Picton and Picton (No 2)

FAMILY COURT OF AUSTRALIA

PICTON & PICTON (NO. 2)

[2009] FamCA 934

FAMILY LAW – CHILDREN – Interim judgment – time to be spent with father pending final hearing

APPLICANT:

Mr Picton

RESPONDENT:

Ms Picton

INDEPENDENT CHILDREN’S LAWYER:

Mr Mark Whelan

FILE NUMBER:

SYC

523

2008

DATE DELIVERED:

29 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Hausman

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lawson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

Interim parenting orders

Pending further order, all previous parenting orders which dealt with parental responsibility or the time that the children spent with both parents are discharged.
Pending further order, the father and mother be granted equal shared parental responsibility for the three children of the marriage S born … December 1999 (“S”), O born … February 2002 (“O”) and E born … July 2003 (“E”) (collectively “the children”).
Pending further order, the children live with their mother at times that they are not otherwise with their father.
Pending further order, S and O spend time with their father as follows:
4.1.Each alternate week from after school Friday to before school Monday, extending to before school Tuesday in the event of a long weekend.
4.2.From after school until 7.30pm on Wednesdays and Fridays in the other week (being the week preceding the weekend when the children are not with their father).
4.3.In the October 2009 school holidays in the following pattern:
4.3.1.From 10am Friday 9 October 2009 to 5pm Saturday 10 October 2009.
4.3.2.From 10am to 5pm Sunday 11 October 2009.
4.3.3.From 10am Monday 12 October 2009 until 5pm Tuesday 13 October 2009.
4.3.4.From 10am to 5pm Wednesday 14 October 2009.
4.3.5.From 10am Thursday 15 October 2009 until 5pm Friday 16 October 2009.
4.3.6.From 10am to 5pm Saturday 17 October 2009.
4.4.After school until 5pm … December 2009 for S’s birthday.
4.5.In the Christmas school holiday period 2009/2010:
4.5.1.Each alternate week from 10am Sunday until 10am the following Sunday commencing Sunday 13 December 2009.
4.5.2.From 2pm Christmas Day 2009 overnight until 5pm Boxing Day 2009.
4.5.3.From 9am until 6pm on … January 2010, being the father’s birthday.
4.5.4.Between 5pm and 7.30pm … February 2010 on O’s birthday.
Pending further order, E spend time with her father as follows:
5.1.In the October 2009 school holiday period from 10am to 5pm each day from Friday 9 October 2009 to Saturday 17 October 2009 inclusive.
5.2.During term 4 2009, each alternate week from after school Friday to 5pm Saturday commencing 23 October 2009 and each other week from after school on Wednesday until 7.30pm and after school on Friday until 7.30pm.
5.3.After school until 6pm on … December 2009 for S’s birthday.
5.4.In the Christmas school holiday period 2009/2010 from 10am Sunday 13 December 2009 until 5pm Wednesday 16 December 2009 and at similar times each alternate week thereafter (that is 10am Sunday to 5pm Wednesday).
5.5.From 9am until 6pm … January 2010, being the father’s birthday.
5.6.In school term 1 2010, each alternate week from after school Friday to 5pm Sunday commencing Friday 29 January 2010.
5.7.Between 5pm and 7.30pm … February 2010 for O’s birthday.
Pending further order, for the purpose of implementing the time that E spends with her father, the mother will cause an independent person, not being herself, to deliver E to the father and failing her nominating somebody, the parties will confer and appoint Dial-an-Angel to provide an employee to facilitate the transfer of E from her mother to her father and the father in the first instance will pay the costs of that service.
Pending further order, on occasions when the children are not to be picked up by their father from school at the commencement of the children’s time with their father, the children shall be delivered by the person nominated by the mother (or Dial-an-Angel) to the security office, W premises, and the father shall be present at that place to receive the children in a timely way.
Pending further order, on any occasion when the children will spend overnight with a parent then that parent will ensure that the children will telephone the other parent between 6pm and 6.30pm on each second night the children are with that parent.

Procedural orders

On or before 29 October 2009 the mother file and serve an affidavit setting out her evidence and the affidavit of any witness in relation to the following factual matters and events as alleged by her:
9.1.Those relevant to the father’s mental status prior to June 2006.
9.2.Details of the father’s five suicide attempts prior to separation.
9.3.Behaviour displayed by the children which raised concerns by the mother about the father’s parenting capacity.
9.4.Occasions when the father returned the children to the mother when the children were sick.
9.5.The history of E’s unwillingness to go with her father.
9.6.The history of E going on play dates, birthday parties and other activities when she has been due to go to her father.
9.7.Occasions when the father has inappropriately excluded the mother from activities relating to the children.
9.8.Conflict in the home between July 2006 and August 2007.
9.9.Occasions when the father has been antagonist and/or vindictive towards the mother.
9.10.Things done by the mother since separation to facilitate the children’s time with their father.
9.11.Any other relevant matter or event that the mother believes is important in correcting any history the father has given to Dr M (such material to be subject to any objection on the grounds of relevance).
On or before 29 October 2009 the father file and serve an affidavit setting out his evidence in relation to the following factual matters and events as alleged by him:
10.1.Involvement in the children’s sport and homework since separation.
10.2.The amount of time spent overnight in his mother’s home since separation.
10.3.The father’s future ability to work and his earning capacity.
10.4.The history of the father’s caregiving since June 2006 to separation and from separation to date.
10.5.Occasions between June 2006 and separation when the mother allowed the children to be alone with the father.
10.6.Occasions since separation when the father has been involved in a motor vehicle accident or has not been able to drive a motor vehicle or boat.
On or before 19 November 2009 each party file and serve any affidavit in reply to the affidavits referred to in Orders 9 and 10 respectively they wish to rely upon at trial.
Only evidence about the matters and events referred to in Orders 9 and 10 be filed without leave.
On or before 2 November 2009 each party must notify each other party in writing of:
13.1.the documents that the party intends to tender in evidence in chief; and
13.2.if inspection has not taken place — where and when the documents can be inspected.
On or before 16 November 2009, each party who is notified under Order 13 must notify the party who gave the notification:
14.1.which documents can be tendered by consent;
14.2.which documents may not be tendered by consent; and
14.3.the reasons why consent is withheld.
No later than 26 November 2009, the parties must give the court a copy of the documents that are to be tendered by consent and a list of those documents.
This matter be adjourned to 11am on 30 November 2009.
The parties prepare a draft trial plan and email that document to my associate by 26 November 2009.
On or before 29 October 2009 the husband file and serve an affidavit setting out the evidence upon which he seeks to rely at the final hearing in relation to initial contributions made by him towards the acquisition, conservation or improvement of assets and contributions made by him by way of receiving inheritances in 2004 and 2005 and as soon as practicable, provide to the wife source documents in relation to his claims in respect of these contributions.

NOTATION

I note that I have reserved days in the week commencing 1 March 2010 for the hearing of this matter. Those dates to be confirmed on 30 November 2009.
It is anticipated that the parties will attend interviews in January 2010 for Dr M to prepare a short updating report.
It is anticipated the parties may both file updating affidavits at the end of February 2010 indicating how the children have progressed in the time they have spent with their father between now and then.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 523 of 2008

MR PICTON

Applicant

And

MS PICTON

Respondent

REASONS FOR JUDGMENT

The parties have sought that I make some new interim orders relating to what time S born in December 1999, O born in February 2002 and E born in July 2003 spend with their father between now and the resolution of the final stage of the hearing.
The father seeks orders as outlined in his Application in a Case filed 22 September 2009. The wife seeks orders outlined in her Response to an Application in a Case filed in court on 28 September 2009. The Independent Children's Lawyer seeks orders as outlined in oral submissions.
The father relies upon Dr M’s report dated 11 July 2009 and the father’s affidavit filed 22 September 2009. The mother relies upon an affidavit sworn 28 September 2009 and filed in court on that day.
The children have not had overnight time with their father for some considerable time.
The current arrangements are that the children spend time with their father after school on Tuesday and after school on Thursday until 7pm. The father picks the children up from school and returns them to the mother’s home. S and O spend each alternate Saturday or Sunday with their father from 10am until 5pm. The mother delivers the boys to their father (or they meet at sport) and he returns the children. E is supposed to go but does not get out of the car. There is also telephone contact between the children and their father at 5pm Monday and Wednesday of each week.
To date, the time that the children spent with their father during school holidays has been limited and in accordance with what the mother has been prepared to provide. The pattern of holiday time, on a daily basis, is evidenced by annexures “B” and “C” to the father’s most recent affidavit. At the insistence of the mother, the children’s time with their father has been supervised by the paternal grandmother.
The mother wishes to contest the opinions and recommendations made in Dr M’s report. She will be given an opportunity to do so at the final hearing.
On 3 September 2008 the parties provided the court with a chronology in respect of which both the mother and father had made comments. It is not disputed that in June 2006 the father suffered a condition which developed into a problem that ended the marriage. At page 29 of her report, Dr M records that the father has been treated with a wide variety of antidepressants, mood stabilisers and major tranquilizers, many of which have caused side effects. She comments that the father’s compliance with medication had not been reliable and that made it difficult to assess which medication, if any, are helpful to him. She notes that there is a paternal family history of depression resulting in suicide.
Prior to the downhill slide commencing in June 2006, the father was assessed as being a high functioning outgoing and loving person.
Dr M at page 30 of her report notes that one of the most significant issues to be addressed is the father’s failure to acknowledge that he had been depressed. Dr M comments that that raises concerns about how the father may react to a further episode and his willingness to seek help, if and when he experiences a further episode. She opines that having had one episode of a major depressive episode leads to a 65 percent chance of a further episode.
At page 33 of her report, Dr M expresses the view that the father’s depression is gradually remitting and the episode of illness appears to have run its course. He does not have difficulty with concentration, he is not groggy, can think quickly, makes plans and is beginning to work again, which is a promising prognostic sign. She observes he wants to actively parent his children as he did before.
The father referred to and relied upon a short updating report from Dr J dated 14 August 2009 which is in the following terms:
“This is to certify that [the father’s] emotional and psychological state has improved markedly. In my opinion, he is capable of looking after his children during weekend ‘sleepovers’ and is not a danger to their health or safety.”
Counsel for the mother cautioned about the weight to place on that report given that it was unclear what “improved markedly” might mean.
Dr J’s opinion of course is, like the rest of the evidence in this case, yet to be tested. It is not clear from the face of the report the basis upon which he has formed his opinion.
It is Dr M’s assessment that the father has warm positive affectionate relationships with all the children.
She assesses that S in particular is missing out on a great deal with the limited contact he currently has with his father. She opines that S is at significant risk of developing depression if he does not spend full weekends with overnight access with his father and half school holidays. She goes on to say that while O does not express this as clearly, he does want to spend more time with his father.
There is clearly a problem with E spending time with her father. When observed with her father, E was excited and happy and interacted with her father in a normal healthy manner showing no reluctance.
The mother’s affidavit however tells a story from the mother’s point of view as to how E struggles a great deal with moving from her mother to her father at times when she is originally with her mother. Dr M recommended that some form of intermediary handover rather than a direct one involving the mother and the father on the same premises be attempted. Dr M was of the view that direct handover between the mother and the father seemed to intensify E and the mother’s anxiety. This meant that any handover of this nature in Dr M’s opinion was doomed to failure.
I have been informed that the parties are unable to reach agreement as to somebody to assist in E’s handover. I will make my own order about that.
In reaching a conclusion as to what should happen in the short term, bearing in mind that a final hearing of this matter is anticipated in the early part of 2010, I need to take into account so far as I can, those matters set out in s 60CC Family Law Act. There are a number of matters on an interim basis that are relevant and they include:
20.1.The benefit the children would have of having an opportunity to improve a meaningful relationship with their father.
20.2.The risk to S of him developing a depressive illness, as opined by Dr M, if something is not done about the current arrangements.
20.3.The risk of a reoccurrence of the father’s depressive illness and his ability to seek appropriate assistance in respect of that illness.
20.4.The mother’s attitude towards promoting a relationship between, in particular E and her father.
20.5.The fears that the mother has (as yet untested) but apparently based upon her experiences with the father since June 2006, and the affect on the final hearing of a possible finding that the mother’s fears are real but unreasonable.
The father applied pending further order for equal shared parental responsibility. The mother did not speak against that. I will make that order pending further order. Having made that order I am required pursuant to s 65DAA Family Law Act, to consider equal and if not substantial and significant time if I think it is in the best interests of the children and is otherwise reasonably practicable.
There is very limited communication between the parties at the current time. Nobody has indicated to me that they have sought to implement the recommendation of Dr M that the parties involve themselves in some post separation parenting counselling together. Because of the competing risks in this case, risks which will be more fully analysed at a final hearing, I cannot say at this time that it is in the best interests of the children for them to spend equal time or substantial and significant time with their father.
The children should talk to the other parent on at least every second night the children are not with that parent.
The father had not provided me with great detail in relation to how he would accommodate the three children at his mother’s home but during oral submissions indicated that he would be sleeping on the lounge and the two boys would have their own bedroom and E would have her own bedroom. That of course is not intended by the father to be a long term proposal.
The drop off point for the children to the father at times when the father is not collecting them from school will be adjacent to the security office, W premises.
The father wishes to go to half school holidays and five nights a fortnight regime in relation to the two boys immediately with a slightly less immediate regime in relation to E.
The mother has abandoned as a condition of the children spending time with their father the requirement for supervision by the paternal grandmother. She has moderated her opposition to overnight time.
The Independent Children's Lawyer’s submission is based on an approach which is not as cautious as suggested by the mother but not as expansive as that suggested by the father.
In general terms, it seems to me that the Independent Children's Lawyer’s position is an appropriate balance.
I accept the Independent Children's Lawyer’s submission that we should not attempt overnight contact prior to re-establishing daytime contact.
Under the orders I make, E will be having some overnight time with her father during fourth term.
I think it is appropriate that E spend at least part of the time the boys are with their father during Christmas school holidays. I accept that for this Christmas school holidays, a week about approach in relation to the boys is appropriate. E should spend some of that block time with her father and for this Christmas I would start with consecutive nights, Sunday, Monday, Tuesday when the boys are with their father.
I will make orders in the form of the document entitled “Orders” based upon what I think is in the best interests of the children on an interim basis where contested evidence has not yet been tested.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate:

Date: 29.9.2009

[2009] FamCA 934

29 September 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Discovery

Costs

Procedural Fairness