Peters and Ustinov (No 2)

[2011] FamCA 653

FAMILY COURT OF AUSTRALIA

PETERS & USTINOV (NO 2) [2011] FamCA 653

FAMILY LAW - CHILDREN - With whom a child spends time - Conditions for parent spending time with child

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Peters

RESPONDENT: Mr Ustinov

INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

FILE NUMBER: PAC 3670 of 2009

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 27 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Sharon Payne & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Self Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams Partners, Solicitors

Orders

The orders that I make are these:

1. That the father spend time with the child of the marriage B born … July 1999 as follows:

   a.   On Friday 29 July 2011, in the presence of Mr I, from after school until 5.30 pm.  The father shall collect the child from school on that occasion and shall return the child to the mother’s residence at the conclusion of that time. 

   b.   On Saturday 6 August 2011 from 12 noon until 4 pm, in the presence of Mr I, with the child again to be collected and returned from the mother’s residence. 

   c.   Thereafter for 6 consecutive Saturdays from 10 am until 4 pm.  There shall be no requirement for any other person to be present.  The father shall collect the child from and return the child to the mother’s residence.

   d.   At the conclusion of those 6 Saturdays and, for a further 6 occasions, each alternate weekend commencing on the second weekend after the last of the 6 Saturday only occasions, from 9 am Saturday until 5 pm Sunday.  The father shall collect the child from the mother’s residence at the commencement of such time and return the child to the mother’s residence at the conclusion of such time.

   e.   After the last occasion of time provided for in the immediately preceding sub paragraph the father shall, during school term, spend time with B each alternate weekend from after school Friday to before school Monday.  The first such occasion shall be two weeks after the last occasion referred to in the immediately preceding sub paragraph. Thereafter the time in each school term is to commence on the second Friday of term.

   f.   For the purpose of time in the immediately preceding sub paragraph the father shall collect the child from school and return the child to school.

   g.   That during the short school holidays, that is the holidays between Terms 1 and 2, Terms 2 and 3 and Terms 3 and 4, the father shall spend time with the child from 9 am on Saturday nearest to the midpoint of those holidays until 6 pm on the day falling two days before the first attendance day of the next term.  For example, Saturday if Monday is a day requiring attendance of pupils and Sunday if Monday is a Pupil Free Day. The first period of such holidays is to be in the holidays falling between Terms 1 & 2 in the year 2012. The father shall collect the child from the mother’s residence at the commencement of each such period and return the child to the mother’s residence at the conclusion of each such period.

   h.   For the Christmas school holidays in December/January of 2011/2012 I order that the father spend time with the child commencing from 9 am on Saturday 7 January 2012 and concluding at 7 pm on Saturday 21 January 2012.  The father shall collect the child from the mother’s residence at the commencement of such period and return the child to the mother’s residence at the conclusion of such period.

   i.    For the Christmas school holidays commencing December 2012 and each year thereafter for one half of those holidays commencing at 9 am on the day nearest to the midpoint of those holidays and concluding at 7 pm on the day falling two (2) days before the first attendance day of the next school year. For example, Saturday if Monday is a day requiring attendance of pupils and Sunday if Monday is a Pupil Free Day.

2. That in the event that B, on any occasion, makes it known to the father that he wishes to return to the mother, the father will contact the mother and advise her of that fact and will return the child as required by her to either her residence or some other place that she nominates.

3. That in the event B is sick on Friday and not able therefore to spend time with the father, the mother shall ensure that prior to 1 pm on that day, she makes available to the father, a medical report setting out in detail why the child is not able to attend school and spend time with the father.

4. That in the event such report does not make it clear that the child is so unwell as to not be able to spend time with the father then the child, with all relevant medications and instructions for their use, shall be taken to the father’s residence by the mother.

5. That the child spend from 4 pm on 24 December until 1.30 pm on 25 December in each year with the father.  The father shall collect the child from the mother’s residence at the commencement of such period and return the child to the mother’s residence at the conclusion of such period.

6. That the child spend Easter Saturday with the father in each year from 10 am until 5 pm. The father shall collect the child from the mother’s residence at the commencement of such period and return the child to the mother’s residence at the conclusion of such period.

7. That the child spend from 4 pm until 8 pm with the father on his birthday each year.  The father shall collect the child from the mother’s residence at the commencement of such period and return the child to the mother’s residence at the conclusion of such period.

8. On the occasions that the father is to collect the child from the mother’s residence and return the child to the mother’s residence the father shall arrive at the mother’s residence and remain in his motor vehicle.  The father shall not leave that motor vehicle for any reason whatsoever.  The mother shall remain inside the home and shall for herself not leave that home nor shall she permit any other person to leave the home.  Home shall mean the dwelling house on the property.

9. The mother shall not permit or encourage any person to be present for the purpose of in any way becoming involved with the father, or photographing him or in any way endeavouring to speak with him.

10. That the mother shall use her best endeavours to encourage both boys to be aware of and embrace their Polish heritage.

11. That neither party shall denigrate the other to the children or either of them nor cause, permit or encourage any other person to do so.

12. That the mother is not to refer to the father as “[an abbreviation of the father’s first name]” when speaking to the children.

13. That the mother shall use her best endeavours to assure the children that they have done nothing wrong in the past and hereafter need only look to the future.

14. That the child B may be involved in advanced Sport 1 at the father’s expense provided that the child has expressed a wish to be so involved.

15. That the mother make the children available to the Independent Children’s Lawyer within seven (7) days, by arrangement, for the Independent Children’s Lawyer to explain these orders to the children.

16. That the Independent Children’s Lawyer explore with B the issue of Sport 1 and thereafter communicate with each of the parties in writing as to  the wishes the child has expressed to her.

17. That all applications and cross applications be and are hereby dismissed.

18. That all issues be removed from the Active Pending Cases List.

19. That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders. 

20. Noted that the mother has indicated that she does not press the order and issue of costs previously made in her favour relating to an unsuccessful application by the father to have her dealt with for contravention.  I dismiss specifically any applications or reservations of costs in relation to the costs of such unsuccessful contravention application.

21. I order that if the father, at any time, seeks an order that the children may be taken out of the Commonwealth of Australia, then the father is to file the appropriate application with appropriate supporting material so that issue can be heard. Such application may be listed before me in the first instance.

IT IS NOTED that publication of this judgment under the pseudonym Peters & Ustinov (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC 3670 of 2009

Ms Peters

Applicant

And

Mr Ustinov

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter has taken a most unusual course.  It was heard by me over a number of days, and at the conclusion of what I considered to be the substantive hearing, I stood the matter over for the delivery of judgment.  I required the father to provide medical evidence in relation to his condition and his prognosis.  Subsequently and following a number of appearances at the instigation of the father, I delivered a judgment in respect of the issue of parental responsibility on 3 June 2011.  On that occasion, I did not deal with the issue of the time that the father was to spend with the children, because I still required information upon which I could place reliance as to his medical condition.

2. The father has now provided from S Hospital a short note from Dr L, a discharge referral letter from that hospital, a letter from Dr C of 20 July 2011 and a report of the anatomical pathology and cytology unit.  Those reports indicate to me that the father has undergone what appears to be successful surgery for the removal of a cancer, and I am aware that he has follow-up which he tells me will be surgery of some sort, but he is not able to tell me whether it will be day only or more intrusive surgery, which is to occur no later than 12 weeks from the date of his previous surgery.

3. I have heard today further submissions from the parties as to the time the father should spend with his younger son and the manner in which that should be structured.  The father produced, for my assistance, a minute of the orders that he sought, and I propose to use that as something of a basis for the orders that I propose to make. 

4. When I delivered judgment on 3 June, I made reference to the background of this matter, and the material relied upon by each of the parties.  I incorporate that material into these reasons for judgment. 

5. The issue now before me, as I have said, involves the time that the father is to spend with the parties’ youngest son from this point onwards.  There has been some discussion as to whether or not I should make interim or final orders in this respect.  It has been suggested that after a number of occasions of time with the father, I might reconsider the situation and make any further orders then appropriate. 

6. Unfortunately, or perhaps I should say fortunately, I do not believe that is an appropriate way to proceed.  I believe that final orders need be made for the sake of B, for the sake of the parties, and for the sake of the Court.  I propose, then, to deal with the matters that I consider are appropriate to be taken into account in reaching a determination in this matter and thereafter making the orders that I consider appropriate. 

THE LAW TO BE APPLIED

1. This, of course, is a parenting matter.  Accordingly, there are provisions of the Family Law Act to which I must have regard. It is to be remembered that there is already in place an order that imposes upon the wife sole responsibility. 

2. The first of the sections which I must take account is section 60B, which alerts me to the fact that there are objects set out in the Act in relation to parenting matters.  The objects are that the children should spend meaningful time with each parent, but subject to the need to protect the child from any risk of harm.  Accordingly, a balancing act is imposed. 

3. Section 60CA tells me that I must have regard to the children’s best interests in reaching a consideration as to the orders to be made. 

4. Section 60CC(2) sets out the primary considerations to which I must have account, and once again, there is imposed a balancing exercise by virtue of the primary considerations more or less echoing the objects, the need for a child to have a meaningful relationship with a parent balanced against the need to protect the child. 

5. Section 60CC(3) sets out additional considerations.  I considered these matters in my earlier judgment from paragraph 56 onwards.   So far as the views of the child (s 60CC(3)(a)) are concerned, I am satisfied, as I have already found, that B appeared to enjoy his time with his father when he was interviewed as part of the process of preparing Dr T’s report.  However, it is clear that he tells his mother something quite different.  I am aware the father says that the mother has clearly intimidated and alienated these children from him.  However, I am not able to say that the child’s response is solely as a result of that.  I am satisfied that B wishes to stay living with his mother, and as I see it, he wishes to be as happy as he can, and he wishes for that reason for his mother to be as happy as she can be.  I am satisfied that this is a genuine wish on the child’s part.  I am satisfied that, as I have found in my earlier judgment, the father sees things in a very simple way:  that which he perceives to be correct is correct, and everybody else’s view is to be disregarded if it in any way disagrees with his point of view. 

6. I turn, then, to section 60CC(3)(b), the child’s relationship with each of his parents.   I have found the relationship with the mother is proper and supportive.  I have difficulty with the father’s relationship.  Having said that, I have no doubt that the father deeply loves both boys and is particularly anxious to be involved in the life of his youngest son to the fullest extent possible.  The difficulty for me is that the father sees that there could never be any impediment or difficulty or need for him to be reintroduced to his son gently.  He simply sees that he has what he perceives to be his right to see the child and all else must give way to that.  I am satisfied, as I have previously found, that the mother has not facilitated an ongoing relationship with the father. 

7. The likely effect of change (s 60CC(d)) in this case is to me of significant importance.  If I put in place orders, no matter how structured, for B to spend time on a consistent basis with his father, I am satisfied that the child will have some difficulty in dealing with that.  The father, I am satisfied, will not be able to restrain himself from overwhelming the child, as he did and as reported by Dr T during the course of the interviews.  To my mind, that is something that causes me to believe that the time the father is to spend with the child – and there is no doubt that he is to spend time with the child – needs to be carefully managed. 

8. I find no real practical difficulty and expense in the father spending time with the child (s 60CC3(e)). 

9. I have looked at the capacity of each of the parents and the attitude to parenthood (s 60CC3(f)).  In my view, the mother again has a proven capacity.  Her attitude is of concern in that she has not recognised, in my view, the boys, and particularly B’s need to have his father have some part in their lives.  So far as the father’s attitude is concerned, I am satisfied he loves his sons dearly. It is his inability or lack of capacity to control himself in such a way so as not to alarm his sons that is my concern.  For example, whilst he has made much of the fact that the mother needs be restrained from making comments derogatory to him, I am satisfied that one of the reasons he wishes to see the child is so that he can explain to him his view that that which has happened in the past has not been the fault of the father or the children.  Of course, I have no doubt that he would say if given the opportunity that he would not blame the mother, but I am satisfied that he would leave no doubt in the child’s mind that the mother was indeed the person who was the cause of all difficulties. 

10. I have already dealt with s 61DA(1) requirements as to equal shared parental responsibility and have not found that the parties should enjoy equal shared parental responsibility of these children.  However, their Honours of the Full Court in Goode & Goode[1]  made it clear that even if equal shared parental responsibility was not conferred upon the parents, there is still a requirement to deal with the issue of equal time or significant and substantial time with each parent. An order has been made as part of my previous judgment that the children live with their mother.    

    [1] (2006) FLC 93-286.

DISCUSSION & CONCLUSIONS

1. There are no great differences in the proposals made by each of the parties.  The questions are when certain things should occur.  It is agreed between the parties that there should be two occasions when the child should spend time with his father for a fairly limited period of time in the presence of Mr I.  I am satisfied that for those two occasions, one of which will now be Friday rather than Saturday, that the appropriate wording is that “such time be in the presence of [Mr I]” rather than using the words “supervised by [Mr I]”, which the father clearly finds to be offensive.  I propose to order those two occasions. 

2. The father then proposes that we should move quickly towards the situation where he is having overnight time with the children from after school on Friday to before school on Monday.  His exact proposal is that from 6 August, there should be time every Saturday, and then the period of time with the father from Friday to Monday is to commence in ten weeks from today’s date or two weeks after the father’s second surgical procedure. 

3. It has been put to me by counsel for the independent children's lawyer that she certainly agrees that there should be a number of occasions building up to the father spending time overnight from Saturday to Sunday.  However, she has put to me that whilst she does not advocate for that then extending to Friday afternoon to Saturday morning, that there is much to be said in the parties not having to come into contact with each other for the purpose of changing the child from mother to father and at the end of such periods, the father returning the child to the mother.  Of course, there will have to be a period of time when this occurs on the father’s own proposals. 

4. The parties have been able to agree, to their credit, that the child will spend Christmas Eve with his father from 4 pm until 1.30 am on Christmas Day.  It is agreed B will spend Easter Sunday with his father from 10 to 5, and I will make an order that the father is to spend time with the child on the father’s birthday from 4 pm till 8 pm.  

5. The question is how quickly and in what circumstances do I move towards the father having time with the children on an overnight basis from Friday afternoon to Monday morning.  In my view, this cannot happen immediately.  The father himself appears to concede that by the way in which he has formulated in his minute of proposed orders.  I am of the view that in all the circumstances of this case, the Friday of this week and Saturday of the following week with Mr I are entirely appropriate times for the father to spend with the child.  It will allow father and child to enjoy each other’s company but have others around them that may make their relationship and interaction easier. 

6. Thereafter, there will be six occasions, weekly, of Saturday time with the child.  Those times will not be supervised or specified to be in the presence of any person.  On those occasions the father will be required to collect the children from and return them to the mother. 

1. Thereafter, I am satisfied that it is appropriate in all the circumstances of the case to enable the relationship of father and son to be bedded down as best possible and to enable the child to become comfortable in the father’s presence and at his residence that there be six further occasions on alternate weekends from Saturday morning to Sunday evening. 

2. At the conclusion of that time I will order that the time progress to overnight time commencing on Friday and concluding on Monday morning, with collection from school and return to school.  I am satisfied that that is a proper progression.  I am satisfied that it is indeed in the best interests of the child and will enable the father, if he chooses to do this, to relax, be relaxed and encourage his son to relax in his presence so that there will be an ongoing relationship between father and son for the benefit of B. 

3. The father has raised issue that if the child wants to remain overnight during the Saturday periods of time referred to above that he (the child) should be entitled to do so.  I have given this matter some thought.  To my mind, it could only lead to the father perhaps unintentionally, perhaps intentionally, putting pressure on B to ring his mother and say that he wishes to stay overnight.  Accordingly, I do not propose to provide the opportunity for that to happen.   That means the first occasion of overnight time will occur when the Saturday to Sunday time comes into force and effect. 

4. The father has, to my mind, sensibly said that if B wishes to go home, he will make arrangements with the mother for that to occur either by him returning the child or the mother in some fashion collecting the child. 

5. I propose to make orders that neither party will denigrate the other in the hearing of the children.  I propose to make an order that the mother will encourage the children to be aware of and embrace their Polish heritage.  That does not mean, nor is it to be taken to mean, that I am in any way forming a concluded view as to whether or not the child should travel overseas, as the father now proposes should occur.   

6. Sport 1 has come to assume real significance in this matter.  The father says he only wants B to do it if that is the child’s wish.  He suggests a Ms B might ascertain B’s wish.  As I understand it, the mother’s case is that B does not wish to do this.  How is the deadlock to be broken?  It has been put to me by Ms Mahony, the Independent Children’s Lawyer, that the child should, if possible, not be exposed to further interviews by different health professionals and other people.  Whilst I am aware the father believes that this cannot happen fairly, I propose to order that the child be made available to Ms Mahony for the purpose of her explaining the orders that have been made to B.  I would further charge her with the obligation of discussing the question of Sport 1 with him and thereafter reporting in writing to each of the parents, and I would suggest an identical letter in both cases, as to what B has expressed his wish to be. 

7. The father has sought a number of orders about the mother never again involving the children in parental conflict.  I believe the orders that I make for non-denigration are as far as I can go in this respect.  I would hope that after the prolonged misery of the hearing that both parties will see these orders as final and will endeavour to ensure that their son’s welfare is that which is foremost in both their minds.   

ORDERS DELIVERED

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 27 July 2011.

Associate: 

Date:  19 August 2011