Rowe and Helbig
[2011] FMCAfam 1532
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROWE & HELBIG | [2011] FMCAfam 1532 |
| FAMILY LAW – Parenting – interim orders – no question of principle. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN |
| Goode & Goode (2006) FCA 1346 SS & AH (2010) FamCAFC 13 Marvel & Marvel [2010] FamCAFC 101 Collu & Rinaldo (2010) FamCAFC 53 |
| Applicant: | MR ROWE |
| Respondent: | MS HELBIG |
| File Number: | PAC 5421 of 2010 |
| Judgment of: | Foster FM |
| Hearing date: | 29 November 2011 |
| Date of Last Submission: | 29 November 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 29 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Vanos |
| Solicitors for the Applicant: | Pryor Tzannes & Wallis |
| Counsel for the Respondent: | Ms Galloway |
| Solicitors for the Respondent: | Galloway Family Law |
ORDERS
That orders 8 and 9 made on 20 December 2010 be discharged;
That the children [X], born [in] 2005, and [Y], born [in] 2008, spend time with the father as agreed between the parties, and in default of agreement as follows:
(a)From 3 December 2011 each Saturday from 10 am to 4 pm in the [P] area, and for the purposes of this order the Court notes the father will be absent from New South Wales from 25 December 2011 to 10 January 2012 inclusive;
(b)From 9 am to 5 pm Christmas Eve;
(c)From Saturday, 21 January 2012:
(i)Each alternate weekend from 9 am to 6 pm Saturday and 9 am to 6 pm Sunday; and
(ii)Each Wednesday from 9 am to 6 pm, and the Court notes that in the event that the father obtains employment that the parties may agree as to alternate times on Wednesdays;
(d)From the commencement of term 1 2012 and in each school term thereafter:
(i)Each alternate weekend during school term commencing on the first weekend after the resumption of school term from 12 noon on Saturday to 6 pm Sunday for three of such weekends, and thereafter, each alternate weekend from 9 am Saturday to 6 pm Sunday; and
(ii)Each Wednesday from after school until 6.30 pm, with the father to ensure that the children have an evening meal prior to the conclusion of such time;
(e)During the school holidays at the conclusion of term 1 2012 for a period of four consecutive nights commencing at 9 am on the first Wednesday of such holidays and concluding at 6 pm on the following Sunday, and thereafter during the school holidays at the conclusion of terms 2 and 3 2012 for a period of seven consecutive nights commencing at 9 am on the first Saturday of such holidays and concluding at 6 pm on the following Saturday;
That for the purposes of the father’s time with the children the father’s time shall be supervised by any of the following: [B], Ms L, Mr R and Ms R, and such other person or persons who shall be agreed upon by the parties;
That for the purposes of the father’s time with the children he or his nominee known to the children shall collect the children from the mother’s residence at the commencement of time and the father or his nominee known to the children shall return the children to the mother’s residence except where such time is to commence at the conclusion of school, and in that event the father or his nominee known to the children shall collect the children from the mother at the school attended by the child [X] at the conclusion of the school day;
That within 14 days from this date the father shall attend upon the child [X]’s treating general practitioner and obtain a referral to a general practitioner in the [K] area that has experience in the treatment and management of juvenile diabetes, and thereafter, the father shall ensure that the child [X] is attended upon by that practitioner where necessary so far as is practicable;
That for the purposes of the father’s overnight time with the children he and the children shall sleep either at the home of his daughter [B] at [K] or his parents, Mr R and Ms R, at [T], or as otherwise agreed by the parties;
That the parties jointly instruct the single expert, Dr R, to prepare an updated report for the purposes of the adjourned hearing and request that Dr R commence preparation of such report as close to the adjourned hearing dates as is reasonably practicable, and that the parties pay equally the costs of the updated report;
The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any person to do so, and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Rowe & Helbig is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
PAC 5421 of 2010
| MR ROWE |
Applicant
And
| MS HELBIG |
Respondent
REASONS FOR JUDGMENT
These are proceedings in relation to parenting arrangements for two children, [X], born [in] 2005, and [Y], born [in] 2008. The proceedings were listed for hearing commencing on 21 November 2011 and it became readily apparent at the commencement of the hearing that the matter would not be completed in the time allocated by the Court and that the matter would proceed on a part-heard basis at dates reserved in May 2012.
Bearing in mind the recommendations in the family report and the significant delay until the trial could be resumed it was agreed between the parties that at the conclusion of the matter on a part-heard basis there would be a short argument in relation to parenting orders to have effect during the period of the adjournment. Previous orders had been made in circumstances where the father was living and working in Western Australia and was only able to attend New South Wales for the purposes of spending time with the children on an itinerant basis on reasonable notice to the mother.
The orders sought at trial were provided by the parties in terms of minutes of orders. The father, at trial, sought orders in terms of the document admitted into evidence and marked exhibit A. The order sought by him were shortly as follows: (1) that the mother and the father have equal shared parental responsibility; (2) that the children live with the mother; (3) that the mother be restrained from relocating with the children more than 20 kilometres from her present residence in [N] without an order of the Court or consent in writing of the fathers; (4) that the children spend time with the father as follows: for a period of three months after the making of the orders commencing the first weekend from making of the orders and each alternate weekend thereafter for a period of two weekends, time with [X] to be from 9 am Saturday to 7 pm Sunday, time with [Y] to be from 9 am Saturday to
7 pm Sunday and 9 am Sunday to 7 pm Sunday.
The father then sought consequent orders that saw his time with the children expand on an unsupervised basis, such that he was ultimately spending time during school term each alternate weekend from 7 pm Friday to 7 pm Sunday, half of all school holidays and with particular orders sought in relation to Christmas, Mother’s Day and Father’s Day, together with electronic communication with the children.
In short form, the mother sought orders in relation to the children on a final basis that provided as follows: (1) that the mother have sole parental responsibility for the children; (2) that the children live with the mother; (3) that the father spend time with the children on a supervised basis, and in particular, (a) for two to three hours on either a Saturday or Sunday once every four weeks between the hours of 9 am and 4 pm, and (b) that the visits take place on dates to be nominated by the father on written notice to the mother no less than four weeks apart, no more than 10 visits a year, not on mother’s day or the mother’s birthday. The mother further sought orders that the father’s time be supervised as agreed in writing between the parties, and if not in agreement, by up to two persons nominated and arranged by the mother which may include the mother, and that the cost of such supervision be paid equally, that the father have liberty to telephone or Skype-call the children each Monday between 8 am and 8.30 am for no longer than 10 minutes, and that further, the father be restrained from bathing, dressing, undressing and toileting the children, and exposing the children to graphic representations by DVD, video, computer games or in print form that is violent, sexualised or demonic in nature.
Background:
The background to this matter is that the father was born [in] 1959. The mother was born [in] 1969. The parties commenced cohabitation in 1994 and married [in] 1996 and separated on 19 January 2009. The two children, [X] is now just over six years of age and [Y] is now three years of age. The father has two children from his previous marriage, [A], now aged 26, and [B], now aged 25. Both of those children had some interaction with the subject children during the period of the parties’ cohabitation.
After the birth of the child [X] in 2005, the mother took some six months maternity leave, and at that time the father was working from home. Both parties appeared to be involved in the children’s day-to-day activities when they were young. The child [X] was diagnosed with juvenile diabetes in 2007 and the mother and the father attended doctors together in the [omitted] Hospital for training and dealing with and treating his condition. The father also attended a recommended training course run by the specialist children’s diabetes unit at [omitted] Children’s Hospital, which was an intensive training course run over several days.
Between 2007 and separation, the father and the mother were able to monitor [X]’s condition, and during some periods the father had sole responsibility for this during periods that the mother was at work. The mother returned to work when [X] was six months of age and she continued working until 2008, shortly before the birth of the child [Y]. In 2008 the mother received a redundancy payout from work and she was more often at home, and both parties were significantly and actively involved in the care of firstly [X] and then the younger child when she was born for a short period.
Both parties, it appears, historically have been heavily involved in church activities, and in their respective material describe themselves as evangelical Christians.
The child [Y] was two months old when the parties separated and the father did not have significant opportunity to care for [Y] as a young baby. After separation, the father returned to live in the former matrimonial home at [D] before relocating to Western Australia. The mother lived in [N] with both children. Subsequent to separation, the mother occasionally visited the father with both children in the [D] property, and on occasion she was accompanied by her father, Mr H.
The child [X] was born in 2005. At that time the father’s son [A] was aged 20 and his daughter [B] was aged 19 years of age. Those children both lived with the parties to these proceedings for a period of more than five years. The children – that is, [A] and [B] – had significant interaction, particularly with the child [X]. The child [A] moved out of the home prior to separation to live elsewhere and [B] moved out of the parties’ home a few months prior to separation to live with her fiancée. [B] continued to spend time with and visit [X] on most weekdays and many weeknights.
Both parties concede that by the time the child [Y] was born that they were in significant conflict. The paternal grandparents, who live at [T] saw the child [X] four or five times a year, and of course, prior to separation had little opportunity to interact with the child [Y].
Interim orders were made in the proceedings in December 2010 and those orders were made as between the parties on an without admission basis.
The interim orders made in December 2010 provided as follows in terms of the parenting arrangements for the children: (1) that until further order the children live with the mother; (2) that until further order the father spend time with the children on a supervised basis (a) for two to three hours on one or two consecutive days, being a Saturday or Sunday between the hours of 9 am and 2 pm on dates to be nominated by the father on at least eight weeks’ written notice to the mother by letter or email; (b) that the visits in (a) above take place no less than four weeks apart, no more than 10 visits a year, not on Mother’s Day or mother’s birthday with supervision arrangements, unless otherwise agreed, to be at the [omitted] contact centre at Newcastle, and if the [omitted] Centre was not available, then by up to two supervisors nominated by the mother which may include the mother, and that as to the cost of such supervision, each party was to pay half of those costs. The father was at liberty to telephone the children between the hours of 8 am and 8.30 am on Mondays, Wednesdays and Fridays for no longer than 10 minutes, and if the children were to be unavailable the mother was to notify the father on 24 hours’ notice of an alternate day in the week the children would be available for his call.
For the purposes of the father’s time with the children during December 2010, the arrangements were that the father would see the children from 1 pm to 3 pm on 21 December and from 2 pm to 3 pm on 22 December, that during those times, the mother and Mr N be present and take place at [address omitted]. And until further order, the mother was to have sole parental responsibility in relation to decisions relating to the management and treating of [X]’s type 1 diabetes. On making of the orders of 20 December 2010, the Court noted that the orders providing for supervised time and restricted telephone time in the consent orders were made on a without admissions basis by the father.
The circumstances subsequent to separation were that between separation and August 2009 the father travelled most weekends and sometimes midweek from Sydney to [N] to spend time with the children. During those periods he stayed with the mother in the basement of her home. The mother and sometimes her father were present in the home. The father was able to take the children swimming and to the beach without either the mother or her father accompanying him.
After 21 August 2009 on which date the father travelled to Western Australia for work reasons, he was able to travel back to [N] from Western Australia in October 2009 and spent time with both children for intervals of four hours on four consecutive days, that time being monitored by the mother and/or her father. During the time he stayed with his daughter in Sydney, and on the second to fourth nights stayed with his parents at [T] and drove to see the children at [N].
The father further travelled from Western Australia to [N] to see the children in February 2010 where he spent four hours each day over three or four consecutive days with the children, supervised by the mother, her father or childcare workers. He similarly travelled to [N] in May 2010, September 2010, December 2010, April/May 2011 and July 2011.
There have been AVO proceedings between the parties in circumstances where the father informed the mother in late 2009 he was planning to visit the children in February 2010. At that time, the mother made application for an apprehended violence order against the father. That order was made on a interim basis and subsequently heard at [omitted] Local Court on 2 November 2011 with normal statutory orders being made after a defended hearing. The terms of the AVO order do not impact upon this Court’s ability to make orders in relation to the father’s time with the children.
During the course of these proceedings and in her affidavit evidence, the mother makes complaint of certain actions by the father. She alleges that on several occasions about 12 months apart she observed the father in the bath with the child [X], she asserts with an erection. The circumstances of that incident are strenuously denied by the applicant father. She also gives evidence of a conversation with [X] subsequent to separation, a conversation that is uncorroborated, and also makes an assertion that [X] was conscious of the practice of masturbation by reason of something he had been taught by his father. The father also strenuously denies that assertion.
Subsequent to separation, the father attended upon Mr A and Associates, clinical psychologists. The attendance notes before Mr A and a short overview report prepared by him on 23 August 2010 comprised Exhibit G in the proceedings. The report dated 23 August 2010 asserts as follows:
Re: Mr Rowe. Mr Rowe was referred to me for treatment by his GP under the Medicare Better Access Scheme. He initially presented to me with significant depressive symptoms associated with conflict in his marriage relationship. He consulted me both during and subsequent to the separation from his wife. At initial assessment he reported that one significant source of conflict in the relationship was his recourse to adult pornography as a way of him dealing with negative affect as well as coping with a lack of sexual intimacy in his marriage relationship. Mr Rowe and his wife reportedly identified themselves as Evangelical Christians who considered the use of pornography morally wrong. Mr Rowe was seeking assistance in overcoming his habitual recourse to viewing pornography, partly due to what he perceived to be its moral illegitimacy, but more significantly because of the conflict it was creating in his marriage. It should be noted that the pornography use, while a source of tension in the marriage, and regarded morally wrong from his and his wife’s perspective as Evangelical Christians was not atypical with reference to wider society. There was no evidence that he was accessing any illegal material or material that was outside of popular use. I saw no evidence of paraphilia, pathological sex addition, nor any other dysfunction of sexual behaviour as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). In the course of therapy, I was not made aware of any factors that would imply an adverse affect on children in his care. The available evidence suggested a mature and responsible attitude to the care and nurturing of his children, being keen to minimise the adverse effects of marital distress and separation and eager to act in the best interests of his children, even where that meant making sacrifices to his own access to his children.
During the course of the part-heard matter, the question of supervised time for the children with the father was discussed. It was agreed that the various supervisors proposed by the father would give short evidence, so the Court would have an understanding of their knowledge and appreciation of their obligations as supervisors during the period that any interim orders were to operate.
[B] gave evidence and was not cross-examined. She had a clear and positive understanding of the obligations she had as a supervisor and said that during periods that the father would have the children he was free to have the children at her home on a day or overnight basis. She understood her obligation, that he was to be supervised at all times with the children, and if there were any adverse issues observed by her it was her obligation to promptly return the children to the mother.
Ms L, the father’s present partner, also gave evidence. She is a [occupation omitted] and has been so for many years. She [works with children] and has twin children of her own who are aged 23 years. She will be in New South Wales until 3 December when she has to return to Western Australia, and then she would return to New South Wales on 10 January for a two or three-week period whilst she attended to outstanding obligations in Western Australia. She also had a positive and clear understanding of her obligations as a supervisor.
The paternal grandfather, Mr R, who resides at [T] on the northern shores of [P] gave evidence. He also had a clear and positive understanding of his obligations in relation to supervision and his obligation to return the children to the mother should he have any concerns whatsoever as to the father’s behaviour in relation to the children whilst under his supervision.
Similar evidence was given by the paternal grandmother, Ms R, and the Court is satisfied, having heard the evidence, that those four persons are proper and adequate supervisors for the father’s time with the subject children.
The proceedings of course concluded without the Court being able to make any determinations on a part-heard basis as to contested issues of fact, but at the conclusion of the evidence, the parties provided to the court a short minute of orders sought by each of them in relation to the father’s time with the children pending a resumption of the contested hearing. The mother on an interim basis sought orders as follows that are comprised in exhibit M:
(1) that the mother have sole parental responsibility for the children;
(2) that the children live with the mother;
(3) that while the father resides in New South Wales the father may spend time with the children on a supervised basis for a period of three to four hours on the following dates:
(a) Wednesday the 7th, 14th, 21st, and Thursday, 22 December 2011;
(b) Wednesday the 4th, Saturday the 7th, Wednesday the 11th, Saturday, 21 and 28 January 2012;
(c) Saturday the 4, 11, 18, 25 February 2012;
(d) Saturdays 3, 10, 17, 24 and 31 March 2012;
(4) that the visits set out above take place at times to be confirmed by the mother on written notice to the father seven days prior to the scheduled visit, and if the father is unable to exercise time he may notify the mother at least seven days prior to the scheduled visit;
(5) for the purposes of the father’s visits, supervision be as follows:
(a) the father’s time be supervised by the mother’s nominee, which will be [name omitted] or [name omitted] or other person agreed between the parties;
(b) the visits to take place in [N] at a place to be arranged by the mother as suitable to the supervisor;
(c) if there is any cost of providing supervision each party shall pay half of those costs to the supervisors in terms that may be required by the supervisor; and
(d) that the supervisor shall be responsible for the management of [X]’s diabetes;
(6) that the father be at liberty to contact the children by telephone or Skype from 8 am to 8.30 am Eastern Standard Time each Monday. IF the children are unable on any day for phone calls due to illness or emergency, the mother will notify the father by text of any alternate day in that week when the children will be available;
(7) that the father be restrained from:
(a) bathing, dressing, undressing or toileting the children; and
(b) exposing the children to graphic representations by DVD, video, computer games or print in any form that is violent, sexualised or demonic in nature.
The father sought orders in terms of a short minute of order admitted into evidence and marked exhibit K. He sought orders that provided as follows:
(1) that orders 8 and 9 – that is, orders for supervised time – made on 20 December 2010 be suspended;
(2) that the children spend time with the father as follows:
(a) each Saturday commencing 26 November 2011 until and including Saturday, 17 December 2011, from 9 am to 5 pm;
(b) on Friday, 23 December 2011, at 9 am until Saturday, 24 December, at 5 pm;
(c) commencing Saturday, 14 January 2012, and every alternate weekend thereafter from 9 am Saturday until 5 pm Sunday;
(d) on Saturday, 21 January 2012, from 9 am until 5 pm and each alternate Saturday thereafter;
(e) on Wednesday, 18 January 2012, and Wednesday, 25 January 2012, from 9 am until 5 pm on each of those days; and
(f) on such further or other occasions as the parties may agree in writing;
(3) that without admission by the father the father’s time with the children occur in the presence and under the supervision of at least one of the following people: [B], Mr T, Ms L and either of the husband’s parents;
(4) that during any overnight time for the children with the father the children shall sleep either at the home of [B] or the home of the husband’s parents;
(5) that without admission the father is hereby restrained from toileting and/or bathing the children during their time with him;
(6) that the mother deliver the children to the father at the residence of [B] at the beginning of the father’s time and the father shall return the children to the mother’s residence at the conclusion of time, provided that the father may elect that the children be delivered to his parents’ residence in lieu of [B]’s residence by giving the mother notice by SMS text message not less than 24 hours prior to the commencement of his time;
(7) that the parties are hereby restrained from denigrating the other party in the presence or hearing of the children or allowing the children to remain in the presence or hearing of any other person who is doing so;
(8) that the parties are each hereby restrained from discussing these proceedings with the children or either of them;
(9) that Dr R is requested to prepare an updated report addressing the same issues as set out in order 2 made on 20 December 2010 with interviews for the updated report not to occur before the week beginning Monday, 5 March 2012;
(10) that the parties do all acts and things necessary to facilitate the preparation of the updated expert’s report, including attending upon the expert as required and ensuring the children attend upon the expert as required;
(11) that the parties equally pay the costs of the updated report.
Admitted into evidence was the single expert’s report from Dr R. The report describes the child [X] as follows:
[X] presented as a bright, wirily-built, handsome, active nearly-six year old. He separated easily from his mother and attended with a container of snacks. Aware that he has diabetes, [X] was not sure what this is but he said he knew what it feels like to go low, at which times he tells mum. When asked, [X] thought it would be good to see dad the following day. He described him as a half-daddy, married to lots of people changed over. “He stayed with us then decided to live in Western Australia.” [X] said he felt a bit sad dad cannot live with him. He thought he was a nice daddy. “When he sees us he feels very happy.” And [X] feels happy to see his dad. He stated there was nothing “not nice” about dad, while “mum is a good mother.
The initial interviews with the children took place on 2 May 2011. The family reporter, Dr R, continues in relation to [X]:
[X] describes seeing his father “not very often” but did not know the reason for this. He would like to see him more often and have sleepovers with him. He did not want [Y] to be with him as then he does not have as much fun with dad.
On seeing his father and his sister, the family reporter observes as follows:
[X] raced ahead to go to the office to see his father. The children had a positive reunion with dad, who gave them a big cuddle. While [X] explored the toys, [Y] engaged her father with a puzzle and chatting to him. They played nicely with soft toys and Mr Rowe enabled her to do things.
The family reporter made contact with Mr B, head of junior school at [omitted] College where [X] was attending. In relation to this contact, the family reporter observes as follows:
[X] is well-liked by his peers, bright, athletic and well-behaved. Ms Helbig is a good support to the teachers as they help manage [X]’s diabetes. When she discussed her concerns about [X] lifting up an older girl’s shirt, Mr A had reassured her this was normal behaviour in a little boy trying to get attention of a girl that he likes.
In the report, the family reporter sets out much of the background history in relation to the parties and their engagement with various health professionals. In discussing the father on page 9 of the report, she observes as follows:
To an inquiry about his contribution to their difficulties, Mr Rowe reported having a different view to Ms Helbig, and she formed the view that he had a sexual obsession and so was a danger to the children. He stated that, “Ms Helbig is a private, almost secretive person, while he has a tendency to let his mouth move before his brain was fully engaged.” He declared he had no doubt that his behaviour contributed to their problems but he also had no doubt a normal person would not react the same way as Ms Helbig has. He stated he has had a number of relationships, including his first marriage, where there has not been the hostility he now experiences. Mr Rowe described how he and Ms Helbig came from very different backgrounds relating to attitudes and experiences regarding sex. He was from a culture of openness and tolerance, although still with strong traditional values about faithfulness and a belief in the equality of the sexes. In all of his close relationships of more than a few months duration, sex formed a wonderful and mutually satisfying component, except with Ms Helbig. She had quickly shared her views that sex was the strict domain of marriage and seemed to be hyper-vigilant, detecting and being critical of anything of a sexual nature. Around the end of the first year of their marriage, Mr Rowe felt they needed professional help to improve their physical intimacy, but Ms Helbig’s response to this suggestion was explosive and aggressive, and appeared hurt and upset. She allegedly blamed him, wholly asserting he had unreasonable expectations because of his experience with the sluts of his past relationships and exposure to pornography. Mr Rowe stated in the latter years of their marriage sex was a rare event and he believed occurred because of Ms Helbig’s desire to fall pregnant.
In discussing the issue of masturbation with Mr Rowe, the family reporter observes as follows:
He said he tried to justify there was nothing abnormal in his sexual appetite, while he felt he was expected to accept that he was perverted. When asked, he stated there is not a compulsory quality to his masturbation and opined there is no normal masturbatory habits. It depends on the person, while his libido could be killed by stress.
The family reporter in the section of the report entitled Summary and Discussion at page 14 makes the following observations:
[X] presented as a likeable, assertive, healthy nearly-six year old with good development. His parents and the maternal grandparents are significant people to him, while his paternal grandparents and older siblings appeared absent from his mental life (because they are absent from his everyday life). [X] wished to see more of his father and preferably to have his parents to himself without his sister to spoil the fun. However, he called him “half a daddy”, indicating his awareness of his father’s minimal involvement in his life. At his age, [X] could be concerned it is something about him that keeps dad away. His primary attachment figure is his mother and he would be sensitive to her fears and anxieties. It is highly likely that [X]’s changed behaviour after seeing his father is a sign of his distress. He misses his father and each contact will freshen the longing for him and the pain of separation. It is not an indication his time with his father should be reduced, as apart from this acute distress which is readily managed, [X]’s development is not being disrupted. Clearly it is in [X]’s and [Y]’s best interests Mr Rowe becomes more available to them.
The Court pauses to note that the circumstances of the report were that at that time the father was living in Western Australia and visiting New South Wales and the children itinerantly. Subsequent to the report and in October 2011 the father has now permanently relocated to New South Wales and, of course, in that circumstance, is much more available to the children.
In Summary and Discussion relating to [Y], the family reporter observed:
[Y] presented as a happy, age-appropriate two and a half year old with positive relationships with her parents, [X] and the maternal grandfather.
As to the mother, Ms Helbig, the family reporter observed as follows:
Ms Helbig presented as a conscientious, competent, very committed parent with anxious, obsessional personality traits. This disposition has enabled her to manage [X]’s diabetes very well without becoming overprotective of him as reported by their GP. I cannot support her evaluation that [X]’s age-appropriate interest in bodies is a sign of sexualised behaviour. I have concerns Ms Helbig and her father have pathologised [X]’s behaviour and possibly some incidents between Mr Rowe and the children. There are mismatched expectations and values between Mr Rowe and Ms Helbig who is vocally backed up by her father, which have created mistrust and hurt between them. Additionally, Mr Rowe’s behaviour has been experienced as aggressive and intimidating by Ms Helbig causing her to be fearful and anxious about his unpredictable actions.
The family reporter makes reference to the report from Mr A referred to above in the reasons for judgment and the contents of the letter dated on 23 August 2010. The family reporter had the opportunity of seeing Ms L, the father’s present partner, and in relation to her observed as follows:
Ms L presented as a mature, capable and thoughtful partner for Mr Rowe and will be an asset to him when he is spending time with the children. Within a supportive relationship Mr Rowe will hopefully function in a more sensitively and responsible manner.
The family reporter at page 16 of her report makes various recommendations. They are:
(1) that the children continue to live with their mother; (2) parental responsibility remain shared; (3) that Mr Rowe and
Ms L make appointments with the GP, Dr P, and until Dr P is satisfied they are competent to manage [X]’s diabetes.
There’s a recommendation that the father and mother attend Triple P parenting course aimed to provide them with normal child development and appropriate expectations to have of [X] and [Y].
It would be appropriate for Ms Helbig to continue to work with her counsellor.
The further recommendations are that until Dr P is satisfied that
Mr Rowe and Ms L are competent to manage [X]’s diabetes, that
Mr Rowe spend day only time with the children, always in the company of Ms L. A further recommendation was that Mr Rowe’s time with the children is day only until the children are comfortable spending time in the paternal grandparents’ or their sister’s home, following which overnight time should commence from Saturday am to Sunday pm. Bearing in mind that those recommendations are made in the context of the father at that time being resident in Western Australia, he is now much more available to the children.
The Legal Principles
The relevant principles in relation to parenting are well settled. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order the Court is to regard the best interests of the children as the paramount consideration.
Section 60CC then outlines the primary subsection (2) and additional subsection (3) considerations that the Court is to take into account in determining what is in the best interests of the children.
Section 61DA provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe the parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests.
If the presumption in section 61DA applies, this triggers the operation of section 65DAA which requires the court to consider whether equal time or substantial and significant time is in the children’s best interests and reasonably practicable.
In Goode & Goode (2006) FCA 1346, discussing the application of the presumption in section 61DA to interim proceedings, the Full Court observed at paragraph 56:
It is our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child or children that the children’s parents have equal shared parental responsibility as expressed in section 61DA subject to the qualifications in subsections (2), (3) and (4).
The Full Court outlined at paragraph 81 and following how interim proceedings should be conducted in the light of the amendments made to part 7 in 2006:
In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
Yet the Full Court importantly noted that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place. In SS & AH (2010) FamCAFC 13, the Full Court of the Family Court said as follows:
As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary but temporary measure until all of the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and often for very good reason a conservative approach or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of the party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence. The intuition involved in decision making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The Court has had regard to the objects and principles at Part VII of the Act set out in section 60B, to the principles for conducting child-related proceedings set out in section 69ZN, and to the paramouncy of the child’s best interests provided for in section 60CA.
As the Full Court opined in Marvel & Marvel, there are circumstances in interim proceedings where the court is simply faced with the reality of being unable to determine matters of fact. In those circumstances, the Full Court has provided that in such circumstances it may not be appropriate to apply the presumption as to equal shared parental responsibility. In the matter before the Court, such as it is on a part-heard basis and then with little uncontested evidence, it is not the Court’s view that in all of the circumstances the presumption should apply.
In that event, the welfare of the children the subject of these proceedings falls to be determined on best interest considerations pursuant to section 60CC of the Act.
The Court now turns to look at the best interest considerations set out in section 60CC, and as the Full Court noted in Collu & Rinaldo (2010) FamCAFC 53, that by reason of a possible overlapping of the considerations, the subject of section 60CC(2) and (3), it is best appropriate to consider the additional considerations set out in section 60CC(3) prior to returning to the primary considerations as set out in section 60CC(2).
The Court turns to look briefly at the additional considerations set out in section 60CC(3):
The views of the children.
Quite properly, the single expert did not seek to ascertain the views of the young child [Y]. However, it is clear that the child [X] seeks to have more time with his father and that he has a close and loving relationship with his father.
The nature of the relationship of the child with each of the child’s parents
There is no doubt that in relation to these children the mother is the primary carer, but as observed by the single expert, the father has a warm and loving relationship with both children, and since the family report was released in May 2011, the father has spent further time with the children more recently on the weekend of the 12 and 13 November 2011.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
This factor really focuses upon the mother. There is no doubt that it’s the father’s concession that the mother is, quite rightfully, to be and to remain the primary carer of these young children and that he will have such time with the children as is ordered by the court at a final hearing. However, the court has some reservations in relation to the mother’s willingness to facilitate a relationship with the father absent court orders making that happen. The background of that concern is set out in the reasons for judgment set out above and stems systemically from the evangelical background of both parties on and different views in relation to the role of sexuality in their relationship.
The mother has made certain allegations in relation to the father. At this stage they, as a matter of fact, have not been resolved by the Court but it’s important to note that those allegations are some 12 months apart. They are the only allegations raised by her in relation to concerns and yet remain to be tested during the course of her cross-examination.
The Court proposes to make orders that will facilitate the father having time with the children and it’s the Court’s expectation that the mother will abide by those orders.
The likely effect on the changes of the child’s circumstances.
The children will remain with the mother in her primary care and will spend time with the father. The only change in the children’s circumstances will be that the father’s time with the children will be more extensive than the fractured and supervised time provided for in orders in December 2010. The children will remain living with their mother at [N] and be able to spend time with the father under supervision arrangements to be implemented pursuant to the order that the Court proposes to make.
The capacity of each of the children’s parents or any other person to provide for the needs of the children, including emotional and intellectual needs.
The family reporter expresses some reservations in relation to the mother’s capacity in this regard. She is described by the family reporter to be a very committed parent with anxious and obsessional personality traits. Probably this part of her character has impacted upon the children in the way in which she conducts their day to day life. The family reporter observes also that, of course, there are mismatched expectations and values between Mr Rowe and Ms Helbig, the mother, which have created mistrust and hurt between them. This also will impact upon her capacity and understanding as how she is in a more normalised way to deal with the children’s emotional and intellectual needs. The Court has no reservations as to the father’s capacity in this regard, particularly in relation and in the context of the orders proposed to be made.
The maturity, sex, lifestyle and background of the subject children and of either of the children’s parents.
This factor has little or no significance in the considerations of the Court in this matter today.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the child’s parents.
There is no doubt that the mother by reason of the father unilaterally absenting himself to Western Australia has accepted and undertaken these responsibilities in a caring and nurturing fashion for these children. They are young children that for some time have had their father in and out of their lives and the mother has demonstrated in her capacity to have the children present to the family reporter as they did, a proper attitude and responsibility to those aspects of parenthood that impact upon the children.
The Court has no reservations about her having an appropriate attitude subject to the observations made above in this the Court’s reasons for judgment.
In relation to the father, there is certainly some concern in relation to the father that he has unilaterally – and for whatever reason, be it financial, emotional or otherwise – absented himself significantly from the young years of his children’s life. The Court is hoping that his commitment to return to New South Wales is now final and that he will remain living in New South Wales as he has done so since late October 2011. A proper assessment of his attitude and responsibilities is yet to be determined. He remains unemployed. He provides no financial assistance for the children. Perhaps over the ensuing months until final hearing some aspects of this factor will become much clearer in relation to the father.
Whether it would be preferable to make an order that would be at least likely to lead to the institution of further proceedings in relation to the children.
These are interim proceedings and of course the proceedings are moving to a final hearing and final resolution in May 2012. This factor has no relevance.
Any other fact or circumstance the court thinks is relevant.
There is nothing in relation to this circumstance.
The primary considerations
These are set out in section 60CC(2) of the legislation, and perhaps in relation to the context of this interim hearing these primary considerations loom significantly.
The first consideration is the benefit to the children of having a meaningful relationship with both of the children’s parents. The mother’s position is that she seeks to restrict the father’s time with the children in an artificial way to time periods of only some hours in duration, and subject to the artificial environment and supervision at her whim.
The father, of course, seeks a transition of time with the children so that his time with the children moves out to being more significant and meaningful, and he concedes for the purposes of the interim orders that his time should be supervised on a without admission basis.
In Mazorski & Albright, Honour Brown J considered the definitions of “meaningful” and made various observations. He concluded that a meaningful relationship or meaningful involvement is one which is important and significant and valuable to the child or children. In McCall & Clark the Full Court of the Family Court of Australia at (2009) FamCAFC 92 accepted as appropriate this interpretation of meaningful relationship by his Honour in Mazorski & Albright.
It is clear the children need to have a meaningful relationship with their father in qualitative terms, and the Court proposes to make orders that will facilitate that occurring.
The second primary factor is the need to protect the children from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence. In this matter, this in reality is the crux of the issue. The parties come from different backgrounds in terms of their attitude to sex in the marriage and also generally to their attitudes which differ markedly in terms of the mother and the father from what the single expert discusses as the norm accepted by society. The mother has sensitive and protective views in relation to this aspect of their relationship, particular as it impacts upon the children. The need for those views is yet to be tested but the Court appreciates and understands her concern in the context of her own views as to the appropriateness or otherwise of the father’s background.
The father, of course, denies any untoward behaviour in relation to the subject children, particularly the child [X]. The mother makes allegations that are limited in nature relating to only two circumstances, and, of course, to one circumstance where she asserts that the child [X] made certain disclosures to her, disclosures, of course, which have never been communicated by her to the father, nor were the circumstances he says in relation to the bathing incidents communicated as a concern to him prior to the commencement of these proceedings.
In any event, the father’s position in relation to interim orders is that his time with the children is to be supervised on a without admission basis by the various supervisors who have given evidence before the Court today, and in the context of the mother’s concerns, it’s the Court’s view that such supervision is proper and adequate until the factual circumstances leading to the mother’s concerns can be fully explored and tested in the context of the remaining hearing of this matter.
The Court is concerned to make orders that in an ordered in proper way and a protective way provide for the father now that he is back in New South Wales to have an ordered and constructive relationship with the children, a relationship that in terms of section 60CC(2) is meaningful in that it is valuable to the children in restoring their relationship with their father to a circumstance where it should have been should he not have removed himself to Western Australia.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 29 November 2011
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