Rouse and Rouse

[2007] FamCA 83

FAMILY COURT OF AUSTRALIA

ROUSE & ROUSE [2007] FamCA 83

FAMILY LAW - PARENTING - Interim - presumption of equal shared parenting

Family Law Act 1975 (Cth), s.60CC, 60CC(3)(d) and (m);  s.60CC(4), s.60CC(4A)

Goode v. Goode [2006] FamCA 1346;
Cowling (1998) FLC 92-501

HUSBAND: Mr Rouse

WIFE: Mrs Rouse

FILE NUMBER: MLC 812 of 2007

DATE DELIVERED: 31 January, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 31 January, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms Benjamin

SOLICITOR FOR THE HUSBAND: Gadens, DX 304, Melbourne

COUNSEL FOR THE WIFE: Ms Carter

SOLICITOR FOR THE WIFE: Donald S Lampe, DX 38239, Melbourne

Orders

1. That all extant applications be adjourned to 20 March, 2007 in the senior registrar’s list at 9:45 am.

1. That pending the adjourned date the children of the marriage L born in September, 1995  and  M born in July, 1998 live with the husband.

1. That until further order the children spend time with the wife as follows :

   (a)each weekend from 5:00 pm. Friday to 5:00 pm. Sunday commencing on 2 February, 2007;  and

   (b)at such other times as are agreed between the parties. 

IT IS FURTHER ORDERED BY CONSENT

1. That for the purpose of changeovers the parties shall meet at A at 5:00 pm. on each Friday and Sunday.

1. That the husband and wife have reasonable telephone contact with L and M when they are in the other parent’s care.

1. That the wife be and is hereby restrained from bringing the children into contact with B.

1. That until further order the wife be and is hereby restrained from :

   (a)removing or attempting to remove the children’s residence from the city of W;

   (b)removing the children from the school at which they are enrolled at Melbourne;  and

   (c)discussing these proceedings with the children or in their hearing.

1. That the wife forthwith provide to the husband’s solicitors the names and addresses and contact details of all medical practitioners, psychologists and hospitals attended by her since 1 January, 2005 to the present date. 

1. That the parties and L and M attend upon Mr H at the office of Mr P for the purpose of preparing a Family Report at the parties joint expense, such report to be used as evidence in these proceedings and to address the living arrangements of the children and any views expressed by the children.

1. That the wife forthwith attend upon Dr J for the purpose of a psychiatric assessment, at the husband’s expense, such assessment to be used as evidence in these proceedings, and the wife authorise her previous and present medical and health practitioners to provide all relevant information of all her treatment to Dr J.

IT IS FURTHER ORDERED

1. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children L born in September, 1995 and M born in July, 1998 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

1. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

1. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That the evidence of the wife given this day be transcribed and a copy made available to the parties.

1. That the preparation of these orders be expedited forthwith.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 812  of 2007

Mr Rouse

Husband

And

Mrs Rouse

Wife

REASONS FOR JUDGMENT

1. This matter concerns the parties' sons, L, who was born in September 1995, and M, who was born in July 1998.  Their parents have been separated for many years.  After separation, the children continued to live with their mother in W.  Their father moved to Melbourne soon after separation.  They continued to spend frequent and regular periods with him.

1. Each of the parties repartnered after separation, the mother with Mr L, the father with Dr Y.  The mother's relationship with Mr L has recently ceased, after she formed a sexual relationship with his son, B, a young adult.  Importantly (in my view this is more important than the fact of the relationship) that relationship was one marked by violence.  The mother has conceded that she was the target of violence directed at her by B and of significant threats.  There is at least the possibility that violence has been directed by B at the two boys, and that the children were exposed to his abuse of her.

1. Matters came to a head when the children went for a holiday with their father on Christmas Day.  The parties' evidence about the circumstances in which that occurred is not consistent.  I cannot make findings about that today.  But it is common ground that they went to their father for a holiday on Christmas Day. 

1. The mother's evidence is that she has experienced anxiety and panic attacks, since she was 20.  She conceded the accuracy of the father's evidence of her threats to self-harm in November 2005, and some involvement by the police at that time.  She conceded a number of other allegations relating to text messages sent by her;  that she intended to move from W to Melbourne; that she might take him up on an offer (being an offer that the boys stay with him);  that she had spoken of going to live in Brisbane.  She did not agree that she discussed buying a hotel or a motel in Y, but did agree that she had considered such a purchase, evidence which may make the evidence adduced by the father on that point rather more probable than not.

1. The children have been living with the father since Christmas.  It is clear there was considerable discussion between the parents while the children were with their father.  The mother was, to use her own words, in a crisis situation.  She was trying to extract herself from the violent relationship with B;  she was dealing with the consequential break-up of her relationship with his father;  she was trying to find new accommodation;  and she was accessing mental health services  No doubt it was a very difficult time for her.

1. The mother has been seeing Dr G once a week since that crisis in December.  It is proposed she have some cognitive behavioural therapy.  That can be demanding and her evidence is of an intention to postpone that until the immediate legal difficulties are surmounted.

1. For her, reliance is placed on the fact she has been the children's primary carer for many years and that the father, to his credit, deposed that she has been a very good mother in the past.  That is a welcome change, having regard to the evidence often put before the court.  But the father’s concern is that the mother is emotionally and psychiatrically unwell.  In support of this he relied on evidence that she has demonstrated significant instability in recent times, including threats to self-harm, and became involved in the violent relationship with her partner’s son.  She may well have exposed the children to the violence directed at her by B, which is itself a form of abuse of children.  He adverted to the uncertainty and unreliability of her various proposals about where she might live, what she might do, where she might move the children.  He submitted that as her relationship with Mr L has ended, she will not now have his emotional and practical support, even were she to stay in W.  I do note Mr L is at court with her today

1. The relevant law is built on what might be called twin pillars.  The first is the importance to children of having a meaningful relationship with both their parents;  the second the importance of protecting children against violence and abuse.  Until very recently, one could say generally, without fear of contradiction, that the maintenance of stability, sometimes referred to as an established status quo, was an important factor when determining an interim residence case.  In the recent judgment of Goode v Goode [2006] FamCA 1346 the Full Court have moved the boundaries, having regard to the 2006 amendments to the Family Law Act 1975. In particular, even at the interim stage, the Court should consider the presumption of equal, shared, parental responsibility and, if it applies, whether children should spend equal time with both parents or, if that is not possible, substantial and significant time with both parents.

1. The Full Court noted that s.61DA(3) specifically refers to interim proceedings, providing that the presumption applies unless the Court does not consider it appropriate.  Neither counsel put forward a proposal for equally shared time;  in this case that could not now be practicable, and certainly not in the children's interests.  I find it inappropriate to apply the presumption.  The parties’ parental responsibility will remain governed by s.61C.  Both sets of proposals involve the children spending substantial and significant time with the other parent.

1. In Goode, the Full Court noted that some of the comments of the Full Court in Cowling (1998) FLC 92-801 are still apposite – the Court must regard the best interests of the children as paramount, and the abridged nature of an interim hearing means the Court should not be drawn into issues of fact or the merits of the substantive case if findings of fact cannot be made. While the stability derived from a well-settled arrangement may ultimately be preserved by an interim order, the Court must consider the matters contained in s.60CC (particularly s.60CC(3)(d) and (m)) and, if appropriate, s.60CC(4) and s.60CC(4A).

1. The parties have agreed that the wife will be psychiatrically examined and that a family report will be prepared.  They each support the appointment of an independent children's lawyer and I am satisfied such an appointment is necessary in this case.

1. The court's focus must be the best interests of L and M.  The last few months have been a very difficult time for both parents and, particularly, for the mother.  She has been, as the children's father concedes, a very good mother in the past.  It is to be hoped her current problems are situational and responsive, not long term.  The need to protect the children from harm (physical and emotional) must at this time take precedence over other factors. 

1. In my judgment, on the evidence before me, the best interests of the children will be met in the interim by living in Melbourne with their father and Dr Y, and having regular and frequent contact with their mother.  Their relationship with her will be maintained.  She can do her best to stabilise her own life;  she has a number of decisions to make about issues including her health, place of residence and specific accommodation.  In the mean time the children will be in a safe and stable environment, which I am satisfied is in their best interest at this time.

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of          2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ROUSE & ROUSE