Prentice & Maheris (No. 2)

[2009] FamCA 743

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS (NO. 2) [2009] FamCA 743

FAMILY LAW – CHILDREN – Interim parenting hearing – Time spent with child by father – Part of defended proceedings including property and financial issues before the Court in three months time – Evidence of experts – Views of Independent Children’s Lawyer  

Family Law Act 1975 (Cth)

APPLICANT: MR PRENTICE

RESPONDENT: MS MAHERIS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 7 AUGUST 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 7 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: MR THOMPSON

SOLICITOR FOR THE 1ST APPLICANT: GR CAMPBELL

COUNSEL FOR THE 2ND APPLICANT:

SOLICTOR FOR THE 2ND APPLICANT:

COUNSEL FOR THE RESPONDENT: MR STRUM

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS SMITH

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

Ordres

IT IS ORDERED:

1. THAT paragraph 1 of the Orders made by consent by Mushin J on 3 February 2009 be discharged.

2. THAT until further order the husband spend time with the child … born … November 1999 as follows:

   (a)on each alternate weekend commencing Saturday 15 August 2009 between the hours of 10.00 a.m. Saturday and 5.00 p.m. Sunday, save that when Daylight Saving commences such time spent with period conclude at 6.30 p.m.;

   (b)on Father’s Day, 6 September 2009 between the hours of 10.00 a.m. and 5.00 p.m.;

   (c)on the afternoon of the school fete in 2009 for a period equal to one half of the afternoon or two (2) hours and to be at the commencement of that afternoon fete time (most probably 12.00 noon);

   (d)on each Wednesday commencing 12 August 2009 from after school until 6.00 p.m.;

   (e)in the first week of the September school holidays from 10.00 a.m. Tuesday until 6.00 p.m. Wednesday inclusive and on the second weekend of such school holidays from 10.00 a.m. Tuesday until 6.00 p.m. Thursday inclusive.

3. THAT the supervision order pursuant to s65L of the Family Law Act 1975, and as provided for in paragraph 5 of the Orders pronounced 3 February 2009 continue in full force and effect.

4. THAT the husband and wife are to be punctual in the delivery and return of the child on all periods of time spent pursuant to these Orders.

5. THAT it is requested that Dr L further see the parties and the child in late October 2009 for the purposes of an updated addendum to his report due for September 2009, such further consultation and short report to be at the joint expense of the parties.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. THAT until further order the current venue arrangements for drop off and collection of the child remain.

8. THAT the husband’s application in a case filed 3 June 2009 be otherwise dismissed.

9. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

10. THAT as to the child / parenting issues hereby concluded by these interim orders there be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11939 of 2007

MR PRENTICE

Applicant

And

MS MAHERIS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Prentice and Maheris is before me on issues of and concerning the only child of the marriage, a son, who is almost 10 years of age.  Mr Thompson of counsel appears for the applicant husband, Mr Strum of counsel for the respondent wife, and Ms Smith is the Independent Children’s Lawyer.  This matter has been before me on a number of occasions.  I have, today, had submissions from counsel for all parties, including the Independent Children’s Lawyer.  These reasons are delivered ex tempore without leaving the bench, and are, therefore, brief and in summary form.

2. I have given all due proper care and attention to the outcome of this case and determined orders that are in the best interests of the child, but I do so having to move on to the various property and financial matters in this case that are also awaiting today case management or determination.  As background, this matter is listed before me as a four day hearing in the last week of November 2009 though with the caveat that it may be transferred for hearing to an interstate or other judge if availability permits.  The matter was last before me on 2 June 2009, and on that occasion I briefly considered the issues of the child, and made orders requiring a further report from Dr L. 

3. There are now appointments made for Dr L to see the parties and the child in late August, and that report should be prepared and released on or before 4 September 2009.  I have raised with the Independent Children’s Lawyer that it may be very appropriate for Dr L to have a further conference with the parties and the child in late October to update his extensive report, soon to be filed, on the basis that there will be some additional time spent between father and son as, certainly by agreement, there will be some September school holiday days to be organised in like manner as occurred in the June/July school holidays of this year. 

4. The background to the determination of appropriate orders for the child are the consent orders made before Mushin J on 3 February 2009.  It was ordered then, until further order, that the husband spend time with his son as follows:

   a)From 10.00 a.m. Saturday until 10.00 a.m. Sunday on each alternate weekend; and

   b)From 10.00 a.m. Saturday until 6.00 p.m. Saturday on each other weekend. 

5. Additionally there was permission for the husband to attend school concerts, swimming sports and parent/teacher interviews, and those orders were made on the basis that they were to be returned to my docket for preparation of a final hearing with any such priority as may be determined by the court.  There were various notations made to those orders, seemingly at the instigation of the mother, as they highlight her reservations as to the father’s capacity to sensitively attend to the child’s needs, and otherwise her various fears and expectations of and concerning the father’s behaviour and her child’s safety.

6. I have read and considered those notations which were emphasised by the wife’s counsel in his submissions.  The application in this matter that is before the court today was filed 3 June 2009.  The husband therein highlights the further orders for time that he would propose to spend with his son on an ongoing basis over the next year or thereabouts from the date of those orders.  The extent of time to be spent, and all of the various occasions, are best highlighted by the fact that there are close to 20 subparagraphs identifying the various times and occasions. 

7. In essence, and clearly on an interim basis with a hearing pending rather optimistically, what was sought was alternate weekends, Friday to Monday inclusive, Wednesday after school overnight until the following morning, and thereafter extensive holidays, special occasions, and ongoing periods as are specified in that document in which time does not permit me to more extensively outline, but which I have carefully read and evaluated.  In support of that interim application the husband filed a substantial affidavit and annexures thereto on 3 June 2009. 

8. A further affidavit was filed on 30 June 2009 by a Ms H, who is a psychologist in private practice, and I have observed that she is engaged in the practice which is either operated by, or supports, the general practitioner for the wife and child.  By leave today the husband filed a further affidavit and that has been now read, and it deals with the further time that he has spent with his son post 2 June 2009, and I have read paragraphs 7 to 10 inclusive of that affidavit and its annexures.  Specifically, there is a request contained therein for the father to take his son on a weekend camp on 24 February 2009, which will be in the Victorian countryside.

9. I have read the annexured document as to the purpose, intent, and benefit of that camp, including the matter which the Independent Children’s Lawyer highlighted to me that it provides a contemporary community based rights of passage for boys 13-15 and their fathers on a mentorship basis.  I do also understand, from what Mr Strum has addressed to me, that that weekend is a family christening for the wife at which she and her son would be reasonably expected to attend.  The response of the wife seeks a dismissal of the husband’s application, and she would propose that there be no change to the consent orders of Mushin J of February of this year, bearing in mind that defended child matters are before the court later this year, timing permitting and if the current estimate of counsel is and remains both responsible and accurate.

10. The wife filed an affidavit on 30 June 2009 with many and varied annexures thereto, and I have read that document, and counsel for the wife have taken me to numerous paragraphs thereof highlighting her current fears, concerns, and attitude both towards the father and towards any extension of time spent between father and son pending further order.  Finally, I have had the benefit of submissions by Ms Smith representing the child.  In brief summary, her submission is, save for September school holiday periods, that the orders should remain as previously ordered by the court, and there should be no variation to the orders pending the November hearing date, or otherwise in the reasonably short term thereafter.

11. Her emphasis was upon the preparation of the report of Dr L that it will soon be available, and that any variation of the orders should await that document and its recommendations.  In brief overview, therefore, that is the evidence before the court, save I have been particularly referred to earlier reports of Dr L, and, in particular, there is a report of some 14 pages dated 24 June 2008 and amended in September of that year, and more recently a series of further reports or response to issues and/or letters annexed to an affidavit filed 28 January 2009 by Dr L.  And, in particular, there is a five page report dated 2 December 2008 to which I have been referred.

12. As counsel have addressed the various issues, concerns and recommendations of Dr L, I have had the opportunity of reading those reports and reflecting upon his recommendations and his substantial professional involvement in this case and concerns with many of the matters and issues arising.  As I said at the outset, these reasons are extempore and, therefore, cannot go into the detail that one could develop upon these substantial and very costly affidavits which have been prepared by or on behalf of the parties.  The affidavit of the husband filed 3 June of this year is a substantial document in its annexures.  Otherwise, as to its content, it does highlight the continuing issues and very vigorous attitude that the husband has taken to developing more time with his son.

13. It is a fact that, shortly after the last court order which was made by consent in February of this year, there were letters written in March, April and May requesting extended time with his son.  The father highlights those letters as his real concern, and what he would say is in the best interests of his son following upon interim orders.  I contrast that with the submissions on behalf of the wife that they highlight the obsession which the father has with the continuing time spent with issue, and his lack of acceptance of orders previously negotiated only months before that letter writing commenced. 

14. Those various letters are identified within the material, and I understand both their timetable and content.  It is a matter that Mr Thompson highlighted to the court, that the orders of February 2009 were interim orders, and, on one view, they were intended to “hold the fort” until mid year when optimistically there was to be a trial.  The reality in this case, and I have already previously determined, is that I will not split the hearing of the property and child issues.  Both matters are being prepared, seemingly at no limit to cost or expense of the parties.  No doubt, both issues are of very real importance.  The time that the court may have available to hear and determine the issues that the minute detail that parties want to attend to is, however, a very different matter. 

15. I was told at the outset of proceedings today that the husband could no longer afford to retain his former solicitors and he has now engaged a new firm of solicitors to act on his behalf, as is his right. 

16. I return to the issues of the child and, in particular, the foundation of the husband’s case lies in the earlier recommendation of Dr L contained in paragraph 5 of his September 2008 amended report, which is when he, Dr L, recommended an increase to a whole day in time spent for a period of three months, after which then to be extended to 6.00 p.m. Friday through Saturday at 5.00 p.m. or as agreed.  There is conflict as to whether or not that recommendation purports a weekly overnight period of time spent, and it is somewhat confusing in the manner in which it is written in paragraph 5, and I will await the evidence of Dr L at another date in time to explain both his past recommendations, but, more particularly, in future he will be able to give some meaningful updated recommendations on the basis of recent time and events in this case.

17. I was referred by Mr Thompson to particular paragraphs of this affidavit of the husband, and also his subsequent affidavit now filed.  I have read that affidavit, and, in particular, the paragraphs to which I have been referred.  I do understand the husband has deposed to the court that the child appears happy and excited to see him, and the prospect of spending more time with him is, he believes, positive and indicative of a child who was eager to stay longer and should have more time with his father.  Otherwise I have particularly read paragraphs 11 and 12 of that affidavit. 

18. I have examined the communication book attached to the order and draw no interim conclusions therefrom, such as is indicated in the submissions of Mr Strum.  I balance the various positive aspects of the father with the concern, yet to be tested, of the Independent Children’s Lawyer of potential issues of violence within the family, and/or, although not expressly stated, the whole concept of bullying which somewhat underlines the affidavit of the wife and the various contacts and issues between parents.  It is somewhat tragic in this case that there is little or no realistic communication and probably no respect between parents for each other.  But that is a matter the court will not likely change, though I will be very interested in the further observations and discussions that Dr L is able to advance upon that matter and the related issues of and concerning the best interests of the child.

19. I have had regard to the issues touching upon parent/teacher meetings, and the letter of 22 May 2009 which Mr Thompson referred me to from the Independent Children’s Lawyer annexed to the husband’s affidavit.  I also am aware of the report of the individual observing the child, Ms A, and her 13 October report, and acknowledge in that it does identify interaction that was both affectionate and playful.  Indeed, it was on the basis of that report, and some observations of Ms Smith, that Dr L was prepared to advance his thoughts on the matter.  There is also in evidence an affidavit of Ms H.  I have read the affidavit, although it was not the subject of any substantial submissions.

20. In particular, Mr Thompson referred to the conclusion which is extremely positive of the husband, if it be correct and able to withstand any reasonable level of cross-examination.  On a reading of that conclusion, one is left with the understanding that it is the belief of Ms H that the husband has worked hard and with great genuineness to develop a child focused attitude.  He is said to be a thoughtful and patient man who remained always constantly polite, reasonable and open.  I observe that that professional witness, who may or may not hereafter be called in the proceedings, is said to be confident in stating the husband is a gentle reasonable person with a sensible and appropriate concern for his child. 

21. Those conclusions, of course, all await evidence and testing.  The recommendations that follow are somewhat surprising within the context of that report but, nevertheless, it is said that there should be a staggered increase in the child’s “access” with his father until equal “access” is achieved.  Further on I read that the father may assume full-time “custodial care” and the mother be given “supervised access” if her health and emotional issues impact on the child and if that is considered significantly detrimental.  All of those matters, of course, await another day, but the preliminary observations from a one-sided (father only) report are indeed somewhat remarkable. 

22. As to the affidavit of the mother and its various annexures, I have both read and have been taken to paragraphs which Mr Strum believes are both relevant and supportive of his client’s case for no change in the current order.  In particular, I was taken to, and I have read, paragraph 8, 11, and 12 thereof.  There are certainly issues and happenings in those paragraphs that do need further explanation, but which, in the passage of time, perhaps may become less and less relevant and, indeed, expensive to the parties.  I make no finding on the tenor of the affidavit which, in part, is that the husband is possessive, overbearing, and somewhat obsessive of the issues. 

23. Certainly I have been taken to the example of the mis-typing in paragraph 17, and given that the other day is a Tuesday it would seem odd that the husband could logically explain that paragraph, or his actions, with a belief of what he may have been entitled to by way of further time spent, but that can await another day.  There are, of course, the usual complaint of an overbearing attitude or lack of punctuality, but, again, they are not matters that influence me on these interim matters.  The heart of the wife’s application is that the orders are recent and should not be changed.  Ultimately I do not accept that application, and I will make some variations to the order.

24. Whilst it might simply be the increasing age of the child is not a valid basis for holding past orders, there are various extended periods that have been agreed to in June/July holidays.  It is important that this matter progress, albeit slightly, before the further hearing so that Dr L can be more informed, and the child can have some time with the father that can be reflected upon in the further hearing.  What is sought by the father however is outside of the best interests of his son, and I will not be granting all of the time spent orders on an interim basis as he would require. 

25. I turn to the reports of Dr L which are prepared on an ongoing basis and which include substantial interviews with the parties, the child, and relevant individuals.  They are all helpful, but in due course will form the fabric to his further report.  I emphasise that Dr L is to be the single expert in this case, and I will entertain no application, nor is there any such application before me for him not to continue to be primarily involved.  His most recent report before me is annexed to his affidavit of 28 January 2009, and it is dated 2 December 2008.  I have been taken by both counsel to that report.  It is helpful because it balances the observations and views of Ms A and provides an update report and observation upon the child and his comments to Dr L.

1. I balance those comments in the context that they were more of inquiries, and time does not permit a detailed examination of the child’s response therein.  I have read the discussion contained in the penultimate paragraph, and, of course, there is a level of caution which Dr L has in moving forward with further changes.  On the one hand, the positive reports of Ms Smith and Ms A provide comfort but, otherwise, his own observations and the responses of the child are balances to any more substantial order.  In particular, his professional opinion is that:

   “After virtually a year of regular contact, and a year further removed from separation, [the child] has not been engaged to a degree that would permit of him an effusive endorsement of his father’s attentions”. 

   There is very particular reference to the attempts of the father to unduly influence his son, and that is said to be inappropriate and:

   “It shows continuing difficulties for the father in understanding his son’s needs, and in not being able to subsume his own agenda to his son’s welfare”.

2. There are many, many questions posed in that report, the answers of which are not all available this day.  I will, therefore, proceed in the best interests of the child with due caution and proper regard for the requirements of the Family Law Act 1975 but time simply does not permit a full elaboration of all of its requirements. However, I have overwhelming regard to the best interests of the child as required by section 60CA. The objects and principles of the Act, as outlined in section 60B, are fundamental and well understood by the court, though these are interim proceedings and, in reality, the task I am attending to is determining an appropriate order for the next three months, or thereabouts, pending if and when the final property and parenting case can be ready and within the timetable which counsel have previously outlined.

3. How a court determines what is in the best interests of the child are clearly identified in section 60CC.  I have particular regard to the primary considerations which are the benefit of the child having a meaningful relationship with both parents, and the need to protect the child from being exposed to any form of abuse, neglect, or family violence.  Again, I draw emphasis to the concerns of the Independent Children’s Lawyer of potential family violence and/or a level of bullying or unrealistic expectations of the father.  I make no findings whatsoever thereon.  I, for the purposes of these interim orders, have concentrated upon the benefit to the child of the relationship with both parents, and that is one of the reasons why I intend to modestly vary the existing orders.

4. The additional considerations are all set out at section 60CC(3), and I have regard to those, and, in particular, the views expressed by the child as I have read in the report of Dr L.  There are many subparagraphs herein which will be of concern to a court on a further hearing, and, in particular, the attitude to the child and responsibility of parenthood, and the capacity as parents.  Of course there are many other issues that go to the suitability of both husband and wife, and I make no finding thereof, and also issues of family violence are clearly identified within subparagraphs (j) and (k) of that section. 

5. I have considered, as I need properly consider, all of those matters in determining interim orders, but, they will likely be more carefully explored hereafter.  I return to the specific issues before the court.  I will not be permitting the child to attend the camp.  It is somewhat of a recent afterthought of the husband.  It has not been properly detailed or explained and, in any event, a christening of a close family member is an important event in the life of the child and he will be attending that christening.  Insofar as that may occur on a weekend when the child is with his father pursuant to the orders, then that contact is suspended on that day, and will be substituted by a contact by way of make-up by a day on either side thereof. 

6. As to weekends, the husband’s next weekend, on an overnight basis with his son, commences Saturday, 15 August.  Under the existing order, that would run from 10 o’clock Saturday until 10 o’clock Sunday, and on alternate weekends.  I am going to extend that time so that it commences at 10 o’clock Saturday, certainly not on the Friday night, and continues until 5.00 p.m. on the Sunday.  When daylight saving commences it will extend until 6.30 p.m. on the Sunday.  As to the other weekend currently ordered, that is the day time Saturday between 10 o’clock and 6 o’clock inclusive each other Saturday, I discharge that order.  That will mean that the wife will have an entire weekend.

7. As to mid week access, I propose a regime where the father does see his child every Wednesday.  It will commence after school and will conclude at 6 o’clock.  As to the September school holidays, there will be periods where it is in the child’s interest to spend time with his father.  In the similar vein to the June/July school holidays the father will have the Tuesday and Wednesday in the first week, and the Tuesday, Wednesday and Thursday in the second week.  Those times will run from 10 o’clock on the Tuesday and conclude either on the Wednesday or the Thursday at 6.00 p.m. 

8. As to the school fete, the time will be simply divided that particular afternoon. Knowing that these parents, or it may even be the solicitors, will be unable to agree or negotiate any time, the father will meet the child at the school fete for the first half and the child will remain and be with the wife and go home with the wife on the second half. The wife will be responsible for any delivery of the child to and from Dr L in such conferences as are arranged. The operation of section 65L as provided for in paragraph 5 of the order of Mushin J can continue.

9. I do not intend to make any order in respect of the child’s birthday in November, but if it be that the matter for timetable or other reasons is not listed then I give a very blunt indication that the husband must have at least two hours after school on that day with his son, and no more.  As a caveat to all of these orders, and a matter that I will be examining hereafter, if appropriate, the parents must observe punctuality with orders.  There is to be no late delivery or late return.  Timetable is fundamental, and I record that in very blunt terms. 

10. As to Father’s Day, which this year falls on Sunday, 6 September, that is not on the weekend of the alternate weekend rotation for the husband, and on that day, and by way of interruption of the wife’s weekend, the son is to be with his father between 10.00 a.m. and 5.00 p.m. inclusive.  I will prepare orders and otherwise dismiss the interim application of the father for other orders sought.  I will have these extempore reasons transcribed, placed upon the court file, and made available to parties.  I record there is a necessity to move on with the other issues in this matter, albeit that will now be after lunch having spent the morning on these issues. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: