Rittman and Rittman and Anor

[2009] FamCA 582

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN AND ANOR [2009] FamCA 582

FAMILY LAW – CHILDEN – With whom a child lives

APPLICANT: Mr Rittman

FIRST RESPONDENT: Ms Rittman

SECOND RESPONDENT: Mr Clarence

FILE NUMBER: BRC 2571 of 2009

DATE DELIVERED: 12 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 11 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waterman of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Harrington Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Ms Brasch of Counsel appeared for the First Respondent Mother

SOLICITORS FOR THE FIRST

RESPONDENT:

Pippa Colman & Associates

SOLICITOR FOR THE SECOND

RESPONDENT:

Mr Barber, Solicitor of Ferguson Cannon Lawyers appeared by telephone link for the Second Respondent

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. As from 13 June 2009, the Father is to spend time with the child, O, born … January 1999, each Saturday and Sunday from 7.00 am until 7.00 pm.

2. The Mother and the Father may agree in writing to alter the times that the Father is to spend with the child.

3. Changeover is to occur as agreed between the parties in writing but failing agreement at the residence at which the child is then residing, with the Mother to advise the Father by text message or email not less than twenty-four (24) hours before his contact period of the address at which the child may be collected and returned.

4. The Mother and Father have joint parental responsibility for the day to day care, welfare and development of the child.

5. In the event the child attends the school camp in June 2009 the Father is permitted to attend with her.  The Mother is not permitted to attend the school camp during such period.

IT IS FURTHER ORDERED THAT:

1. All parties to file and serve any further material by 400 pm on 10 July 2009.

2. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2571 of 2009

MR RITTERMAN

Applicant Father

And

MS RITTERMAN

First Respondent Mother

And

MR CLARENCE
Second Respondent

REASONS FOR JUDGMENT

1. The parties in this litigation are the parents of two daughters; L aged 14 and a half, and O 10 years of age. 

2. L is currently boarding at a secondary school in Melbourne.  There is no communication at the present time between L and her father.  I gather that the communication between L and the mother is limited to telephone communication.  I am not suggesting for one moment that the interests of L are not significant but it has had little impact in relation to the matters that I have to consider at the present time.

3. The parties separated on New Year's Day this year.  It is common ground that O has a serious medical condition which requires special attention for her wellbeing.  There are a considerable number of medical reports detailing O’s medical needs set out in the annexures to the affidavits which have been presented.

4. It is common ground between the parties that there will be a further hearing in this matter before myself on 20 July 2009.  That is a duty list day.  Any material to be relied on I will be directing it is to be lodged no later than Friday, 10 July 2009.  Do not even contemplate coming to Court with any material filed after that date.

5. The issues on that date will revolve around sole use of the former matrimonial home and what interim arrangement should be put in place in relation to the children. 

6. The issue that I am confronted with today is what arrangements should be put in place between now and 20 July, a period of just under six weeks.  The mother was unable to attend Court yesterday as O had been in hospital having suffered seizures on a number of occasions in the last few days.

7. The father's initiating application was filed on 24 March this year.  In that document he seeks orders by way of property settlement and also parenting orders.  The orders that he seeks in relation to the child-related issues are the same both on an interim and a final basis; namely that the children live with the father. 

8. In relation to O he seeks that the child spend time with and communicate with the mother as agreed between the parties, but failing agreement each alternate weekend from after school Friday to before school Monday.  That is one week.  In the alternate week from after school Wednesday to before school Thursday.  Also provision for half holidays and special days.  That equates to the child having 10 nights with her father and four nights with her mother in any two-week period.

9. In the submissions made on yesterday's date draft orders as proposed by the father on 11 June were handed up and amongst the orders that are sought, as I understand it, the father proposes a shared regime of week-about in relation to each of the parents.  Paragraph 6 says O shall live on a shared-care regime between the parents' residences with the changeover date to be a Thursday, and if not during school-term to occur at 4.00 pm outside the T Post Office.

10. Why there should be week-about for six weeks, then alternating to 10 days to the father and four days to the mother was not adequately explained.  I canvassed that issue and I was informed that come 21 July the father would be pressing for a ten night/four night fortnightly regime with the child spending the greater period in his care.

11. The evidence would indicate that by any measure the mother has been the primary caregiver for O, certainly over more recent times.  It is again not satisfactorily explained why, if this be the case, my assessment of the limited opportunity I have had to canvass the evidence to date why the father should have the care of O for more than 70 per cent of the time. 

12. The parties are in conflict on a considerable number of issues involving both property settlement and children's issues.  There is a great deal of sadness about the matter.  There is a great deal of pain which, on reading the material, is almost tangible. 

13. The parties do not seem to be undertaking any strategies involved in reducing or minimising the conflict and it would be my strongest recommendation to the parties and to their legal practitioners that this road should be the avenue that is investigated as more beneficial an outcome for the children rather than the present high-level conflict which is evident in the tone of the letters between the legal practitioners and the material that is to be found throughout the lengthy affidavit material.

14. The father's case is that prior to separation the parents shared the parenting of O.  I am fully appreciative of the fact that I am only dealing with the matters on the papers after an abbreviated hearing, but as I have indicated, on the material presented the evidence would indicate that particularly in relation to medical care of the child the mother has had the primary role.

15. The wife's proposals are to be found in her response to initiating application filed on 27 April.  The wife in paragraph 2 of that document seeks that the children reside with her mother and O spend time with her father between 12 noon and 2.00 pm each Saturday and Sunday upon the father undertaking to supervise O personally and carry oxygen with him at all times.

16. By the time of yesterday's hearing the mother's proposal had become even more draconian and that is that the parties take all steps to forthwith enrol in H Centre and the father shall spend such time with O as H Centre can offer being a Saturday and/or a Sunday.  It would seem that in my experience the maximum period allowed by contact centres is two hours; again they seem to have rules that you can only have one day on a weekend, so whether the father is to have two hours supervised a week or four hours largely would depend on what H Centre could offer.  There is no evidence before me that H Centre would be available at the present time.

17. I note in the hospital notes of 23 March 2009 - it is annexure 11 to the mother's affidavit of 27 April - the doctor has noted:

    "I have no concerns in discharging [O] into the care of her mother who appears to be acting and functioning appropriately". 

    Doctor W noted in one of his reports:

    "Over the years my contact in regard to [O’s] management has been exclusively with the mother".

18. The evidence would indicate the parties have engaged in conduct since the date of separation, which can only be termed as regrettable.  This child is a child where a high level of management is required with great care being exercised.  The father lodged a complaint with the Department of Child Safety.  As I understand the material that has been investigated and the complaint found to be unsubstantiated, and then the father follows that up with a letter of complaint about the Department's investigation.  There may be room for legitimate criticism by the father, but he needs to back it up with expert evidence if he is to challenge the reports currently before the Court.

19. For the mother's part there is evidence of the child being taken to the hospital, and because of the existence of mutual domestic violence orders, the mother objecting to the father's presence and telling him he cannot come within a hundred metres of her.  One would have thought that in the circumstances such behaviour was just – to use the vernacular – ‘over the top’. 

20. An assessment was carried out by the family consultant, Ms D.  By any measure that is the most objective assessment of the state of the dynamics between the parties.  I leave to one side the medical reports which, again for present purposes, I accept as expressing objective and accurate opinion.  In the assessment Ms D makes the following observations in relation to O.  This is the final paragraph on page 3:

    "[O] was not interviewed due to her significant special needs.  [O] suffers from Tuberous Sclerosis.  In lay man terms, [O] is intellectually impaired (ascertained level 6); physically impaired (level 5), is likely to have issues with vision and hearing and suffers from Pervasive Development Disorder Non-Specific.  [O] attends [R] Special School (3 days) and [N] State School (2 days).  She is in Grade 5". 

    The mother corrects that to say she is in Grade 6.

    "[The mother] and [the father] described [O] as a loving child who is “enthusiastic for life”.  She participates in swimming, gymnastics, ballet, singing, and horse riding". 

    She has left out the tennis. 

    "It is unknown whether the parental conflict is having an adverse effect upon [O], although, the parents report some changes in her behaviour, such as increased aggression and inappropriateness.  There is a risk however that the quality of care [O] will receive by her parents will be undermined by their conflict and inability to cooperate".

    I can only say that the words being uttered there are words that one hears in so many cases and the truth of what she asserts is, I would have thought, self-evident.

21. In the penultimate paragraph on page 4 of her report she notes:

    "[The father] holds concerns about the status of [O’s] health, alleging that [the mother] possibly exaggerates the severity of her limitations and that she appears to use this as a means of undermining his relationship with her.  He advocates that he is capable of appropriately caring for [O] as he assumed a large proportion of responsibility in performing care tasks when she was younger".

22. And in relation to the mother she note:

    “[The mother], aged 40 years, presented as a woman accustomed to being well-prepared and organised.  She described the violence in the parental relationship as only commencing following separation and held [the father] responsible for instigating it.  [The mother] reports that her biggest concern is the lack of communication between them and the difficulty this places upon planning for their children.” 

23. She goes on to note:

    "[The mother] reports [O] as being highly dependent upon her with respect to addressing her medical needs.  She holds concerns for [the father’s] capacity to meet [O’s] needs accordingly as she alleges he has never been responsible for meeting them.  She is concerned that his inexperience may place [O] at risk of harm which may have dire consequences for [O’s] welfare and wellbeing". 

24. Under the heading Summary she concludes:

    ·“This assessment provides initial expert advice to the family and to the Court about the issues and the children's needs.

    ·[O] and [L], whilst different ages, both have complex developmental needs.  [O’s] needs largely lie with respect to her health (physical and intellectual/ psychological).  [O] is not on par with her development stage and she requires assistance with achieving developmental milestones and sustaining any accomplished progress.  [L’s] needs predominantly lie with her educational development.  [L] is advanced in areas of her development and she requires the stimulation and opportunities in order to make the most of her abilities or risk developmental stagnation.  In simple terms, [L] and [O] are at opposing ends of the developmental continuum.  Conflict, inconsistency, and instability are likely to disrupt [O] and [L’s] equilibrium and undermine their capacity to reach their full potential.

    ·Similarly, any significant structural changes regarding [O] and [L] are likely to have a tremendous impact on the outcome of their developmental achievements and their relationship with their father.  The quality of [O’s] life and [L’s] aspirations to be academically successful will need to remain intact to ensure that they reach their full potential. Conversely, if [L], in particular, spends no time with her father this may have a detrimental effect upon their future relationship and her developing identity.  The Court, in my view, will need to consider the effect of structural change not only on the children's developmental accomplishments but also on their relationship with their father".  

25. The final paragraph:

    ·“Ideally, [L] and [O] would benefit from parents who present a united front and are able to cooperate.  The Court, in my view will need to consider whether there are means for the parents to do this without further fuelling the conflict or increasing the children's exposure to parental conflict".

26. For present purposes I accept the force and accuracy of the assessment provided by Ms D. 

27. In the father's affidavit at paragraphs 11, 12, and 103 it would indicate that since 2007 the mother and the daughters have not resided with him.  However, I would be not accepting of the submissions that it can thereby be inferred that he had no involvement in O’s life.  In a similar vein the father attempted to rely on an affidavit of the mother filed in January in proceedings in the Magistrates Court, which I think again may be an attempt to over-interpret the situation.  I will refer to that briefly in due course.

28. At paragraph 15 of his affidavit the father says:

    "In 2007 and 2008 I stayed at home to look after [O].  I showered, fed, got her dressed and ready and took her to school.  During the day, I did the cooking, washing, housework at [G’s] and garden maintenance at the former matrimonial home at [N].  [O] finished school between 2.30 pm and 3.00pm.  I then fed and changed [O] every afternoon before taking her to her after school activities.  There were usually two activities.  I would then take her home, feed and shower her, play with her and do homework with her and wait for [the mother] to return with [L]".

    It would seem that at this time the mother was attending University; L was attending a high school in reasonable proximity to the university campus.

29. At paragraph 23 of his affidavit the father details O’s very busy weekly routine.  I do not need to place that on the record suffice it to say that the child is involved to a significant extent in extracurricular activities.

30. For her part the mother downplays the father's involvement in O’s life.  A letter from the mother's solicitors to the father's solicitors of 25 February 2009, which is annexure 1 to the father's affidavit, would indicate she has no concerns that the father is capable of caring for O for periods of time.  Her proposal in that letter is that the father would spend a period of time four times a week with the child 7.00 am to 8.00 am each Monday and Wednesday morning.

    "Our client instructs that [O] enjoys a bike ride and exercise is very good for her bowel motions". 

    And then from 7.00 am to around 1.00 pm each Saturday and Sunday with the father to take O to her activities.

31. So her proposals are for four times each week, Monday to Wednesday mornings, and Saturday and Sunday for periods of six hours each.  It is a far cry from the mother's proposals in the proceedings before me.

32. There was an earlier letter of 13 February.  The mother's proposals at that time were that the father would see O each weekday prior to 7.30 am, and again from 7.00 am until 1.00 pm on Saturdays and Sundays. 

33. In the father's affidavit at paragraph 35 he deposes to the fact that he instructed his solicitors to propose that he spend Saturday and Sunday with O from

    
    7.00 am

    to 7.00 pm.  He notes the mother has not been agreeable to this request.  Why the father's aspirations should increase from two days each weekend limited to daytime contact to suddenly wanting equal time again has not been adequately explained, but anything is possible in a conflict such as this.

34. Other than the fact that the parties are not communicating and are displaying considerable hostility to each other I am not satisfied there is anything in the father's recent behaviour which would justify a reduction in his time with his daughter from, say, four days a week to seeing her in supervised conditions at a contact centre for a total of about four hours a week at maximum.  I make full allowance for the events of 1 March this year and 22 March at the hospital.  By the same token there is nothing in the father's material which would indicate that as from 21 July he should have the child for 10 days out of 14.

35. I have considered the mother's filed material together with the numerous annexures.  The mother filed an affidavit in the Magistrates Court under the Domestic and Family Violence Protection Act.  That affidavit is annexure 18 to the father's affidavit.  At paragraph 15 of that document the mother says:

    "For the past three years the pattern of care for the children has been both the husband and I would each care for the children during the school term in different homes at different times.  During school holidays I have been and continue to be the principal carer for both children.  In school holidays, if the children need to be separated because of extracurricular activities then the husband and I adopt the same arrangement as school term, otherwise the whole family is in the [N] property".

36. Paragraph 16:

    "In 2008 the husband has cared for [O] from 3.00 pm overnight to
    9.00 am.  From 9.00 am to 3.00 pm she attends school.  The husband during that time has slept at the home of our friend, [G Clarence], unit […].  [G] has been a friend and supporter of the family for many years and has helped us care for the children".

37. Paragraph 19:

    "On weekends the husband, the children and I all live at our jointly-owned home at [N]". 

38. I have to record that my head is spinning trying to understand where exactly the parties have been residing for the last three or four years.  It seems to be a case of musical houses.

1. Whilst I tend to downplay the emphasis placed on the contents of that affidavit as it was used in relation to domestic violence proceedings I do note that the mother cannot avoid the fact that she has sworn that document and in there she concedes the father has considerable involvement with the children, including overnight care of O.  She cannot have it both ways.

2. I note the contents of the medical report in the matter which is annexure 1 from Dr A, the consultant neurologist from the Royal Children’s Hospital in Brisbane.  That report is dated 27 March 2009.  Again, I do not need to set out chapter and verse all of the medications and all of the symptoms the child suffers.  I do note in that report subparagraph (g):

   "[O’s] condition is chronic and may fluctuate in severity from time to time".

   Subparagraph (q):

   "My involvement has mostly been with [O’s] mother but sometimes she has attended with her father and I have had no problem with their supervision of her treatment".

   Paragraph (r):

   "The main contact for communication has been mother".

3. The child attends school five days a week; three days at a special school at R and two days at the N State School.  She is there, as I understand it, normal school hours.  I have had to read the material very speedily, but on my reading there is nothing to suggest the school authorities have special training to care for O in the event she suffers seizures.  There is certainly, on my reading, nothing to indicate that the staff at H Centre have special training in this regard.  The child is involved in a wide range of activities to which I have adverted to over and above her schooling, which includes tennis, ballet, karate, sailing and bike riding.  Again, the people who take her - and largely their time is donated, as I understand it - nothing to suggest those people have special training to care for O or that they have to carry oxygen bottles around with them and suchlike. 

4. It is difficult to know what order to put in place in relation to this matter.  It is very convoluted and the waters are muddied with allegations and counter allegations.  I am firmly of the view, however, that the father should spend time with O and it should be unsupervised.  I am minded to allow him to attend the school camp, and to put the matter beyond doubt I am going to make an order excluding the mother from attending the school camp.  There does seem to be a high level of gamesmanship being played, and I use that word in a generic sense.

5. The father for the next six weeks will have time with O from each Saturday and Sunday from 7.00 am until 7.00 pm.  I discount equal time until I have heard further submissions but it seems to me to be too disruptive.  I do not discount it as a possible order upon reconsideration.  I am very sceptical that I could be convinced that a 10/4 arrangement as proposed by the father is in O’s best interests, but again I do not discount that there may be factors that are brought to light.

RECORDED   :   NOT TRANSCRIBED

ORDERS DELIVERED

1. I am conscious of the fact that the mother is attending university and has other duties of caring for O during the week and that the father is not employed.  Saturday and Sunday are prime time; by the same token it will give the mother some relief from the arduous care regime and it will involve the father in the child's life.

ORDERS DELIVERED

1. So I note that by the next day it is probable that the independent children's lawyer will be appointed.  I made consent orders yesterday.  So if an independent children's lawyer is appointed whether they can take certainly any great active role in the proceedings, whether the independent children's lawyer would want to have a stance on the issue of sole use of the house which does involve where O is to reside of course, it would seem to me that in the fullness of time in the preparation of this matter the Court would benefit from a psychiatric assessment of the parties.  I noted the allegations and counter allegations and it seems to be highly dysfunctional and such a report may be of assistance to the Court in being able to make sense of the evidence.

RECORDED    :   NOT TRANSCRIBED

ORDER DELIVERED

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  12 June 2009