelling;

   (d)during any such travel the parents facilitate the children communicating with the other parent by email or text message every third day;

   (e)during such travel the parents facilitate the children telephoning the other on at least one (1) occasion per week;

   (f)any overseas travel in accordance with this Order be exclusive of any school or extra-curricular related overseas travel and the parties be at liberty to attend such travel with the children; and

   (g)travel does not take place on any special occasion time unless agreed in writing by the non-travelling parent.

Communication

1. That the parents use a communication book to provide to each other in relation to the care, welfare and development of the children, with such book to be exchanged at handovers in relation to the children and the parents are also at liberty to communicate via email.

2. That the parents be at liberty to receive all communications usually provided to parents from the children’s schools and kindergarten, including but not limited to newsletters, school reports and school notices.

3. That the parents be at liberty to attend all school functions to which parents are usually invited.

4. That the parents do all things necessary to facilitate the children’s attendance at all extra-curricular activities in which they are enrolled, school events and social events to which the children are invited.

5. That the parents ensure that they provide each other with their current residential address and current telephone contact number in writing and advise the other of any change in respect of their address and telephone number within forty eight (48) hours of such change.

THE COURT ORDERS ON A FINAL BASIS:

1. That the Independent Children’s Lawyer be discharged.

2. That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perrett & Perrett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ADC 499 of 2017

Mr Perrett

Applicant

And

Ms Perrett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

BACKGROUND

1. This matter has had a very unusual pathway.  In a very short period of time, an application that was brought before the Federal Circuit Court of Australia as recently as January 2017 has been the subject of a number of court appearances; a family report prepared from interviews on 21 June 2017; no less than three psychiatric examinations of the mother; numerous attendances at doctors and numerous recorded notifications by the parties and/or others to the Department and engagement by the Police.  In addition to those matters, the parties’ position in this matter has significantly changed during the course of the matter.

2. The father began the application seeking the children reside with him.  The mother opposed that, the children then being in her care.  Orders were made by a very experienced judicial officer in the Federal Circuit Court of Australia effectively, in some ways, preserving the status quo but allowing the father to spend time with the children when he had had no time for some eight weeks.  Then as a result of the production of a report by Psychiatrist Dr G, that, it would seem, caused some concerns to that same experienced judicial officer, a further psychiatric report of the mother was either directed or in any way strongly indicated.

3. That report by Psychiatrist Dr F culminated in a report dated 21 June 2017, the interviews of the mother, we now know, having taking place on the same day and in the afternoon of the day on which family report or assessment interviews were undertaken by Ms O.  Those professionals worked very quickly and both gave evidence and both when under cross examination identified they would have liked to have had more time to consider past matters and maybe even to consider matters that were then put to them in cross examination.

4. Be that as it may, a report issued from Dr F which on its face made a very confident assessment and diagnosis of the mother suffering a serious psychotic mental illness.  That combined with concerns of the father about the mother caused the Court, no doubt, heavy with the responsibility of considering how to best protect the children with these uncertainties, to make what was a very significant order which changed the residence of these two young children, B who is now six and C who’s to be four in June, from the primary care of the mother to the primary care of the further and further to require the mother’s time with the children to be supervised.

5. The mother, it would seem, immediately undertook the sort of recommended consultations referred to by Dr F and engaged with a further psychiatrist within a month, Dr E, who saw her for three times before issuing a report in October 2017 challenged the diagnosis made cross-sectionally by Dr F.  She also engaged in therapeutic counselling with a psychologist, not for the first time.  When the matter came before Austin J in December, his Honour in the Reasons he published amongst other matters, canvassed the fact that even on the untested evidence he could not be satisfied that the mother was a risk to the children and removed the supervisory conditions, but would not disturb the primary care arrangements, noting that the matter was to be listed for trial (Berman J having been recused from the matter for reasons known to the parties no doubt) before a visiting Judge in April.

6. The position of the father as late as the end of January 2018 in his amended Application was that he should have sole parental responsibility, that the children should live with him and that the mother’s time should be supervised effectively indefinitely.  The mother’s position at least from the time the matter was before Austin J on her Application in a Case had moved to a position where the children live with her but that the father have substantial unsupervised time.  There is nothing in the material to suggest that the mother even at that time, in my view, had definitively asserted, as she did ultimately in paragraph 208 of her trial Affidavit, that she accepted that the children had not been the subject of sexual abuse by the father.

7. It is suggested that it could have been inferred that was the case, but there is no evidence that that was ever firmly and unequivocally put on the table, so to speak.  As a result, the father still had that, in a sense, hanging over his head.  The mother had hanging over her head the disputed position of three well-known local psychiatrists, all of whom I have seen in cross examination:  Dr G, Dr F and Dr E.  For the benefit of the parties, the three psychiatrists got together for a conference.  Sadly, the only thing the three highly qualified psychiatrists could agree upon is that we should get an opinion from a fourth psychiatrist.

8. I have heard five days of evidence.  It is difficult to understand how this case reached the levels it did only to subside to the result that it has now achieved.  Much of it might be a comment on the system of adversarial family law litigation.  Much of it might be a comment on the imposition of forensic well-intended expert opinion into what has been, in my view, on all the evidence in the end result nothing more than two very different parents parenting very differently and adjusting to changes in their relationship circumstances.

9. The likelihood at the start of this trial of this Court being satisfied that it would be in the best interests of the children and reasonably practicable, as the law compels the test to be applied, that these parties would be able to make an equal time arrangement work, was next to nil.  During the course of five days of testimony, the parties have seen all the evidence unfold.  They have had their characters; their past actions; their intentions and their feelings explored by very effective cross examination by Mr Bowler on behalf of the father, Ms Lewis on behalf of the mother and Mr Anderson on behalf of the Independent Children’s Lawyer.  Although those Counsel were not required as a result of the consent orders being offered to the Court now to make any submissions, I think it is fair to say that none of those Counsel could have done more to promote the best interests of the children as their clients asserted them to be.

10. I am now offered final orders by consent which all Counsel tell me the parties agree are in the best interests of the children.  The first time (apart from the father raising this at an earlier stage in the proceedings) that any professional person raised this proposal seems to be today by Ms O.  I make it very clear to the parents that the Court would not be minded to make this order if it felt it was just some form of happy compromise that these parents were desirous of getting.  This is not to be a win-win parental situation.  It is only a situation that is optimal for these children if the mother and the father learn something from this trial experience.  I would retain some doubts, at some levels, whether they will be able to do that having seen them in the witness box.

11. The father was clearly of the view that when they moved from P Town to D Town his role in the family would be different.  He wanted it to be different.  He was going to be available.  He craved to be a father in a very active way, however, some of his criticisms of the mother, in my view, were misplaced.  In the same way, the mother became somewhat anxious about the co-parenting that was taking place under the one roof and the different parenting issues that the father would raise, I have no doubt, affirmatively, logically, analytically, as is his character.  She found this very difficult to grasp and accept.

12. Whether that was because she did not agree or she just did not want to agree with him, I am not sure.  It could have been a bit of both.  It meant therefore that when what could have been nothing more than an innocent comment by the child, and I believe it was an innocent comment, that she was playing a kissing game with the father – something the father actually mentioned to the mother earlier – it began a range of comments that were given a sinister connotation by the mother.  The more she was seen to either accept them or anticipate they could be true, the more anxious the father came about the mother’s mental health.  When all these issues are scraped away, what we have are two different parents who parent differently.

13. There is no doubt that as from the decision in July 2017 the mother was put under enormous emotional pressure.  The father had the benefit of the order and on all respects carried out those responsibilities well, competently and with great care and love.  He did, as the maternal grandmother indicated, prove to be courteous at changeovers but for one or two occasions that were referred to which I give no weight to.  I have no doubt he has enjoyed being in a primary care role of these children.

14. However, the mother since July 2017 has been under enormous pressure of having her role change.  She says and I would accept, from her doing nothing more than what professional people told her to do.  Many of those persons did not have the full picture – I refer particularly to the domestic violence counsellor who I have had no evidence from but who seems to have been at least one of the mother’s supporters in promoting the likelihood of sexual abuse occurring.  Importantly, the mother under such enormous pressure has not, in my view, faltered.  She could not be seen to have made other allegations.  There is no other evidence of erratic behaviour by the mother that would in any way support the diagnosis made by Dr F.

1. Dr F under cross examination became less confident of his assessment.  Now, I am not too critical of the three psychiatrists, all who are skilled in their profession, forensically capable and experienced.  They saw the mother at a different time in a different environment.  I would not be putting the mother through a further psychiatric examination as she has no more need to have that undertaken than anyone else who comes with this history, in my view.  I would have preferred the evidence of Drs G and E to the evidence of Dr F in the end analysis, but in so doing, I would not like to be seen to be saying that Dr F may not have seen the mother in a much different state when he saw her and on his assessment of the facts as he knew them to be, he genuinely and professionally offered an opinion, not supported by the other two psychiatrists and not, in the end analysis, one which I would accept.

2. My major concern about these orders is that these parents may not understand how difficult making an equal time arrangement that involves eight changeovers a fortnight will be.  They are different parents who parent differently.  My assessment of the father is that he is, as Dr G opined, very clever, analytical, logical, thoughtful, caring and loving, but there is a hint in the evidence that I saw in the witness box that he does not easily accept a contrary view to that of his own unless it is from a professional person who then he respects and would adopt.  In some way, the mother is the same except she demonstrated a softer, more reserved, one might even say, at times, laissez-faire attitude.

3. It is difficult to assess how the earlier abusive relationship which the mother had with Mr Q (and which the father was aware of and accepted occurred) shaped the challenges of meeting the needs of a young, now teenager, L, in the household.  It is always important for Courts to assess the journey which people must undertake.  I can understand that the father, doing the best he could from his approach, would have found, other than a very boundary driven and clear consequences environment in which to manage L’s behaviour if not observed by the mother, as frustrating.  I regard his actions in hitting the wall and the pyjama incident as a reflection of his frustration, not an innate anger.  There is no other evidence of anger in his behaviour that I could see on the evidence.

4. When Courts are asked to make orders like this, they have to project about whether or not the behaviour that has been exhibited over the last 12 months is a reflection of their behaviour over the next few years.  Often it is said by experienced Counsel and experienced Judges that past behaviour is a good predicator of future behaviour.  In my view, the past behaviour of both parents, which at times can be criticised for their lack of respect and trust for the other parent, is not a good predicator of their capability for future behaviour in this case.  If I felt it was, I could not, in all conscience, make these orders.

5. However, I have come to the conclusion that I should make the orders in the terms provided.  I do so not being 100 per cent satisfied that they will easily overcome through negotiation, empathetic listening, consultation, reflection and advice, the many issues that parents who wish to have co-parenting need to confront, but the mother and father, in my view, are thoroughly decent people.  They are people who are not affected by ice addiction, alcohol addiction, family violence behaviour, mental illness, all some of the tragedies of parenting which the Court must deal with every day.

6. That at least gives them the capacity, being within the normal functioning range, of making this work if they can learn something from the last five days and, in fact, the last 12 months.  If they can, in a sense, accept that when C says something it may not be a complete statement of fact or truth – it may be exaggerated – and that the most important thing to do when a child says something concerning is generally to ring the other parent and find out what the story is.  Parents often choose not to do that but within their own bubble, work these things up to a state of absolute certainty and concern lack of trust in the other parent.

7. So on balance, having seen the parties in the witness box and understanding the journey they have undertaken, I am satisfied on the balance of probabilities that these orders are reasonably practicable.  I am satisfied that it is in the best interests of these children that they have a sharing of care between their capable parents in the hope that their parents will demonstrate to them the very best of their behaviour and seek to minimise, under stress or otherwise, the worst of their behaviour, some of which I have seen in this case.  I publish these Reasons.  For the reasons I have given, I make the orders by consent without the notation, signed by the parties, initialled by me and placed with the pages.

8. I want to thank Counsel for their assistance in this matter.  It has been a long trial.  It has been a difficult trial.  You have done a justice to your brief.  You have assisted me.  More importantly, I think you have assisted your clients to see the evidence tested that they were concerned about which has, I think, helped shaped their capacity to agree to the orders that they have agreed to today.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 13 April 2018.

Associate: 

Date:  21 May 2018