Pritch and Manousakis

[2016] FamCA 192

FAMILY COURT OF AUSTRALIA

PRITCH & MANOUSAKIS [2016] FamCA 192

FAMILY LAW – CHILDREN – interim orders – best interests of the children – where the children are not attending school – where the father seeks orders for the children to be returned to his care and for him to have sole parental responsibility with respect to the children’s schooling – where the mother seeks an order for sole parental responsibility in relation to the children’s education – where the Court does not consider it appropriate to make the orders sought in relation to parental responsibility – where the children have expressed a view that they do not wish to spend time with their father – where the Court declines to make an order changing the living arrangements of the children – where it is ordered that both parties attend a psychiatric evaluation – where an updated family report is ordered – where the father’s time with the children is suspended – where each party is ordered to bear their own costs.

Family Law Act 1975 (Cth) s 60CC, 62G

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Pritch

RESPONDENT:	Ms Manousakis
INDEPENDENT CHILDREN’S LAWYER	Joanna Richardson & Associates

FILE NUMBER: ADC 471 of 2009

DATE DELIVERED: 22 March 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Mr Hemsley

SOLICITOR FOR THE RESPONDENT:	Culshaw Miller Divorce & Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Horvat
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Joanna Richardson & Associates

Orders

Upon noting that the father is at liberty to bring a further application in relation to spending time with the children following receipt of the report of Mr B and taking into account the likely listing of the matter for final hearing.

Upon further noting that the parties should take all necessary steps to ensure that the children return to normal school if appropriate, taking into account their developmental and learning difficulties.

BY CONSENT IT IS ORDERED THAT

1. Both the mother and the father attend upon an independent psychiatric expert appointed by the Independent Children’s Lawyer for the purpose of a report being prepared detailing the parties’ mental health including the impact upon their parenting capacity.

IT IS FURTHER ORDERED THAT

1. Pending trial the children C born … 2001, D born … 2005 and E born … 2007 (“the children”) live with the mother.

2. Pending trial or further order the time the father spends with the children is suspended.

3. Pursuant to 62G(2) of the Family Law Act 1975 (Cth) the parties and the children attend upon Mr B for the purposes of the preparation of an updated family assessment report but that the assessment process not commence until after the written psychiatric reports of the parties are completed.

4. The updated family assessment report prepared by Mr B be released to the parties at a time to be nominated by the Independent Children’s Lawyer.

5. The Application in a Case filed 24 February 2016 and the Response to an Application in a Case filed 18 March 2016 are dismissed.

6. Each party bear their own costs in relation to the Application in a Case and Response to an Application in a Case.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 471 of 2009

Mr Pritch

Applicant

And

Ms Manousakis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing on an interim basis of the Application in a Case filed by the father on 24 February 2016, and the response to that application filed by the mother on 18 March 2016.  The matter concerns the overall welfare of three children of the parties, C, who was born in 2001 and is now aged 14, D who was born in 2005 and is now aged 11, and E who was born in 2007 who is now aged nine.

2. There have been ongoing proceedings in relation to the arrangements for the children.  The parents have been unable to make arrangements which are in the best interests of the children without access to the Court proceedings.  The matter was transferred from the Federal Circuit Court by Judge Kelly late last year (or early this year) and the matter now comes on again in relation to orders which will apply pending the hearing of the matter.

3. The matter has been referred to the list of matters awaiting allocation of a trial date, but it is not possible to indicate at this stage how quickly that trial will be able to be held. 

4. I have before me the affidavits of the parties and their supporting witness affidavits in relation to the interim issue.  I have taken into account significantly the past family consultant report by Mr B and the reports to which I have been referred, including the report of Ms F, a clinical psychologist, prepared in August 2015.

5. It is clear from the material before me today that the consent orders were made by Judge Kelly in February 2015, July 2015, August 2015 and November 2015,  providing for the children to spend time most recently with the father each alternate Saturday from 10.00 am to 4.00 pm, and each Wednesday during school holidays from 10.00 am to 4.00 pm.  Most recently, the handovers were to take place between the mother and the paternal grandmother.  The information before the Court clearly indicates that the children have not spent any time with the father since approximately August 2015 if not slightly earlier.  That is on the basis that the children are saying they do not want to attend and have refused to attend.

6. The difficulty in this matter is the disputes concerning significant facts and, most significantly, is the reason that the children are apparently saying in front of the father and the paternal grandmother, that they do not want to spend any time with the father and have behaved in that way in front of the paternal grandmother.  The children’s contact centre has also indicated problems. 

7. The significant problem is the basis upon which the children are refusing to attend.  The mother maintains that the children do not want to go because of their attitude towards the father based upon his past behaviour.  Whereas the father is maintaining that the children’s attitudes is brought about by the influence of the mother and, to a certain extent, the eldest child, C, influencing the younger children.

8. It is also significant in this matter that the children have developmental difficulties.  In particular, significant development difficulties have been diagnosed for D and E, suffering from dyslexia.  Of significant concern for the Independent Children’s Lawyer, the father and indeed, to a lesser extent, the mother, is the mother’s inability to make arrangements to ensure that the children regularly attend their school.  They had in the past been enrolled in G School, and during 2015, there was significant periods of absence of the children. 

9. They are now not attending G School at all, and the mother has, notwithstanding the ongoing requirement to consult with the father concerning significant matters, acted on her own and arranged for the children to be enrolled in what is called “open access” schooling, which provides for some of the schooling to be provided for the children to be conducted at home.  I am also led to believe that whatever this arrangement is with the “open access” school, it also includes a proposal to bring about an arrangement where the children are returned to normal attendance at school. 

10. It is clearly in the best interests of the children to attend normal school on a regular basis both for the benefit of their education and development, but also for the benefit of their social development.  This, of course, must take into account their special needs because of their already existing developmental problems. 

11. As I emphasised, this is an interim hearing, and notwithstanding the useful submissions I have received from counsel for the parties and the Independent Children’s Lawyer, I am not able to determine the facts which are in dispute in order to make the significant determinations required by the  provisions of the Family Law Act 1975 (Cth) (“the Act”) which indicate that even on an interim basis, the authority of Goode & Goode (2006) FLC 93-286 confirms that I must consider what is in the best interests of the children and take into account the provisions of s 60CC.

12. The primary considerations under the provisions of the Act when determining what it is in the best interests of the children, are the benefit to the children of having a meaningful relationship with both of their parents, and the major factor, of course, being to protect the children from harm, whether it is physical, psychological or emotional harm. The other factors including the attitude of the parties to their responsibilities as parents, and the children’s wishes.

13. I have the benefit of the past report of Mr B, the reports from the children’s contact centre and from Ms F.  What concerns me significantly in determining the primary factors is whether the harm to the children and the need to protect the children is the need to protect the children from inappropriate influence by the mother, which is alleged by the father.  If that is finally determined after the evidence is heard, that would relate to the mother abusing the children emotionally and psychologically.

14. In the alternative, when the Court has determined all the evidence, if the father’s past behaviour has resulted in the psychological and emotional impact upon the children this could also be considered abusive.  These are matters which cannot be determined at this stage.  It is regrettable that the parties have been unable to take steps which would overcome the difficulties which are presented for the children, and rather, continue with the litigation blaming each other for the difficulties which have arisen in relation to the children.

15. In particular, Ms F’s report of 6 August 2015 refers to the concern she has about the children’s developmental needs and their mental health needs, and the capacity of the parents to cope with those issues.  Towards the end of that report it states:

    In considering what may be possible in the future, a significant consideration is whether the children’s concerns are reasonably held.  This is a matter for evidence.  If so, reunification counselling would be unlikely to succeed without [Mr Pritch’s] acknowledgment of his past alcohol abuse and physically and emotionally abusive behaviour, and evidence of sustained behavioural change.  If it is found that the children’s concerns are not reasonably held, counselling would not be solely “reunification” counselling but initially would need a different focus with [Ms Manousakis] (eg., addressing parental alienation).”

16. That is a brief summary from the last part of her report, indicating that the risk to the children arises from one or other of those significant factors, namely the past behaviour of the father or the current and ongoing behaviour of the mother. 

17. I join with the concerns of the Independent Children’s Lawyer about the failure of the mother to be able to ensure that the children continue to attend their ordinary schooling.  The difficulty at this time, however, is that the mother is maintaining through her counsel that she proposes, or is planning to take steps, to ensure that the children do return to school and are not entirely dependant upon the “open access” schooling.

18. Again, the capacity of the mother to provide for the needs of the children will be a matter arising from that which will be determined at the trial.  If by the time of the trial, the children have not returned to school, then it will be a significant matter for the mother to provide evidence that she has taken all appropriate steps to ensure that they could have returned to school. 

19. The Response to the Application in a Case filed by the mother sought that the mother have sole parental responsibility for the children in relation to their schooling and education.

20. The Application in a Case filed by the father was seeking that the children be returned to his care on a permanent basis with the mother spending limited time, but also sought that he have sole parental responsibility with respect to the children’s schooling.  

21. I accept the submissions of the Independent Children’s Lawyer that it is not the appropriate time to make a determination as to sole parental responsibility, particularly taking into account the history of the children’s care in the past.  I therefore decline to make either of those orders in relation to parental responsibility.

22. That will leave the parties obliged to consult and confer and provide appropriate information about the steps that have been taken for the children’s education so that appropriate decisions can be made about those future arrangements. 

23. The Application in a Case by the father sought that the children live with him, or in the alterative, that D and E live with him and C live with the mother or the father, subject to his wishes.  In relation to the child C, it is clear from the affidavit material filed recently by both parties that C does not now wish to continue a relationship with his father.  Again, the basis for C’s attitude in relation to this will be a matter which is determined at the final hearing.

24. Taking into account that C is now 14 years of age, and his past difficulties, I do not consider it is appropriate for there to be any change in the orders currently in place in relation to C.  In relation to the children E and D, I accept again the submissions of the Independent Children’s Lawyer that notwithstanding the difficulties it appears the mother has had about ensuring that the children attend school going back well into 2015 and currently, that notwithstanding that significant issue on the current evidence before the Court, the Court is not able to determine whether that raises the significant concern which the father has raised about the mother’s capacity to provide adequately for the children.  Therefore, at this stage, I decline to make an order changing the living arrangements.

25. I do that also on the basis that the children’s attitude currently expressed in the presence of the paternal grandmother and, in the past, in the presence of the father, and in the children’s contact centre, is that they do not wish to spend time with the father.  Therefore there is a risk of significant psychological and emotional harm to the children should an order be made on this interim basis altering their living arrangements.

26. In relation to the psychiatric evaluation of the mother, I have already made the consent orders in relation to both parties attending to that psychiatric evaluation.  That deals with the matters raised in the Application in a Case. 

27. I now turn to the response to the application filed by the mother.  She sought an order that the Court order dated 11 November 2015 continue and that paragraph 2 of the order of 11 November be varied to read:

    The children [C], [D] and [E] spend time with the father, subject to their wishes.

28. This is a matter I raised with counsel for the mother in his submissions because of the implication that this would mean that the children would have to be taken to the handover point each alternate Saturday and each Wednesday during school holidays, and then required to express their wishes in the presence of, presumably, the paternal grandmother, or whoever was attending on behalf of the father to the handover. 

29. Counsel for the mother indicated that that was not the order that the mother was actually seeking.  I was concerned, as I expressed during the submissions, that the mother was planning to take the three children to the handover point each alternate Saturday.  I was concerned about the impact that that would have upon their ongoing development, particularly their emotional and psychological development.  This would be the case whether it is the mother who is responsible for the children’s attitude towards the father or whether it has been the past behaviour of the father that is responsible for their attitude.

30. Notwithstanding that the mother was seeking those orders in paragraphs 1 and 2 of her Response to an Application in a Case, I agree with the Independent Children’s Lawyer’s submissions that the orders that provide for the father to spend time with the children should be suspended until further consideration is appropriate.  Unless there is some other factor which arises in the meantime this is a matter to be determined at the trial. 

31. The mother also seeks an order that the children continue their schooling with H School where they are currently enrolled and attending.  I am not disposed to make such an order.  I consider it to be the mother’s responsibility, in consultation with the father, to take all necessary steps to ensure that the children are returned to normal schooling, if that is possible and appropriate, taking into account their conditions and developmental difficulties. 

32. The further order that was sought was that there be an updated family assessment by Mr B in relation to the children.  I have discussed with counsel the possibility of delaying another assessment until the matter is about to be listed for trial, as I consider ongoing assessments of children in family law proceedings can sometimes be a disadvantage to the children because of the need to attend and seemingly be, to a certain extent, involved in the ongoing litigation when their parents are unable to carry out their responsibilities to make appropriate decisions without the intervention of a Court.

33. In this case, however, I consider that it could be some considerable time before the trial is listed, and, therefore, a family assessment report taking into account the psychiatric assessments to be prepared in relation to each of the mother and father would be of assistance, both to the parties and to the Court. 

34. Although I have discharged the order for the time the children spend with the father pending the trial, I will also have it noted that the father is at liberty to bring further application in relation to spending time with the children after the receipt of Mr B’s report, and taking into account the likely listing of the matter for final hearing. 

35. In relation to the question of costs, that is a matter which clearly could be determined when the parties reach trial.  But, on the face of it, I am inclined to order that each party bear their own costs of the Application in a Case and Response, there being a significant issue to be determined that brought about the Application in a Case, and the orders sought in response. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 March 2016.

Associate: 

Date:  31 March 2016