Rickett and Gull

[2009] FamCA 805

FAMILY COURT OF AUSTRALIA

RICKETT & GULL [2009] FamCA 805

FAMILY LAW – Children – With whom a child spends time

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Dicosta & Dicosta [2008] FamCAFC 161
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Rickett

RESPONDENT: Mr Gull

FILE NUMBER: BRC 7914 of 2007

DATE DELIVERED: 10 AUGUST 2009

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: MURPHY J

HEARING DATE: 10 AUGUST 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. The hearing of the parenting application is set down for a First Day of Hearing before Justice Murphy at 2.15pm on 12 November 2009 in the Brisbane Registry of the Family Court of Australia.

2. Pursuant to s 11F of the Family Law Act 1975 all parties must attend:

   (a)an Intake Event for the Child Responsive Program at 11.00am on 26 August 2009.

   (b)all future appointments fixed by the Family Consultant and are requested to ensure that the child … born … December 2004 attend all meetings as instructed by the Family Consultant.

3. Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties and the Court.

4. For the purpose of preparing the abovementioned issues assessment, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child … born … December 2004 live with the mother.

2. Ms KN is released from an Undertaking made by her in respect of supervision of time between the father and the child.

3. The child spend time with the father:

   (a)For 3 nights in one week from 5.00pm Thursday night to 5.00pm Sunday night, and each alternate week thereafter;

   (b)For 1 night in the following week from 5.00pm Thursday night to 5.00pm Friday night, and each alternate week thereafter.

4. In addition to the time provided for in the above Order, the father shall spend time with the child for one extended period of 5 nights in a week in which the child would otherwise spend time with her father for a period of 3 nights in accordance with the above Order.

5. The father and the mother shall have telephone communication with the child at a time suitable to the parties between the hours of 5.00pm and 7.00pm on those nights when the child is not otherwise spending time with them, and they shall do all such things as might be necessary so as to facilitate such telephone communication.

IT IS FURTHER ORDERED THAT

1. The costs of both parties of today are reserved.

2. The further hearing of the property application be adjourned for mention before Justice Murphy at 9.30am on 2 March 2010 in the Brisbane Registry of the Family Court of Australia.

3. Should the adjourned mention date of 2 March 2010 not be required, the parties shall notify the Associate to Justice Murphy, by jointly signed email, by 4.00pm on 26 February 2010 and the hearing shall be vacated with orders being made in chambers and no appearance necessary by either party.

4. 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.

IT IS NOTED THAT

The Application in a Case filed on 13 May 2009 by the father and the Response filed on 5 August 2009 by the mother, shall be treated as seeking from the Court final parenting orders in the terms of such Application and Response.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 7914 of 2007

MS RICKETT

Applicant

And

MR GULL

Respondent

EX TEMPORE
REASONS FOR JUDGMENT

1. Prior to the proceedings today, these parties have been involved in significant litigation in this court, all of which has related to what might, in broad terms, be described as financial matters.

2. Today each of the parties seek orders in respect of the parenting of their daughter, born in December 2004.  The child is, then, slightly more than four and a half years of age.  The parties separated after an approximate five year cohabitation in August 2006.  At that time, the child was a baby not yet two.

3. Subsequent to the parties’ separation, they together consulted three social science practitioners with a view to resolving any parenting issues that existed between them.  They consulted Ms L, Mr S and a social worker employed by Legal Aid.

4. There is a dispute between the parties as to whether those consultations were confidential or not.  It seems to me that the appropriate course for me to adopt, in the absence of resolving a contested issue more properly determined at a trial, is to assume that those consultations were confidential.  Accordingly, I have not read any of the evidence relating to things which may or may not have occurred at those consultations.  No reports have been prepared from any of those three social scientists.

5. The parties had been able to reach an informal agreement about the time that the child should spend with her father.  For some time, the father has been seeing the child from 5 pm Thursday until 5 pm Sunday in week one and each alternate week thereafter and from 5 pm Thursday until 5 pm Friday in week two and each alternate week thereafter.  Accordingly, it can be seen that the father has been seeing the child for four nights per fortnight for some time. 

6. In late 2008, the husband experienced a number of psychological or psychiatric issues as a result of which he was admitted to a hospital and as a result of which he has, he asserts, been unable to work since.  In the course of his treatments in respect of those issues, he has been seen by a Dr GR who is a psychiatrist and has been receiving ongoing care from a Dr MA who is a clinical psychologist. 

7. Each has prepared short reports in earlier proceedings.  Specifically, Dr MA says, “There is no evidence that [the father’s] mental health difficulties have impaired his capacity to care for his daughter.” 

8. As a result of these parenting proceedings being heard by the court for the first time, this matter will be introduced to the court’s child responsive program.  The parties will, then, consult with a family consultant attached to this registry on 26 August 2009.  That is, in about a fortnight’s time. 

9. Consequent upon that appearance, a children and parents issues assessment report will be prepared by the family consultant. Subsequent to that, a first day of trial, as that expression is used in Chapter 16 of the Family Law Rules 2004, will be held before me at 2.15 pm on 12 November 2009. That is, in about three months time.

10. The issues before me today, then, revolve around what parenting arrangements might be made between now and the first day of trial on that date.  Four specific issues emerge. 

11. First, should the court make any orders at all given that there is an existing informal arrangement between the parties.  Secondly, should any such orders as are made contain the undertaking provided in March of this year by the father’s fiancée to the effect that she will be present at all times, during the times that the father spends time with the child.  Thirdly, in the second of the two weeks in which the father exercises time to the child should an additional night be provided for that time to occur.  Fourthly, should holiday time be provided to the father between now and then.

12. The restrictions inherent in this court hearing proceedings on an interim basis prior to the opportunity for the court to observe the parties in the witness box, to analyse properly the evidence presented by each of them, and to have their evidence, and the other evidence upon which they rely, tested by reference to cross-examination and otherwise, are well known and have been outlined in many decisions of the Full Court. 

13. I refer in particular to the decision of the Full Court in C and C and in the post-reform Act context, the decision of the Full Court in Goode & Goode. 

14. It is plain from the latter decision, that the Objects, Principles and Considerations mandated to be considered by the court in arriving at orders consistent with the best interests of children must also be taken into account by the court when making interim parenting decisions, albeit within the restricted framework just referred to.

15. I record that I am, of course, acutely aware of the principles enunciated by the Full Court in Goode & Goode and I am equally acutely aware of the Objects, Principles and Consideration set forth in the Act which guide the decision to be made by me. 

16. As to the first of the four issues earlier enumerated, both parties agree that orders should be made in circumstances where there is apparently significant conflict between the parties and a significant degree of dysfunction attaching to their co-parenting relationship.  It seems to me appropriate that I should make orders. 

17. The second of the issues referred to is whether, in effect, “supervision” should attend at the time that the father spends with the child, that “supervision” being brought about by an undertaking given by the father’s current fiancée who resides with him.  The father contends that there is no basis for that undertaking or any “supervision” to continue.  The mother contends that it should.

18. The issue of “supervision”, to the extent that a decision is made on an interim basis, involves the court in a difficult exercise because of the very nature of interim proceedings.  Findings cannot be made finally about risk because evidence in respect of risk has not been properly adduced, analysed or tested. 

19. Nevertheless, within the confines and restrictions otherwise provided, it is incumbent upon the court to not only identify the risk or risks to the extent that the court is able, but to analyse (again to the extent the court is able) the degree of the risk and the nature of the risk that is asserted. 

20. Here, the nature of the risk is, at least to me, somewhat unclear.  The mother contends that the risk emanates primarily from what she asserts to be the failure of the father to disclose, or to disclose properly, medical records and information pertaining to his psychological issues.  The father contends that he has made that disclosure. 

21. Notwithstanding that assertion by the mother, what is plain is that the father has earlier adduced in his case, albeit in a different context to that which is currently under consideration, reports from both Dr MA, his psychologist and Dr GR, a psychiatrist.  I have already referred to the specific comment made by the psychologist who is the clinician who has spent most time with the father. 

22. I am not satisfied that the nature of the risk identified by the mother is, of itself, such as to lead the court into making an order for “supervision.”  An issue, though, which arises, is that even if I assess on an interim basis the nature of the risk to be unclear, whether the undertaking should nevertheless continue in circumstances where it might be seen to do little harm to the relationship between the child and her father. 

23. In answering that question it seems to me I should have regard to the degree of any risk as can be assessed on an interim basis and, as importantly - if not more importantly - how any such risk as might be identified can be ameliorated by reference to other matters. 

24. As to the amelioration of the risk, there seem to me to be a number of matters that are directly relevant to the decision.  First, there are court proceedings between these parties, as a direct result of which the parties (and the child) will have access to social science expertise within a fortnight.  That intervention by a specifically-trained expert is, it seems to me, directly relevant to determining the extent of any risk there might be in respect of the time that the father spends with the children.

25. Secondly, the father must know, as indeed must his fiancée know, that the eyes of a very vigilant mother will be upon the time that the child spends with him. 

26. Thirdly, the mother suggests in her own case that the father’s fiancée Ms KN “supervise” the time, and it must be accepted, then, that the mother considers Ms KN an appropriate person to safeguard the best interests of the child from all such risks as might present themselves during time that the child spends with the father.  Ms KN’s presence in the father’s household, for what is highly likely to be most of the time that the father spends with the child, is in my view a very significant matter in ameliorating such risk as exists with respect to that time.

27. Finally, it seems to me that the foundation advanced by the mother with respect to the asserted risk is, in light of such evidence as is available to court on an interim basis, somewhat thin.  It seems to me that, although it might be perfectly understandable for the mother to have concerns about her child in the presence of someone who has had apparently significant psychological issues, the evidence before the court suggests that such psychological issues as have occurred are currently well-managed by expert intervention, including medication and do not present a specific risk to the child.

28. Thus, in my judgment, the balance in these interim proceedings favours Ms KN being released from her undertaking. 

29. The next issue which falls for determination is whether this court, on an interim basis, should order time additional to that which has marked a significant proportion of the post-separation parenting of the child by the parties. 

30. It is sometimes said that the nature of an interim hearing is such that, as a matter of principle, the court should be reluctant to make changes to existing circumstances other than in the most compelling of cases.  For many years, that assertion has been commonly referred to as “the status quo.” 

31. The proposition just expressed, if it exists as a principle at all (and if it has ever existed as a principle at all) does not exist to the exclusion of an appropriate consideration, albeit within the restrictions just referred to of the relevant statutory objects, principles, and considerations.  It seems to me that the Full Court, in Goode & Goode made that abundantly clear. 

32. Our system, with all its flaws - inherent in a human decision about something as complex and difficult as the best interests of children - provides for but two methods for resolving a parenting dispute.  The first, and by far the most preferable and best for children, is that their parents agree.

33. The second is a hearing at which evidence is given, tested, analysed, and ultimately decided upon by a court.  Interim hearings, such as the one today, do not fit that description.  No pretence can be put up that issues are properly explored at an interim hearing, save where clear and uncontroversial facts allow that to occur (in respect of at least some issues). 

34. It is not appropriate, in my view, to pay lip service to the principles governing these forms of hearing.  As well as recording my cognisance of the statutory considerations, objects, and principles, and the decision of the Full Court in Goode & Goode, I should also record, I think, that I am aware of the decision of the Full Court in Dicosta & Dicosta, and in particular what the Full Court there said with respect to what is sometimes called the “status quo factor” and the relevance in the context of current legislative provisions of changes of circumstances, separation of a child from a parent, and the like.  I have in mind, in particular, paragraphs 34 and 35 of that decision of the Full Court. 

35. Even on the interim evidence before me, it seems clear that the mother might be described as an anxious mother, who is very concerned about the child’s best interests.  Having said that, such concerns as she has have seen the child spending the periods of time with her father that I have referred to. 

36. I am concerned about upsetting those arrangements, given that I must take account of the changes to existing arrangements, with respect to a child not yet five.  That factor can be seen to be highly important in interim proceedings.

37. That is all the more so in circumstances where I am aware that the parties and the child will see a trained professional in under a fortnight, and where the court will have access to the issues emanating from those consultations, from an expert family consultant within three months. 

38. On balance, it seems to me that, in that three month period I ought not disturb the week to week time that the child spends with her father. 

39. As a separate matter, however, the father contends that he has spent no holiday time with the child during the time that the parties have been separated.  Holiday time might be thought to have less meaning for the child from the point of view that she is not yet in a “week versus weekend” routine that flows from the commencement of schooling.  In a similar vein, her father has, in the last few months, not been subject to the day to day routine of remunerative employment by reason of the health issues earlier referred to.  Those factors, together with those earlier mentioned, point against, it seems to me, there being a period of holiday time in the three month period to which I referred. 

40. As against that, however, I am acutely conscious of what the legislation says about the extent of the meaningful relationship to be enjoyed by children with both parents to the extent consistent with their best interests and the opportunity for children to have both parents participate in all aspects of their lives. 

41. It seems to me that it is in the child’s best interests that she spend at least one period of extended time, which I will call holiday time, between now and the matter being returned to the court on 12 November.

42. Pending the further hearing of this matter and the receipt of the Children’s and Parents Issues Assessment Report, earlier referred to, I do not propose to make any other orders in respect of the interim application sought, and the application in the case filed by the mother or father in these proceedings.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date:  1 September 2009