Reiner & Reiner (No. 2)

[2007] FamCA 1241

FAMILY COURT OF AUSTRALIA

REINER & REINER (NO. 2) [2007] FamCA 1241

FAMILY LAW – CHILDREN – Father seeks order for 4 year old child to travel overseas for holiday – Mother opposes

FAMILY LAW – CHILDREN – Family Report – Father seeks second family report

Family Law Act 1975 (Cth)

APPLICANT: Mr Reiner

RESPONDENT: Mrs Reiner

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 1284 of 2007

DATE DELIVERED: 4 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Aughtersons

COUNSEL FOR THE RESPONDENT: Ms E.M. Swart

SOLICITOR FOR THE RESPONDENT: Ann E Gambetta & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr D. Schetzer

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Pearsons Schetzer & Associates

Orders

1. That the parties shall attend a Conciliation Conference in relation to property issues at 9.15am on 19 October 2007.

2. That the Independent Children’s Lawyer shall request the Family Report writer Mr S to add to his report by dealing with the issue of the child’s school readiness, by 9 November 2007, and that the parties shall each pay half his expenses, and Victoria Legal Aid is requested to meet the wife’s share.

3. That the husband's Application in a Case filed 5 September 2007 and the wife’s response filed 1 October 2007 shall be otherwise dismissed.

4. That the wife’s and the Independent Children’s Lawyer’s costs of this day shall be fixed for each one at $775 and reserved.

5. That there shall be a transcript of my Reasons for Judgment given this day and it shall be retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1284 of 2007

MR REINER  

Applicant

And

MRS REINER  

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parents in this case are mid-way through what appear to be strongly contested and complex parenting proceedings about their 4¾-year-old son, J.  There are two issues before me today arising from the husband's Form 2 application. 

2. The first issue relates as to whether or not there should be a second Family Report ordered from a different report writer before the matter returns to court before Senior Registrar FitzGibbon for some consideration of interim orders on 15 November.

3. The second issue relates to whether or not the husband should be permitted to take little J to the United States for a four-week holiday this coming Australian summer.

BACKGROUND

1. The husband is a 36‑year‑old teacher born in the United States.  He came here about six years ago at about the time the parties married.  The wife is 31 and is engaged in home duties.  She has three children from a previous relationship, aged 15, 13 and nine.  They live with her and spend time with their father.  These parties married in November 2001.  They separated earlier this year in March 2007. 

2. The proceedings started in this court with an ex parte application by the wife on 29 March 2007, seeking an interim Watch List order.  That Watch List order is in place.

TRAVEL TO THE UNITED STATES

1. Let me deal with the second issue first.  It has just been argued.  The husband wants to take the child to visit his family in the United States from 15 December 2007 to 15 January 2008.  The child is fortunate enough to have an American as well as an Australian heritage and when the parents were together they were obviously keen to pursue that part of the child's heritage for him, and to ensure that he had the benefits of extended family in America.  They made several trips there as a family. 

2. The husband says that I should take into account that the United States of America is a “Hague Convention country”, there are property proceedings pending in Australia which would be good reason for him to be keen to return, and he is prepared to offer an $80,000 security to assuage any fears of the mother that he will not return.  He is also prepared to go for a shorter period to meet her concerns that 4½ weeks is too long for the child to be away from his mother.  He is prepared to arrange daily video links between the child and his mother.  He is prepared to fly the mother to the United States for a one-week period in the middle of the time that he is there with the child.  He has been offering all these concessions bit by bit to try to answer the concerns raised by the mother. 

3. The mother’s level of anxiety, according to her counsel, is high.  She has two major concerns.  The first is the length of the trip.  This child has never been away from her for more than seven nights and she says that when he was away for seven nights he became anxious towards the end of the period.  Ms Swart on her behalf points to the final part of the recommendations of the Family Report writer in which he expresses the opinion that there needs to be a settled pattern for the child, living predominantly with his mother, and seeing his father on a regular specified basis every second weekend plus one weeknight on the alternate week.  The report writer is saying at this point that arrangement should continue across all holiday periods, as "developmentally this will provide an appropriate level of consistency for the child at his current young age".

4. I am conscious that the Report is disputed and I will return to that in a moment, but it is still a relevant document in the light of the submissions currently being made. 

5. The second major concern put by the wife is that the husband will not return the child to Australia.  Her counsel refers to the lack of trust between the parties at this stage.  It is not hard for me to accept that, given what I have seen in the crossfire of their affidavits, even at this early stage, and just about preliminary matters.  I can also accept that this is something that the wife has consistently said is of a concern because, as I have noted, it is how the proceedings started.  The very first application was her ex parte request for a Watch List order.

6. The surety of $80,000 is far more generous than the surety that was offered previously.  The wife concedes that.  But she still says that it is insufficient. Given the level of dispute in this case, the husband might nevertheless, with family support once he is in America, succumb to the temptation to stay there. 

7. The Independent Children’s Lawyer, (the ICL), who is making every effort to maintain as balanced an approach as possible, clearly not having formed final views about either party or what should ultimately occur in this case, submits I should “err on the side of caution” and put off travel until the arrangements between the parties are more settled.  That is, defer it at present until things are more settled and until the child is old enough to cope with being apart from his mother for an extended period.

8. I do not propose allowing the trip at this point.  I think it is early days.  It is not only early days, but very, very unsettled days.  This little boy is in the middle of what, unfortunately for him - unless something happens to divert the parents from this course - is shaping up to be a very hotly disputed case with all the rigours and the heartache for both his parents and most particularly for him. 

9. I am going to, as the ICL put it, take the cautious approach at this stage, from two perspectives.  First, I would not be tempted to have a four‑year‑old - he will be five at the time of this trip - go away from his mother for the length of time as proposed.  He has never been apart from her for that length of time.  Secondly, given the preliminary indication I have by way of a report, and given the very poor level of relationship between his parents, there is sufficient in this situation to alarm the mother about whether the father will return. 

10. The husband has only been in the country six years.  He has no other children or relatives here.  He is clearly close to his family in America.  He is not an Australian citizen.  He is a teacher which I presume would mean - and I have not been addressed on this specifically - but I could probably take judicial notice that he has transportable professional skills.  I will not put too much emphasis on that.  There seems to be an admission that in the past he was keen to return to live in America.

11. In the uncertain situation at present, this is a trip that can and should be deferred.  The sort of money that he is intending to spend, including the offer to give a ticket to the child's mother, might well be spent in other ways, for example to bring some family members to visit if he so chooses.

12. I emphasise this is not a long-term decision.  In the long-term, ideally this child will be able to enjoy his family in America.  That should be the case. 

ANOTHER FAMILY REPORT

1. The report was prepared by Mr S on 27 July 2007 after he had seen the parties, the child, and the wife's other children, and spoken to a number of professionals who have been involved with the parties.  It is a 15-page, closely typed report. I have been handed Mr S' qualifications.  No-one has taken any issues with those and the qualifications on the face of them appear to be extremely suitable and appropriate for the preparation of a Family Report. 

2. The husband says that he now wants another full Family Report prepared because he has "lost confidence" in Mr S.  That is a direct quote.

3. Paragraph 9 of the husband's affidavit filed on 5 September 2007 sets out in very great detail the litany of complaints that he has against Mr S.  They range, as Mr Wilson his counsel has sensibly conceded, from relatively minor, to what is submitted to be more serious. 

4. At the less serious end of the spectrum is a complaint that Mr S spent considerably more time with the wife than with the husband.  The wife disputes that and says that in fact the report writer spent pretty much the same time or a more equal time with each party.  In any event it does not assist me greatly.  It is impossible to speculate as to why an expert person preparing a report might ultimately spend more time with one party than another.  It might be that the report writer takes more issue with the party with whom he takes longer, it might be that that person is the harder to draw in terms of discussion, or it might be that he was listening more to one person.  The only person who can provide the answers is the report writer himself in due course.

5. Mr Wilson helpfully distilled the enormous amount of detail of the complaints about the report into three principal deficits. 

6. First, that the report does not assess the wife's ability to control or look after her children, in the sense that Mr S did not speak to a particular counsellor, a Mr B, who according to the husband, is absolutely the integral person to speak with because he dealt with the family over an extended period between 2005 and 2006. He complains that issues and documents connected with that counselling have not been referred to by Mr S as having been taken into account. 

7. Secondly, Mr S has not made an assessment of the psychological effect on the child of what the husband asserts is the wife's violence to the husband and the other children (she does not concede she has been violent to the other children), and a suggestion of violence between the older children and the child J.

8. Thirdly, Mr S has not made an assessment of the child's school readiness for next year, the husband wanting the child to start school next year and the wife apparently wanting his school commencement to be delayed.

9. The wife, for her part, says it is simply a matter of the husband being unhappy with the report because Mr S’ ultimate recommendation was more in line with what she was seeking and opposed to what the husband was seeking. In addressing the three principal deficits as raised by Mr Wilson, Ms Swart for the wife said that so far as Mr B is concerned, her client's instructions are that in fact Mr S has spoken to a counsellor who worked with the family subsequent to Mr B.  Her recollection is that the family dealt with Mr B a much longer period of time ago than is asserted by the husband. 

10. In any event she says that Mr S still has the relevant information that the husband would want him to have because when he spoke to the more recent counsellor, Mr V, Mr V conveyed to Mr S the precise details that the husband was concerned that Mr S had not obtained from Mr B - about the wife's parenting style and about an agreement between the parties as to the wife's parenting style. So even without talking to Mr B, Mr S had obtained the very information that the husband was concerned about.

11. The second issue relates to the question of violence. The husband had been particularly concerned that there was a doctor's certificate about some bruising on the child's leg. The report did not give any indication as to the possible cause. I was shown an annexure of what purported to be “progress notes” produced by the doctor, with some suggestion that what the doctor was told in any event was that these bruises were sustained when one of the other children kicked the child. I have to say it is not at all clear as to who told the doctor that, or whether the doctor had any view about it.  They are typical, if I can say that, and I do not mean that in a disparaging way, medical progress notes. They simply record:

    Father brought [child] today.  Was kicked on the left leg by his brother Friday afternoon.  There was bruising and some pain. 

    There was some further description.  It is a little bit hard to make head or tail of that. 

12. In any event, Mr S, when he first wrote the report, did not refer to the doctor's report. He did in a subsequent addendum but then he did not refer to the progress notes.  It might well have been that he did not have the progress notes.  But I agree with the submission for the wife that they do not in themselves take the matter significantly further.

13. So far as the third principal deficit raised by Mr Wilson is concerned, counsel for the wife agrees that there should be a report in relation to the child's school readiness. So does the ICL. 

14. The ICL opposes any further report.  He is concerned that it can get to the point of forum shopping.  Still, he is not dismissive of the husband's concerns, again maintaining a very reasoned approach in the middle, acknowledging that there will be questions asked about various aspects raised by the husband, in due course.

15. The ICL does not have the benefit of any additional information from the report writer as he has been precluded thus far from speaking with him.  He is not sure of what documents were seen by Mr S or why he spoke to Mr V and others, but not Mr B.  But the ICL raises something that is of particular concern to me, and that is that there might well be a further report as this case gets closer to a final hearing, so for the child and the other children and the parties to be put through another round of interviews now is simply not reasonable. 

16. I do not propose ordering a new report.  There is a thorough report.  I cannot form any views as to whether the expertise of that witness should ultimately be brought into question or whether his report will stack up as a very significant piece of evidence or not, when the matter is finally heard in its entirety.  In the meantime, there may well be issues that can be raised about it.  That can be done in front of the Senior Registrar. 

17. For present purposes the pressing consideration for me is that I cannot simply keep ordering reports because a party wants to raise issues about a report.  Again I must be cautious, making sure that the children, particularly the child J, who is the subject of these proceedings, are protected from being interviewed over and over again.  

18. There are a couple of issues that we do need to address in the orders. One is that there seems to be a consensus that the school readiness issue should be addressed.  Mr Wilson suggested that the issue should be addressed by another report writer.  I made it clear in the course of argument that I do not see that as a simple discrete issue.  Mr S has an overview of each of the important people in the child's life.  I must say he describes the child in glowing terms and I do not think the father disagrees with that part.  Mr S is in the best possible position to assess this last aspect, most likely, I would imagine, without having to interview the child at all.  If he needs any further information, and I am not sure he will, it is more likely to be from either the parents and/or a kindergarten teacher or adults, not the child.

COSTS

1. Costs are determined under s 117 of the Family Law Act 1975 (Cth). Each party generally bears their own, but at the court's discretion, taking into account the range of matters set out in s 117(2)(a), an order for costs can be made.

2. In this case both the ICL and the wife are funded by Victoria Legal Aid.  That is something I must take into account.  But equally I must take into account that it is a valuable community resource and secondly, it is a limited resource to both the wife and the ICL, and I would not want to see it wasted by applications that should not be brought between now and an ultimate hearing.

3. Having said that, and having observed that the husband has been wholly unsuccessful.  I will not make a costs order today.  Insofar as the request for a new Family Report is concerned, I will not order costs because I think costs should be reserved until the trial Judge knows more about this particular report once it is tested. 

4. I have not been told that the husband has made a habit of bringing these applications.  Certainly, were he to bring another application considered to be inappropriate or wholly unsuccessful, then it is likely that specific costs will be ordered against him. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  4 October 2007