Prouse and Prouse

[2007] FamCA 291

FAMILY COURT OF AUSTRALIA

PROUSE & PROUSE [2007] FamCA 291

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

Goode V Goode (2006) FamCa 1346
Cowling (1998) FLC92-801

APPLICANT: Mr Prouse

RESPONDENT: Mrs Prouse

FILE NUMBER: MLC 2398 of 2007

DATE DELIVERED: 22 MARCH 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 22 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Connell

SOLICITOR FOR THE APPLICANT: Peter Baker

COUNSEL FOR THE RESPONDENT: Dr Alexander

SOLICITOR FOR THE RESPONDENT: Patricia Samson

Orders

1. The Husband and the Wife have equal shared parental responsibilities for the children of the marriage, the elder son born in September 1999 and the younger son born in December 2001

1. Until further order the said children spend time with the Husband as follows:-

(a)    From 6.30pm Friday 30 March 2007 to 6.00pm Sunday 1 April 2007

(b)    From 6.30pm Friday 27 April 2007 to 6.00pm Sunday 29 April 2007

(c)    From 6.30pm Friday 11 May 2007 to 12noon Sunday 13 May 2007

(d)    Thereafter each alternate weekend from 6.30 Friday to 6.00pm Sunday

(e)    From 12 noon Sunday 8 April 2007 until 6.00pm Sunday 15 April 2007

(f)     By telephone each Wednesday between 6.30pm and 7.00pm

1. The said children shall spend with the wife at all other times as from 6.00pm 23^rd March 2007 subject to either of the maternal grandparents being in substantial attendance.

4(a)  Changeover for the periods referred to in paragraphs 2. (a), (b) and (c) shall be at the McDonalds Family Restaurant at P;

(b) The children shall be collected from K McDonalds at the commencement of the period referred to in paragraph 2. (c) and returned at McDonalds P on the at the conclusion thereof;

(c)  The Children shall be collected at the P McDonalds on the commencement of the period referred to in paragraph 2 (c) hereof and returned at the McDonalds K at the conclusion thereof;

(d)  The children shall be returned to the Wife at 6 pm  on the 23^rd of March 2007 .

1. Until further order the Husband and Wife and their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said children from the Commonwealth of Australia.

1. The Marshall and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s name on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said children’s name on the Watch list until further order of the Court and the fathers Solicitors shall notify the Australian Federal Police and the Marshall of the Family Court of Australia of these Orders and serve a sealed copy as soon as possible.

2. The said children be separately represented and it is requested that Victoria Legal Aid arrange an Independent Children’s Lawyer.

3. The Husband and the Wife attend upon a report writer nominated by the Independent Children’s Lawyer and follow all lawful directions of such report writer for the purpose of the preparation of a family report to the issues of the issues of interim residence and time, such report writer to have leave to read the Court file and all subpoenaed and released material.

4. The costs of the Family Court shall be borne equally between the Husband and Wife.

5. The proceedings be adjourned to the Senior Registrar’s Duty List at 9.45am on the 15^th of May 2007 for interim hearing.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2398  of 2007

Mr Prouse

Applicant

And

Mrs Prouse

Respondent

REASONS FOR JUDGMENT

1. This case is being adjourned for eight weeks, with the agreement that there should be an Independent Children’s Lawyer, and the preparation of a report before any further decision can be made.  The only issue before me today is where 7½-year-old son and five‑year‑old son shall live in the meantime.

2. The children have lived with their mother near B since separation in August 2006, and they lived in that location before then.  Since separation until a few weeks ago they were seeing their father every second weekend.  They have lived for about four weeks or so now with their father in the E area, since he kept them in his care saying that they were at serious risk with their mother and that she was incapable of caring for them properly. 

3. The father proposes that until the matter returns to court the children should live with him but spend alternate weekends with their mother, as well as Mother's Day and half school holidays.  The mother proposes that the orders should be a mirror image of that.

4. The court must apply Part VII of the Family Law Act, as amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act, and must follow the legislative pathway in the manner set out by the Full Court in Goode v Goode (2006) FamCA 1346. That is a decision of Bryant CJ and Finn and Boland JJ delivered on 15 December 2006. In Goode's case the Full Court agreed with a previous Full Court in Cowling's case (1998) FLC 92‑801 that the procedure for making interim parenting orders will be an abridged process where the scope of the inquiry is significantly curtailed. It is all the more so when, as here, I am making an order that is really preliminary to some longer-standing interim orders, in the sense that I am being to asked to make orders only for the next eight weeks.

5. I note that the Full Court in Goode's case did not adopt Cowling's case in relation to “status quo” as a starting point in interim proceedings, saying that although stability derived from a well settled arrangement is important, obviously the court has to look at the full range of features in terms of a child's best interests. 

6. In this case the father says that the had been concerned about the mother's capacity to look after the children, the way in which she was looking after the house, that she was still involved in drugs, that if she was not taking certain prescribed medication then she acted in an inappropriate manner, and, that she mistreated the children by slapping them.  However, he says that he was prompted to act to remove the children when he was told by Mr K, the father of the mother's 11½-year-old daughter, S, that in mid‑February he went to the mother's house, the mother was in bed, she admitted she had taken speed, her face was scratched, and she had a 17‑year‑old boyfriend there - all in all, a scenario that sounded very grim.

7. The mother denies that things were as Mr K allegedly reported to the father.  She says that the children have been unilaterally removed by the father to a location of course that is some five to six hours away from her; their schools have been suddenly changed; and that their special medical and other needs have been interrupted:  In the elder son’s case, he suffers from a condition that requires regular occupational therapy and specialist medical attention, both of which were in place in his mother's home.  In the younger son’s case, his needs were overlooked because his kindergarten teacher had specifically recommended that he should be doing another year of kindergarten this year but his father has enrolled him in school. 

8. The mother says that in any event the father and the paternal grandmother (with whom he lives) both work full-time so that the children's care was shared amongst various family members.  There seemed to be some consensus about that.  The mother also expresses some concern about the father and his involvement with drugs, although the father denies that, saying that he does not have a current involvement with drugs. 

9. This case has the not unusual difficulties of two diametrically‑opposed and untested versions.  It would be particularly difficult but for two things.  The first is that Mr K, the catalyst for the father’s alarm being so great that he removed the children from a settled arrangement, has not sworn any affidavit in these proceedings and on this very day he has consented to his daughter, S, living with her mother for something like 12 out of 14 days.  In fact, I made consent orders about it earlier today. 

10. Secondly, the mother's parents have agreed, although it is denied that is required, to ensure that one or other of them stays at the mother's place until this case returns to court, so that the court has that added assurance that the children are in a safe setting. 

11. On those bases, I am satisfied that it is in the children's best interests to live with their mother, as they had done since separation; to return to their school and kindergarten, to return to their various medical and occupational therapy appointments and the other infra-structure of their little lives. 

12. The father allowed them to remain there until he was alarmed by what Mr K, who is not a witness in this case, had said.  I know that Mr K's actions in agreeing to the orders today are unexplained, and I have not been able to get to the bottom of why he might have agreed to them.  But he did, and in the imperfect circumstances of my not having any material at all from Mr K in this case, that is a significant fact. 

13. I also note that the father in this case is willing to allow the children to spend every second weekend with their mother and half of the school holidays; and there was, to my mind, a certain inconsistency with the concern of her very profound lack of capacity to care for the children, and the father's willingness to allow that. 

14. Counsel for the father says that it is more likely to be unsettling to the children if they now return to their mother when they might again return to their father when the matter comes back to court.  However, the recent change for them has been short-lived.  They will be back in what was their normal routine.  There will be excellent family back‑up, and I did not hear any complaint as to how the children would fare with that back‑up. 

15. It is too early to give other more detailed consideration to specific individual factors in section 60CC of the Act.  That will of course be appropriate when the ICL is in place and there is more information to hand about the children's views and other aspects of the parents' parenting capacity. 

DISCUSSION

1. The orders I shall make are as follows:

1.      The Husband and the Wife have equal shared parental responsibilities for the children of the marriage the elder son born in September 1999 and the younger son born in December 2001

2.      Until further order the said children spend time with the Husband as follows:-

(a)    From 6.30pm Friday 30 March 2007 to 6.00pm Sunday 1 April 2007

(b)    From 6.30pm Friday 27 April 2007 to 6.00pm Sunday 29 April 2007

(c)    From 6.30pm Friday 11 May 2007 to 12noon Sunday 13 May 2007

(d)    Thereafter each alternate weekend from 6.30 Friday to 6.00pm Sunday

(e)    From 12 noon Sunday 8 April 2007 until 6.00pm Sunday 15 April 2007

(f)     By telephone each Wednesday between 6.30pm and 7.00pm

3.      The said children shall spend with the wife at all other times as from 6.00pm 23^rd March 2007 subject to either of the maternal grandparents being in substantial attendance.

4(a)  Changeover for the periods referred to in paragraphs 2. (a), (b) and (c) shall be at the McDonalds Family Restaurant at P;

(b) The children shall be collected from K McDonalds at the commencement of the period referred to in paragraph 2. (c) and returned at McDonalds P on the at the conclusion thereof;

(c)   The Children shall be collected at the P McDonalds on the commencement of the period referred to in paragraph 2 (c) hereof and returned at the McDonalds K at the conclusion thereof;

(d)   The children shall be returned to the Wife at 6 pm  on the 23^rd of March 2007 .

5.      Until further order the Husband and Wife and their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said children from the Commonwealth of Australia.

6.The Marshall and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said children’s name on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said children’s name on the Watch list until further order of the Court and the fathers Solicitors shall notify the Australian Federal Police and the Marshall of the Family Court of Australia of these Orders and serve a sealed copy as soon as possible.

7.The said children be separately represented and it is requested that Victoria Legal Aid arrange an Independent Children’s Lawyer.

8.The Husband and the Wife attend upon a report writer nominated by the Independent Children’s Lawyer and follow all lawful directions of such report writer for the purpose of the preparation of a family report to the issues of the issues of interim residence and time, such report writer to have leave to read the Court file and all subpoenaed and released material.

9.The costs of the Family Court shall be borne equally between the Husband and Wife.

10.The proceedings be adjourned to the Senior Registrar’s Duty List at 9.45am on the 15^th of May 2007 for interim hearing.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  22 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PROUSE & PROUSE