Rass and Harkin

[2007] FamCA 896

FAMILY COURT OF AUSTRALIA

RASS & HARKIN [2007] FamCA 896

FAMILY LAW – CHILDREN – Contested welfare proceedings – Children living with father for several years – Background of alcohol/drugs and intervention of DHS – Matter resolved with assistance of Family Consultant

Johnson v Johnson (2000) 201 CLR 488

APPLICANT: Ms Rass

RESPONDENT: Mr Harkin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 8940 of 2007

DATE DELIVERED: 16 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15-16 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Hale & Wakeling

COUNSEL FOR THE RESPONDENT: Ms Mansfield

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ryan Carlisle Thomas

Orders

1. That all previous parenting Orders be discharged.

1. That the father and the mother retain equal shared parental responsibility for the children:

   …, born … June 1992; and

   …, born … November 1995

   including equal responsibility for the making of decisions regarding long-term issues in respect of the children.

1. That each of the father and the mother be responsible for making day to day decisions concerning the welfare of the children whilst they are in their respective care.

1. That the children live with the father.

1. That the children spend time and communicate with the mother as follows:

   (a)In each alternate weekend, commencing 19 August 2007, from 10.00 am until 5.00 pm on Sunday, for 6 occasions, such time to be spent in the G area.

   (b)In each alternate weekend, commencing 4 November 2007, from 9.20 am until 3.45 pm, on Sunday, for 4 occasions, such time not to be restricted to any defined area.

   (c)Commencing on Saturday, 5 January 2008, in each alternate weekend from 10.00 am Saturday until 3.45 pm Sunday, for 6 occasions;

   (d)On the weekends of 28 March 2008 and 4 April 2008, from 4.30 pm Friday until 3.45 pm Sunday;

   (e)During each school term, in each alternate weekend from 4.30 pm Friday until 3.45 pm Sunday, commencing on 11 April 2008 (with such times being suspended during school term breaks and the long summer holidays, and resuming on the first weekend of each school term);

   (f)Commencing in the Term 2 break of 2008, and in all subsequent term breaks, for one half of break as may be agreed between the parents in writing, and in default from 11.00 am on the first Saturday of the break until 11.45 am on the mid Sunday of the term break;

   (g)For one half of the long summer holidays, commencing in the 2008/2009 holidays, as may be agreed in writing between the parents, and in default as follows:

   (i)For one half of the 2008/2009 holidays, and alternating in each year thereafter, commencing at 11.00 am on 24 December; and

   (j)For one half of the 2009/2010 holidays, and alternating in each year thereafter, commencing at 11.00 am on 26 December.

   (h)On Mother’s Day, in the event such occasion does not coincide with a time when the children are otherwise in the mother’s care, from 4.30 pm on the Friday prior to Mother’s Day until 4.45 pm on Mother’s Day; SAVE that in the event Father’s Day coincides with a weekend when the children are in the father’s care then such weekend be suspended (except in 2007 when the mother’s scheduled time shall be substituted to Saturday, 1 September 2007 between 10 am and 5 pm).

   (i)By telephone each Wednesday from 7.30 pm until 8.30 pm, with the mother to initiate such calls to the children on the father’s telephone number, and for such purpose the father shall forthwith advise the mother of his contact numbers and shall otherwise ensure that the mother is updated as to any change to such contact details.

   (j)At such further and other times as may be agreed between the parents in writing.

1. That for the purpose of changeover pursuant to paragraph 5 herein, such changeover shall occur as follows:

   (a)With respect of paragraph 5 (a), changeover shall occur at B Centre;

   (b)With respect of paragraphs 5 (b) to (h) the mother shall collect the children from B Centre at the commencement of all such periods, and the father shall collect the children from the Hungry Jacks at S at the conclusion of all such periods;

   (c)That in the event B Centre is not available for changeover, then changeover shall be effected at the G office;

   (d)At such other place as may be agreed, in writing, between the parents.

1. That the father forthwith authorise the children’s school to provide to the mother, at her expense, copies of all material and information (including school reports, school newsletters, and other like material) ordinarily provided to parents, and for such purpose the mother be at liberty to provide copy of these Orders to the school principal/s.

1. That the mother be further authorised and be at liberty to attend and participate in the children’s school activities and events (including parent / teacher interviews, school performances, sports days, and other like events) where parents are ordinarily invited; AND the mother be at liberty to attend at all other extra-curricular events (including little athletics for the younger child) where parents are ordinarily invited, and for such purpose the father provide to the mother advance details of any such scheduled extra-curricular events.

1. That each of the parents keep the other advised, as soon as practicable, of the following:

   (a)Any change to their residential address or telephone contact details;

   (b)Any serious illness or injury suffered by the children (or either of them) whilst in their respective care;

   (c)The name of any medical or health professional involved in the children’s care, together with details of any scheduled appointments for the children (or either of them), AND each parent be at liberty to attend any appointment relating to the children, and to further discuss with such medical or health professional all issues relating to the children’s progress and treatment.

2. That each of the parents, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.

1. That each of the father and mother, and their servants and agents, be and are hereby restrained by injunction from discussing these proceedings with or in the presence or hearing of the children (or either of them), and from permitting any other person so to do.

1. That the older child be forthwith enrolled, and each of the parents do all things necessary to ensure the child’s attendance at the G School.

1. That each of the parents forthwith:

   (a)Do all things to continue and facilitate counselling for the younger child through B Centre, or such other organisation as may be directed by the B Centre, to assist the younger child in her relationship with her mother; AND the mother be at liberty, at the counsellor’s discretion, to be involved in and appraised of the progress of such counselling;

   (b)Do all things to enable and facilitate the older child to undertake assessment at CAMHS in relation to treatment and counselling with respect of any mental health and / or behavioural issues relating to the child; AND each of the parents be at liberty, at the discretion of the counsellor or Director of such service, to participate and be involved in such counselling or treatment;

   (c)Do all things to enable the parents to engage and participate in counselling, through B Centre, aimed at improving the parent’s capacity to communicate with the other

   AND for the purpose of sub paragraphs (a) to (c) above, solicitors for the father forthwith provide to such persons or organisations referred to therein copies of the family reports by Dr N, respectively filed 7 April 2006 and 17 July 2007.

1. That, as soon as practicable, the mother provide to solicitors for the father copy of Mr B’s police criminal record, noting that the mother advises that she is aware of drug and alcohol offences relating to Mr B; AND solicitors for the father are otherwise not to make copy of such criminal record available to any other person.

1. That pending the production of Mr B’s criminal records, the mother shall ensure that Mr B does not participate in time spent with the children.

1. That Pursuant to Section 65L of The Family Law Act 1975 compliance with these parenting orders is to be supervised by a family consultant nominated by the Manager Child Dispute Services of the Melbourne Registry of the Family Court of Australia; AND such family consultant shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation compliance with, and the carrying out of, the parenting orders, for a period of 12 months, and the family consultant be further at liberty to provide a report to the Court upon request by the Court.

1. That all extant applications be otherwise dismissed, and the proceedings be removed from the active pending cases list.

1. That the appointment of the Independent Children’s Lawyer be discharged.

1. Certify that pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES:

A.That the older child has been in the mother’s care and it is agreed that she shall return to the father’s care this day.

B.Both parents are reliant on public transport and the provisions in these Orders reflect available public transport timetables.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Rass & Harkin.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8940  of 2007

Ms Rass

Applicant

And

Mr Harkin

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in a Standard Track List of Defended Cases concerning the welfare of two children, the older daughter born in June 1992 and the younger daughter who was born in November 1995.  The background to the dispute has been adequately detailed in the affidavits of the parties. 

2. The father and the mother commenced cohabitation in about June 1990.  Following unhappy differences between them they separated in June 1996.  The two children were born during cohabitation.  The father has a son from a previous relationship, who was born in July 1987.  The mother has a daughter from a previous relationship, who was born in March 1988.  Both the father’s son and the mother’s daughter resided with the mother and the father, together with the couple’s two daughters  throughout the term of their cohabitation.

3. The parties suffered severe difficulties following their separation which involved the intervention of the Department of Human Services.  For example, at the time of separation all four children were in foster care.  The mother obtained Family Court orders for residence of the couple’s two daughters (“the children”) on 22 October 1998.  The father had contact with the children.  Subsequently, for reasons set out in the mother’s affidavit, she consented to an arrangement whereby the two daughters were placed in the care of the father.  At that time, she was on a methadone program and, as deposed to by her, “… was suffering acute symptoms and withdrawal coupled with the ongoing effects from surgery”.  Thereafter, the mother suffered a series of problems including a continuation of psychiatric and alcohol difficulties. 

4. Essentially, the children have been in the sole care of the father since about April 1999 and, as deposed to by him, the mother had very little contact with them since that time.  The affidavits of both the mother and the father describe a tragic situation.  In his affidavit, the father made it clear that he had no objection to the children having a relationship with their mother, was in favour of it but was of the cautious view that it should be taken at an appropriate “slow speed, considering the maturity of the children and the mother’s history”.  It was within that background which had been adequately described by the father and the mother that the proceedings commence before me. 

5. I have had the advantage of reading the reports of Dr N, the single expert engaged in these proceedings and the affidavits of each of the parties.  Her first report was dated 24 March 2006.  I thought that both of her reports were extremely helpful and insightful.  Under the heading of Summary and Recommendations, Ms N reported that it appeared the father and both the children were agreeable to moving to a “graduated regime of unsupervised time” with the mother.  She said that the mother had, over the last 13 months showed “commitment and responsibility to the children” which had been of great concern to Dr N at the time of her previous assessment.  She emphasised the implementation of regular and periodic mediation between the parties ensuring a development of communication and the formulation of consistent strategies, but particularly dealing with the older child.  In the course of her second report, she had this to say:

   “While I consider that the girls will greatly benefit from having extended and more meaningful time with their mother, there are however some qualifications, the first being that I consider that [the younger child] will continue to test her mother’s commitment to her.  While I have spoken to [the younger child] at length the risks of continually challenging her mother in order for [the mother] to prove her love and commitment to her and although very understandable, is ultimately a strategy that is potentially very damaging to their relationship.  Therefore I would recommend that some counselling assistance be sought for [the younger child] to provide her with the forum to discuss her feelings about her mother.  [The mother’s] inclusion in such therapy may also be beneficial at some point. 

   The second and more concerning aspect is that [the older child] is also likely to test her mother’s capacity to contain her if their time is unsupervised.  I would expect that [the older child] is at least equally likely to run away from her mother as she does from her father.  Notwithstanding the grave risks to [the older child] from such behaviour, I would also expect that such action would increase the conflict between her parents and destabilise the whole process including [the younger child’s] relationship with her mother.  While seeing more of her mother may alleviate some of the underlying psychological disturbance [the older child] feels and which appear to contribute to her behaviour, such as feeling unworthy of respect and her poor self esteem, I consider that the physical risks to her through her impulsive behaviour should take precedence.  In addition there is certainly some validity in [the father’s] reservations about [the older child] being in even greater danger in Melbourne, as seen by her being alone on the streets at night being followed as had apparently occurred before my previous assessment.”

6. The contested applications were called on for hearing yesterday morning and following discussion with Mr Marchetti of counsel, who appears for the mother, Ms Mansfield for the father, Mr O'Connell for the Independent Children's Lawyer, the proceedings were stood down for the parties to undertake meaningful, sensible and dignified discussions in order to compromise the dispute.  The importance of consensual agreement was highlighted by the fact that [the older child] had again run away from home, and this time had, as I recall it, gone to the home of the mother.

7. The factual issues per se in this matter were not particularly complicated in which circumstances I had the opportunity to express a preliminary view. See Johnson v Johnson (2000) 201 CLR 488. It is clear to me that the parties have laboured hard in the negotiation process, with their professional advisors and have, in the result, come to an agreement. They are to be congratulated. It is far better that parents in situations such as this ordain the future direction of their children, rather than have it dictated to them after the trial process by a judge in a schoolmasterly manner. I congratulate the parents in having the dignity, the commonsense and the mutual respect in coming to this arrangement. I wish them both the best for the future and that the children thrive within the umbrella of their care and the parameters set out in the proposed orders.

8. An important aspect of orders is that of mutual respect.  Court orders such as this, being both complex and detailed can be easily sabotaged by stubborn resistance to goodwill with sensible flexibility being lost in the heat of argument.  It causes anger and angst.  That should not happen.  These are orders that must be obeyed and respected.  That demands a thorough and deferential attention by each of the parties to the content of the arrangements they have ordained this day.  That is my expectation.

9. I appreciate that the past has been an extremely testing one.  The problems beset by the parties were graphically described in their respective affidavits.  They have had the assistance of Ms N who has, as I said, delivered a perceptive report.  The parties have now had the benefit of lengthy negotiation with experienced practitioners.  Now is the opportunity for each of them to move forward recognising the best interests of the children as the paramount consideration.  This will require understanding, patience and mutual support.  I propose to make the orders sought. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  27 August 2007.