Pickering and Pickering (No 3)

[2010] FamCA 980

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO. 3) [2010] FamCA 980

FAMILY LAW – CHILDREN – interim orders – where the mother seeks that previous final consent orders be varied – where those orders provided that the child live with the father, spends time with the mother and the parties have equal shared parental responsibility – where the child has not been living with the father and this has been the subject of contravention applications – whether it is appropriate for the order to be varied – best interests – orders suspending the primary order that the child live with the father – held not appropriate to make orders for equal time of substantial and significant time

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA & 70NBA

Family Law Rules 2004 rr 1.12

Dobbs & Brayson [2007] FamCA 1261
Goode v Goode (2006) FLC 93-286
MRR & GR [2010] HCA 4
Re F Litigants In Person Guidelines (2001) FLC 93-072

APPLICANT: Mr Pickering

RESPONDENT: Ms Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 28 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 October 2010

REPRESENTATION

FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Nicholls Gervasi & Co

Orders

1. The matter of consideration of orders in relation to the child H born on … June 1995 is adjourned to Tuesday 23 November 2010 at 9.15 am before the Honourable Justice Dawe.

2. That any application by the mother seeking orders in relation to the child H be filed and served by 4.00 pm on Monday 8 November 2010 AND UPON NOTING specifically listing the Initiating Application if filed and served by 8 November 2010 before me on 23 November 2010 at 9.15 am.

3. Any Response and affidavit in support of the Response to be filed by the father is to be filed and served by 4.00 pm on Thursday 18 November 2010

4. During the period of the adjournment paragraphs 1 and 2 of the order of 22 October 2008 are suspended so far as it relates to the child H.

5. During the period of the adjournment the child H live with the mother.

6. During the period of the adjournment the mother do all things necessary to ensure that the child attend K School on all school days unless the mother obtains a Medical Certificate for any days or part of a day that the child is absent from school and send a copy of such Medical Certificate to the father by pre-paid post within twenty-four [24] hours of obtaining the same. 

7. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child H born on the … June 1995 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission copies of documents lodged since the discharge of the Independent Children’s Lawyer in October 2008 and the Court requests the Legal Services Commission to give consideration to the reappointment of Mr Kent who was formerly the Independent Children’s Lawyer in this matter.

8. Pursuant to Section 11F of the Family Law Act 1975 as amended the parties and the child H do attend upon a Family Consultant as the Adelaide Registry of this Court for such appointment(s) as the Family Consultant deems necessary and upon such date(s) as are advised by the Family Consultant in an endeavour to assist the parties in achieving a final resolution of the issues between them or at the very least an interim resolution pending the trial of these proceedings UPON NOTING that the Court informed the parties this day of the consequences of failure to comply with this Order (Section 11G).

9. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a Family Consultant provide to the Court a report in respect to the child H born on … June 1995 directed to best interests, living arrangements and other orders to be made in relation to the child H and directed in particular to his relationship with the mother and father and the other children in both households and the relationship with the mother’s partner and also directed to H’s school attendance and H’s views in relation to the orders sought by the parties in these proceedings and that such report be released (if possible) to the parties and to the Independent Children’s Lawyer on or before the hearing on 23 November 2010, taking into account also that if a Family Consultant within the Registry is not available within this time that consideration be given to Ms SA preparing the s62G(2) report for the Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

MR PICKERING

Applicant

And

MS PICKERING

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application made by the mother in relation to the child of the parties, H.  H is one of the three children the subject of a Consent Order made in this Court on 22 October 2008.  That order dealt with parenting arrangements in relation to M who was born in September 1993, H who was born in June 1995 and S who was born in December 2000. 

2. The application which is before me today takes two forms;  the mother brings the application by way of oral application before the Court today seeking the orders pending the mother’s filing of an appropriate application for the orders and serving the same upon the father.

3. The second limb of the application is that it is brought by way of a variation to the parenting order resulting from the contravention proceedings which have been before the Court, being the contravention proceedings brought by the father, two of which I have dismissed and the others after discussion have been withdrawn by the father. 

4. The first issue that is properly raised by the father is the question of the late notice of the application and its oral nature.  He correctly points to the Rules which require the service of affidavits in sufficient time for the party to consider them before the hearing.  He was incorrect in referring to the requirement of special service upon himself of the mother’s affidavit.

5. However, it is noteworthy that the affidavit was not served upon him until 25 October 2010 and that there is no adequate explanation being given as to why that affidavit was not served upon him earlier.  That is the affidavit of the mother, filed on 1 October 2010, which in its last few paragraphs puts the father on notice that the mother was seeking an order changing the orders in relation to the child, H. 

6. The Rules also provide for the Court to dispense with the Rules in certain circumstances.  Those are the provisions of Rule 1.12.  The Court is there referred to factors which may be considered, including the main purpose of the Rules, the administration of justice and the effect that granting relief would have on each party and parties to other cases in the Court.

7. The main purpose of the Rules encourages the Court to deal with each case fairly, justly and in a timely manner and refers to the parties being encouraged to settle and obtain a resolution otherwise than through the Court processes.  Regrettably, those provisions in relation to mediation and settlement have not been successful in this matter. 

8. It is, however, appropriate to consider that the matter is dealt with fairly, justly and in a timely manner.  In that regard the Court notes that H has not been residing with the father since the middle of September this year and that matter was the subject of some of the contravention applications instituted by the father.

9. It is also worthy to note that the father was aware from the email correspondence from the mother that H had indicated a wish to live with the mother and that the mother had re-enrolled him into the K High School. 

10. The father correctly, however, draws attention to the fact that he was not on specific notice that the matter would be dealt with today based upon the affidavit of the mother and the application of the provisions so far as they relate to the consequences of contravention proceedings.  I have earlier referred the father to the provisions of section 70NBA, which specifically give the Court power to vary the primary order when dealing with a contravention application.

11. Having heard brief argument on the matter and considered the authorities I am satisfied that the reference to the “primary order” means the whole of the order and not merely the individual sub section to which the particular contravention related. 

12. I have gained some assistance from the Full Court decision of Dobbs & Brayson [2007] FamCA 1261.

13. I drew the parties’ attention to the actual contravention application form which, as part of the annexures, refers to the notice being given to the respondent warning the respondent that the Court has the power to vary the terms of the order when hearing an application for contravention.  That notice appears in the standard contravention application form under the second main paragraph which is headed “Important Notices to the Respondents”.  It reads:

    “For an application alleging contravention of an order affecting children”

    and then states:

    “Depending on whether the contravention or a reasonable excuse for the contravention is established and whether the contravention is more serious or less serious, the Court may vary the primary order.”

14. I accept the submissions of the father in that that is a notice to the respondent (in this case the mother) and does not necessarily draw the applicant’s attention to the fact that, whether or not the contravention application is successful, the Court may vary the primary order. 

15. However, the provisions of section 70NBA are clear.  The question then arises, however, whether the Court should make such an order.  It is clear from the authorities and the decision of Dobson & Brayson (Supra) in particular that it is necessary for the Court to give full consideration to the provisions of Part VII of the Family Law Act and in particular section 60CC in determining what is in the best interests of the children as the paramount consideration.

16. Therefore, two main factors which need to be considered are:

    (i)is whether it is appropriate at this stage to make an order varying the primary order, taking into account the restricted amount of notice that has been given to the father and the fact that following the guidelines of Re F Litigants In PersonGuidelines (2001) FLC 93-072, the father should be given a further opportunity to argue the matter; but,

    (ii)more importantly, what is in the best interests of the children and in particular H in this matter. 

17. To that extent, therefore, I have to consider section 60B of the Family Law Act 1975 (Cth), which sets out the objects of the Part in relation to the children. I take those objects into account, and in particular, that the objects include the basis for the primary considerations and additional considerations referred to in section 60CC.

18. Section 60CA requires the Court to regard the best interests of the children as the paramount consideration. 

19. I am also required to take into account the decision of the High Court in MRR & GR [2010] HCA 4 in relation to the provisions of section 65DAA. In this case the consent order, which was made in October 2008, provided for the parents to have equal shared parental responsibility. The Court therefore must give consideration to the High Court decision and their interpretation of the provisions of section 65DAA.

20. Those provisions refer to determining whether spending equal time or substantial and significant time would be in the child’s best interest, and whether such orders would be reasonably practicable.  The question of reasonable practicality is dealt with in detail in subsection 5.  I will consider that later. 

21. Section 60CC factors (referred to in the decision of Goode v Goode (2006) FLC 93-286) are still required to be considered, notwithstanding that the Court has limited basis upon which to form final conclusions about the conflicted evidence being presented to the Court.

22. The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect, or family violence.  The difficulty in this matter is that the consent orders were made in October 2008 on the basis that the children would live with the father and spend time with the mother, as set out in that order.  At the time those orders were made, certain concerns now expressed by the father were known to the father.  Notwithstanding those concerns, arrangements were made for the children to spend time with the mother and her partner.  The question, therefore, of protecting H from psychological harm is in the context of the time that it is now proposed he spend with the mother (and the extended family in the mother’s household) rather than on alternate weekends and school holidays.

23. Psychological factors were taken into account, no doubt, when the orders were made providing for extra time for H to spend with the mother following upon the contravention findings when his Honour Justice Watt made orders to increase the time that the children spend with the mother. 

24. In considering the additional considerations, significant considerations are any views expressed by the child, and any factors such as the child’s maturity or level or understanding that the Court thinks are relevant to the weight it should give to the child’s wishes. 

25. Exhibit 1 has been received by the Court.  It says:

    “To dad,

    I just wanted to let you know that I want to live with mum because I am sick of us fighting all the time and all my family and friends are down this way.  I do plan to see you but not at this moment because I am afraid of what you will say and I don’t want to fight.

    Love [H]”

26. The father accepts that the note was written by H, but does not accept it was written without considerable influence or coercion from his mother or some other adult.

27. At this interim stage the Court is unable to determine the basis of H’s note and how much it states his genuine views, because of the very nature of these interim proceedings.  It is, however, an emotive note written by a 15 year old to his father.  I take into account that the Court is unable to establish, at this stage, what matters influenced H to write this note to his father. 

28. Another additional consideration of significance is the nature of the relationship of the child with each of the parents and other persons.  In relation to other persons, the significance of any order changing the arrangements would be the separation between H and his sister S, who currently resides with the father.

29. Subsection (d) being the “likely effect of any changes in a child’s circumstances, including the likely effect on the child of any separation from either his or her parents, or any other child or other person with whom he has been living” is a factor the father submits the Court should take into account.  The arrangements made by consent in October 2008 have been in place (subject to the variations already mentioned) providing for H to reside with the father and S.

30. The other factors to be considered are the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  In this particular case there is conflicting evidence about the willingness and ability of the parents to facilitate that.  Until recently, the October 2008 orders were in place.  Steps were taken after the contravention proceedings against the father (following the children being taken by the father from the State of South Australia) which impacted on the relationship between the mother and the children. 

31. The mother indicates in her correspondence with the father by way of email that she proposes to encourage H to maintain his relationship with the father, but she seeks to have arrangements based upon H’s wishes.

32. In relation to the other significant matters, such as the capacity of both parents and the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents, the father draws attention to Exhibit 2, which contains the school records for the three children.  On the face of it H has not attended school since 9 September this year.  That is a significant period.  This is the time in which H has apparently been residing at the home of the mother.  The father asserts that this indicates that the mother does not have the capacity or appropriate attitude towards her responsibility as a mother to ensure that H attends school.  The father maintains that raises a significant concern about the mother’s attitude and capacity as a parent.

33. On the mother’s behalf, the counsel for the mother has indicated that she would accept, without any admission, an order requiring her to ensure that H attends school as part of the orders which she seeks today.  Nonetheless, the Court has to take into account the factors clearly indicate that H has not attended school recently.  The Court is, however, not in a position to ascertain the basis for that failure to attend, bearing in mind that this is an interim application and the evidence is in dispute has not been tested. 

34. The other significant factor raised by the father is the arrangements made in the mother’s household.  He gives evidence from the bar table that the premises are not maintained in a satisfactory manner, and highlights again from the bar table the difficulties in relation to other occupants of the house, namely, O and the mother’s current partner.  In relation to those matters, again, it is apparent from the Court file that those concerns were previously before the Court, and notwithstanding that, the consent orders were made in relation to H, and indeed, the three children spending time with the mother, notwithstanding those allegations. 

35. The Court is required to make an order that will ensure H’s best interests are the paramount consideration.  I take into account that the order will be made for a limited time, it being proposed that the mother’s application and supporting affidavit material should be filed promptly, and the matter listed back for further consideration on 23 November 2010.

36. Bearing in mind the age of H and the material referred to in the mother’s affidavit (albeit untested and opposed by the father) together with Exhibit 1, being the note from H, I am satisfied that it is in the best interests of the child in the short term, for the order to be made suspending the order that H live with the father, and providing for him to live with the mother during the period of the adjournment, on condition that the mother take all necessary steps to ensure that H attends the K School on all school days, unless the mother obtains a medical certificate for any day that the child is absent.

37. The Court is required to consider the factors in section 65DAA; whether spending equal time or substantial and significant time with each of the parents would be in the best interests of the child. 

38. The reasons that I have given in relation to the interim orders until the adjourned date apply equally to the consideration of equal and substantial and significant time.  It is not in H’s best interests for any such order to be made during the period of the adjournment.

39. When considering reasonable practicality, the provisions of subsection (5) of section 65DAA apply.  The parents live some distance from each other;  the mother living in the K area and the father living in an area north of Goolwa.  The subsection (b) “the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents”.  Based upon the history of the matter and the difficulty these parties have had in the past, it is clear that there is very limited capacity, at the present time, for the parents to implement any such arrangement, because of the lack of trust and ongoing conflict. 

1. Subsection (c) refers to the parents’ current and future capacity to communicate with each other, and resolve difficulties that might arise in implementing an arrangement of that kind.  Again, the history of this matter, and even these current proceedings, make it clear that there is a very limited current capacity to communicate with each other and resolve difficulties, and regrettably, it appears that in the immediate future, that also applies.  I say regrettably, because the Court is always keen to encourage the parties to undertake mediation and processes such as those proposed by the mother and father for some counselling at Relationships Australia. 

2. I am also required by subsection (d) to consider the impact that an arrangement of that kind would have on the child.  For the reasons that I have given in relation to the consideration of the section 60CC factors, at the present time, an arrangement involving  equal or substantial or significant time is likely to have an adverse, detrimental impact upon H.

3. I have considered the other matters under section 60CC, and conclude that the provisions of section 65DAA are such that, notwithstanding there is currently an equal, shared parental responsibility order, it is not appropriate to make the orders for equal time or substantial and significant time. 

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  4 November 2010