ROBERTSON & ROBERTSON

[2013] FamCA 374

FAMILY COURT OF AUSTRALIA

ROBERTSON & ROBERTSON [2013] FamCA 374

FAMILY LAW – CHILDREN – interim orders – with whom a child lives – with whom a child spends time – where an informal arrangement between the parties to vary existing parenting orders had been disrupted – best interests – orders for two of the children to live with the father and spend time with the mother and for one of the children to live with the mother and spend time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Robertson

RESPONDENT: Ms Robertson

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 275 of 2011

DATE DELIVERED: 15 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: The Family Law Project

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

IT IS ORDERED PENDING FINAL DETERMINATION THAT

1. The parties have equal shared parental responsibility for the children R born … October 2001, S born … June 2003 and V born … January 2009.

2. The children R and S live with the father.

3. The child V live with the mother.

4. The children R and S spend time with the mother:

   4.1during school terms, each alternate weekend from the conclusion of school Friday until 6.30 pm Sunday, commencing on 17 May 2013;

   4.2for half of each short school holiday period, at times to be agreed between the parties and in default of agreement, then from the conclusion of school on the final day of term until 6.30 pm in the middle Saturday of the holiday period;

   4.3on special occasions, at times to be agreed between the parties;  and

   4.4at such other times as may be agreed between the parties.

5. The child R’s time with the mother pursuant to paragraph 4 herein is subject to his wishes.

6. The child V spend time with the father:

   6.1during school terms:

   6.1.1each alternate weekend from 4.00 pm Friday until 6.30 pm Sunday, commencing on 24 May 2013;

   6.1.2each Wednesday from 9.00 am to 7.45 pm commencing on 15 May 2013;

   6.2for half of each short school holiday period at times to be agreed between the parties and in default of agreement, then from 6.30 pm on the middle Saturday of the holiday period until 6.30 pm on the final day of the holiday period;

   6.3on special occasions, at times to be agreed between the parties;  and

   6.4at such other times as may be agreed between the parties.

7. The handovers be effected as follows:

   7.1all handovers which coincide with the conclusion of a school day are to be effected by the mother collecting the children from school;

   7.2all handovers of V to the father at the commencement of her periods with him be effected by the mother delivering the child to the father at his home;

   7.3all handovers of V to the mother at the conclusion of the child’s periods with the father be effected by the father delivering the child to the mother at her home;

   7.4all handovers of R and S to the father at the conclusion of the children’s periods with the mother be effected by the father collecting the children from the mother’s home;

   7.5the parties be at liberty to vary the above handover arrangements PROVIDED THAT they agree to do so in writing (whether by SMS, email or otherwise).

8. The children and/or the parties engage in any such therapy or counselling as is agreed between the parties and the Independent Children’s Lawyer UPON NOTING the mother proposes the “[BB]” programme run by Mr C for R and S.

9. Within seven [7] days from today each of the father and the mother do provide in writing to the other party and to the Independent Children’s Lawyer details of the names and addresses of any appointments with any psychologist, psychiatrist, counsellor or therapist that the children have consulted in the past twelve [12] months.

10. Each of the father and mother be restrained and an injunction is granted restraining each of them from taking the children to any appointment with any psychologist, psychiatrist, counsellor or therapist without the written consent of the other party.

IT IS FURTHER ORDERED THAT

1. The matter is further referred to the Docket Registrar for preparation for trial as soon as there is judicial availability, with an updated Family Report to be prepared by Mr D (in accordance with paragraph 1 of the Order of 28 February 2012 - if he is still available when the trial date is known) UPON NOTING the original estimate of length of trial was 5 to 6 days and the Order made on 7 August 2012 for a list of witnesses to be provided to the Registrar.

2. The father’s Amended Application in a Case filed 4 March 2013 and the mother’s Response to an Application in a Case filed 26 April 2013 are dismissed as finalised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Robertson & Robertson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 275 of 2011

Mr Robertson

Applicant

And

Ms Robertson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matters before the Court concern the welfare of the three children of the parties.  R was born in October 2001, S was born in June 2003 and V was born in January 2009. 

2. It is of concern to the Court that the litigation between the parents has been ongoing for a considerable period of time and continues to involve the Court in interim matters, notwithstanding that the matter has been placed in a list for trial some time ago. 

3. The matter was referred from the Federal Magistrates Court (as it then was) with orders in place.  It is important to note that the parents were able to come to some agreement in relation to the arrangements for the children that varied the orders, as was permitted by the orders themselves, however, since the matter was before the Federal Magistrates Court (as it then was) there have been difficulties created and the arrangements in relation to the children significantly disrupted. 

4. The arrangements were disrupted because of allegations that were made in relation to alleged abuse of S and V by the mother’s father, the maternal grandfather.  Those allegations are set out in the affidavit material before the Court, including the most recent report from the Child Protection Service (“the CPS”) in relation to the allegations concerning V.

5. The arrangements that had been in place until those allegations arose were that R and S would live with the father and that V would live with the mother.  The arrangements were such that S and V were spending weekends together, with R not spending any time with the mother, apparently because he has become estranged from the mother. 

6. It is a concern that the children appear to have been heavily involved in the ongoing difficult relationship between their parents.  I note that the forensic report from the CPS expresses concern about the acrimony between the parents, its impact upon the children and their ability to maintain a positive relationship with each parent.  One of the duties of a parent is to ensure that they are capable of encouraging and maintaining an appropriate relationship between the children and the parents. 

7. When the Court comes to determine the final orders, it will be significant to ascertain which of the parents or if either or both of the parents are capable of encouraging a relationship between the children and the other parent.  There appears to be some concern about that raised by the CPS and that would appear to be an appropriate concern based upon the difficulty history of this matter.

8. The Court, however, has before it now, competing applications and affidavits.  On an interim basis the Court is unable to determine the actual factual basis.  What does appear to be important, however, is the primary considerations and namely the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from any harm.  What also has to be taken into account is the arrangements and the impact upon the children of any change to those arrangements on an interim basis. 

9. I take into account all of the provisions in relation to the best interests of the children as set out in part VII of the Family Law Act 1975 (Cth) and in particular, take into account the reports from the family consultant and the CPS.

10. On that basis I consider that it is appropriate that pending the final determination of this matter, the children, R and S remain residing with the father, that V remain residing with the mother and that arrangements are put back in place which provided for the children, R and S to spend alternate weekends and half the school holidays and special occasions with the mother, subject in that case to R’s wishes but not subject to S’s wishes. 

11. I am concerned about giving a child of S’s age any responsibility to overcome the emotional difficulties and the other difficulties his parents have placed upon him.  It should not be up to a child of that age to make a choice.  It is not a decision that the child should make.  The same applies to V.  The Court orders are in place and it is not up to the children to be left the responsibility, but it is up to the parents to ensure that the children are appropriately encouraged and directed to assist each of the parents in complying with orders of this Court.

12. I propose that V’s arrangements also return to those that were in place before the matters were disrupted by the behaviour of the parents.  That returns to each alternate weekend so that it is not at the time that S spends with the mother but so that V and S can spend each weekend together and that V also spend time with the father on Wednesday afternoons.

13. I do not have the dates available to me I am going to stand the matter down whilst counsel prepare the draft minutes for me to sign, setting out the dates upon which each of the alternate weekends should commence and setting out also in the orders, that the parties have the shared parental responsibility in respect of all three children.  The difficulties that the parties have in communicating has been created by them.  They will have to improve their attitude and behaviour and make appropriate arrangements so that the shared parental responsibility can continue until such time as the Court is in a position to determine if and when that should be altered. 

14. In relation to the arrangements for the parties taking the children to attend upon other persons, I consider it inappropriate for either party to take any of the children to any specialist medical appointments with a psychologist, psychiatrist, counsellor or therapist without the written consent of the other party and that should be included in the order. 

15. In relation to the provision of information, it is part of the Court rules that parties provide to the other party, full information and therefore, it will be appropriate for both parties to inform the other in writing, through their solicitors, if appropriate, and the Independent Children’s Lawyer, particulars of the names and addresses of specialist medical appointments with the psychologist, psychiatrist, counsellor or therapist that the children have consulted in the past 12 months.

16. In relation to the question of further therapy of, or counselling for, the children, I consider it would be appropriate, taking into account that there already is an order for existence, that further sensible negotiations take place with the parties and the Independent Children’s Lawyer to arrange such attendance.  It may well include separate attendance upon some form of counselling or therapy for the parents to overcome the difficulties for their children which they created by the breakdown of their relationship.

17. In relation to the question of the further update of the Family Consultant’s report.  It is clear from the Court file that the matter has been waiting an allocation of a trial date from 7 August 2012.  The matter will be returned to the Registrar’s Docket with a direction that it be prepared for trial as soon as there is judicial availability, noting that the original estimate was five to six days and the orders were made on 7 August 2012, the list of witnesses to be provided to the Registrar. 

18. In relation to the handover, it would appear to me to be appropriate for the collection of the children to take place at the completion of school on Friday, rather than the 4.00 pm on a Friday afternoon and that should be considered in the Court orders.  The arrangements have been for the children to be handed over at 6.30 pm on a Sunday and taking into account that I am not proposing to change the past orders and have left the Wednesday evening in place for V, I am not proposing to change the return date of the Sunday.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 May 2013.

Associate: 

Date:  29 May 2013