Rolfe and Smythe

[2008] FamCA 144

FAMILY COURT OF AUSTRALIA

ROLFE & SMYTHE [2008] FamCA 144

FAMILY LAW – CHILDREN – Interim parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Rolf

RESPONDENT: Ms Smyth

FILE NUMBER: SYC 1135 of 2007

DATE DELIVERED: 3 March 2008

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 3 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Levy & Partners

SOLICITOR FOR THE RESPONDENT: The Family Law Practice

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

Procedural orders

1. That each party during the hearing make full and frank disclosure of any fact which should be brought to the attention of the Court having regard to the best interests of a child the subject of the proceedings.

2. That no further application or response be filed by a party to the proceedings without leave of the Court.

3. That no party issue a subpoena in the case without first obtaining leave of the Court.

Re-listing of proceedings

1. That each party and/or their legal representatives and the independent children’s lawyer shall ensure the case co-ordinator is advised of any event or circumstance which is likely to seriously impact upon the timely progress of these proceedings through the Court.

2. That leave is granted to the parties to re-list the proceedings at the earliest convenient time suitable to the Court by arrangement with the case co-ordinator.

Interim orders until further order

1. That the current parenting orders which provide for periods of time to be spent by the mother with the three children are suspended until further order.

2. That the parties ensure that the mother spends a period of time with the three children each alternate Saturday from 9.30am until 4.15pm commencing Saturday 8 March 2008 by the father delivering the three children to B Contact Centre at 9.15am that day and the mother returning the three children to that Centre at 4.15pm that day.

3. That the mother ensure that Mr R is not present at any time that the three children or any of them are in her care pursuant to order 7.

4. That the mother may make arrangements with Mr R for all or any of his three children to spend time at her premises during the periods that the three children of the parties are in her care pursuant to order 7.

Future schooling

1. That the mother make all appropriate enquiries of the Principal of the school and pre-school attended by the children P and A in order to better inform herself as to whether it is in the children’s best interests to change their current school and pre-school.

2. That the mother instruct her solicitor to inform the father’s solicitor within fourteen [14] days of today of the mother’s position in relation to possible change of schooling.

3. That the father have leave to make an application seeking interim orders in relation to changing the children’s school together with an affidavit in support after the expiration of fourteen [14] days from today.

Adjournment date

1. That the proceedings be listed before The Honourable Justice Rose for callover at 10.00am 2 May 2008 for the purpose of ascertaining the then outstanding issues between the parties in the event that an overall agreement has not been reached, to make directions for further affidavits if appropriate, to consider whether a further report from Dr W is required and to fix further hearing dates.

NOTATIONS:

A.That the injunction restraining the mother from bringing the three children or any of them into the presence of Mr R is made without any adverse finding of fact being made which reflects upon his parenting skills.

B.That the issue of Mr R’s relationship with the mother and the implications which that relationship has so far as the mother’s parenting skills are concerned and the children’s safe care are matters which may need to be explored more thoroughly in the evidence should the parties fail to reach agreement on a final basis in relation to all outstanding parenting issues.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1135/2007

MR ROLFE

Applicant

And

MS SMYTHE

Respondent

REASONS FOR JUDGMENT

1. The proceedings heard by me today represent day one of the less adversarial trial process.

2. The parties have three children who are aged 10, 6 and 3 years respectively.

3. Each of the three children live with the father.

4. There have been orders made during 2007, at times by consent, which relate to periods of time that one or more of the three children spend with the mother.

5. The evidence before me today was necessarily of a very limited basis.  The hearing proceeded in accordance with the usual procedure for “day one”.  Expert evidence was given by family consultant, Ms G.  The parties had a counselling session with her and as a result of that session progress was made against a background that the three children had not spent any time with the mother for a considerable period.

6. Agreement was reached in relation to further periods of time that the children may spend with the mother.  However, certain conditions that the father has sought to impose were not the subject of agreement.

7. I offered the solicitors for the parties a number of alternatives for the purpose of the manner in which this hearing would proceed this morning with a view to me determining the issues on an interim basis.  It was agreed that the legal representatives make submissions to me and then I then proceed to give judgment and make orders.

8. The matters upon which agreement is reached are as follows:-

   a)That on an interim basis the three children spend periods of time with the mother each alternate Saturday from 9.30 am to be collected from B contact centre and returned by her to that centre at 4.15 pm that day, commencing Saturday 8 March 2008.

   b)Inquiries were made by the Independent Children's Lawyer as to the facility at B contact centre being available from 8 March 2008, and I was informed that that facility will be available.  The practical aspects of it will require that the father take the three children to B contact centre at 9.15 am and that the mother return them to that centre at 4.15 pm that day.

9. The area of controversy relates to firstly, the period of time that this interim period to be spent by the mother with the children should continue.  Secondly, as to whether or not the children should be exposed to the relationship in terms of the presence between the mother and her friend, Mr R. Thirdly, that in the event that the answer is in the affirmative to the last condition, that the children not be exposed to any sexual relationship between the mother and Mr R.

10. The submissions made by the Independent Children's Lawyer were that the primary focus should be upon the period of time that the children spend with the mother against a background where that had not taken place for a considerable period.  If it meant that a term and condition was that the children not be brought into contact with Mr R, then that should be accepted on an interim basis only.

11. Submissions were made by the solicitor for the father in support of the restrictions which he advances.  In that regard, I was referred to pages 13 and 14 of Exhibit 3.  The substance of that evidence relates to a reporting of physical discipline by Mr R towards the mother's daughter of another relationship, N, aged 13 years, and Mr R’s response to the allegations that were made where, in essence, he accepts that he intervened, although it is not clear from Exhibit 3 that he conceded that he had done so in any physical fashion.

12. The solicitor for the mother submitted that the children have a good relationship with Mr R’s three children and, therefore, it was in the interests of the three children of the parties that that situation be allowed to continue.  The mother opposed any term and condition which would exclude Mr R from being present during the periods of time the subject of the proposed interim orders.

13. I was also referred by the solicitor for the father upon her instructions of course, that the father has certain religious beliefs which support the submissions that he makes.  The question of those religious beliefs and the manner in which they have been adhered to are matters which will need to be investigated, if at all, by way of further evidence if, unfortunately, the parties are unable to reach a final agreement so far as parenting matters are concerned.  Consequently, I will not attach any weight to that particular submission.

14. As I explained to the parties when the hearing commenced today the legislation requires that the paramount focus before any parenting order can be made is the best interests of the children.  In this matter, unfortunately, the children have not only the individual behavioural and emotional problems referred to in Exhibits 2 and 3, but I infer they have not been assisted by what seems to have become entrenched parental conflict between the parties, which has resulted in a number of Court appearances in this Court and in the Local Court.

15. Consequently, it seem to me that the immediate focus must be on what can be achieved on a constructive basis to assist the three children in their relationship with each of the parties.

16. The 2006 amendments to the Act provide that not only should children be protected from being exposed to violence and abuse but also that a court give consideration to the achievement of a meaningful relationship between children with each of their parents.  It is the latter that I am primarily focusing on in giving this judgment.  It is obviously of importance to these three children for their emotional development, especially based on the evidence given by the family consultant, that they recommence spending significant periods of time with the mother as soon as possible.  In that regard, it is also important that each of the parents provide a genuine encouragement to the three children to enable those periods of time to be successful.

17. This being a very truncated interim application, I am not in a position to have had explored in the evidence before me whether Mr R is a good or adverse influence by his presence, so far as the three children are concerned, or any of them.  I prefer to take a more cautious approach on the basis that, on the evidence before me, there is no disadvantage to any of the three children by Mr R not being present at the mother's home for the one day per fortnight, the subject of the interim agreement that was reached by the parties in principle.

18. So far as the children having the benefits of interaction with Mr R’s own children are concerned, I was informed by the father's solicitor that there is no objection to that taking place implicitly on the basis that Mr R is not present.

19. I propose to make orders which will resurrect the periods of time that the children spend with the mother.  I will make those orders in the terms which, in principle, are agreed upon to continue until further order.  I think it is important for the relationship to be re-established and for that to be reassessed on another occasion before considering what further periods of time they should spend with the mother.

20. So far as the presence of Mr R is concerned, I will make an order excluding him from being present, but not excluding all or any of his children from being present.  I will ensure that there is a notation that that order is made without an opportunity to make any detailed findings of fact against him so that that order is not a reflection on Mr R’s integrity or parenting skills on an interim basis.

21. I note that there still is an order, being order 8 made on 10 July 2007 which restrains the mother from permitting Mr R or any of his children living overnight at her premises.  That order continues to be in effect until such time as it is discharged, or varied, or final orders are made.

22. I am also concerned to avoid any possibility of a repetition of the allegations that are on pages 13 and 14 of Exhibit 3.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  10 March 2008