Russell and West

[2012] FamCA 131

FAMILY COURT OF AUSTRALIA

RUSSELL & WEST [2012] FamCA 131

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Russell

RESPONDENT: Ms West

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 4352 of 2008

DATE DELIVERED: 28 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ross

SOLICITOR FOR THE APPLICANT: Holding Redlich

COUNSEL FOR THE RESPONDENT: Mr Hall

SOLICITOR FOR THE RESPONDENT:	Barbayannis Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms MacGregor

Orders

1. That there be orders of the Court and orders BY CONSENT of the parties in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the applicant husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That pursuant to s.65DA(2) and s.62B, 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.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & West 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 MELBOURNE

FILE NUMBER: DGC 4352 of 2008

Mr Russell

Applicant

And

Ms West

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 28 February 2012, I made orders altering a parenting arrangement.  I indicated at the time that I would give reasons.  Here are those reasons.

2. This case is a parenting dispute which is listed for final hearing in May 2012 before me.

3. When the matter was listed before on 1 February 2012, it had been anticipated by the parties that the final hearing would be in February.  The Court’s resources altered after that time and hence the matter was before me to determine what to do with the final hearing.  The solicitor for the husband informed me on that date that his client was ready to proceed and if there was to be a delay, he wished to make an application for interim parenting orders.  I required him to file a formal application having regard to the nature of the dispute and he did so.  Accordingly, on 28 February 2012, I heard the application in a case filed by the husband on 8 February 2012.

4. The mother did not file a response to that application in a case but she did file her affidavit of evidence in chief for the forthcoming trial.  That was filed on 24 February 2012 and I was asked to read that material as part of the interim determination.  Both parties were represented and the Independent Children’s Lawyer appeared.

5. Despite the nature of their respective applications, there were only two issues upon which I was required to make a determination.  They were:

   (a)should the existing time between the husband and one of two children be extended to overnight on a Wednesday night; and

   (b)which of the forthcoming Easter school holidays should the husband spend with that one child and under what circumstances, for the reasons which will become apparent.

6. The parties commenced their relationship in 2000 and it came to an end in November 2008.  There are two children of their relationship.  T is 10 years of age and J is 8 years of age. 

7. In 2009, the parties had final orders made in parenting proceedings which culminated in the children spending eight nights out of fourteen with their father. 

8. In December 2010, serious allegations were made by the mother against the father including that of sexual abuse relating to T.  Those allegations have consistently been denied.  Those allegations are central to the parenting dispute that is to be determined in May 2011.

9. The parties’ relationship has not been without its difficulties.  In June 2011, there were proceedings in the State Magistrates’ Court in which the mother sought intervention orders not only in relation to herself but also the children.  Orders were made but they were subject to an appeal and in December 2011, the County Court of Victoria, after a contested hearing, discharged the orders relating to the mother and J but left the order relating to T in existence for the ensuing twelve months.  That order is extant.

10. On 16 November 2011, this Court made interim orders concerning J.  The father’s time with J was to be inter alia, on Wednesdays after school until 7.00pm.  The father’s time with T has been supervised since orders were made in 2010.

11. Significantly in these proceedings, in January 2012, the father had J for one week without restrictions and having read the affidavit material of the mother as well as the father, all indications are that it was a successful time.

12. To compound the difficulties, the mother has re-partnered and is expecting a child by elective caesarean surgery around Easter.  That timing gave rise to an argument about whether J should spend a precise time with his father where it was suggested at the last minute that he would travel to Perth with his father for a holiday with extended family.  The argument was whether J should be with his mother at the time of the birth of what will be a sibling.  The obvious difficulty is that although the mother is due to give birth on 6 April, the elective surgery is on 9 April and on past history, apparently, the mother may deliver early in any event.  The question is whether or not the holiday with the father should take precedence over J being around the mother at the time of the birth of a new baby.

13. Those are the two issues.

14. The material upon which the parties relied was the affidavits of the mother and her partner filed on 24 February 2012 together with a report by psychologist Ms M in June 2009 which was done for the proceedings then contemplated.  The father relied upon his affidavit filed 8 February 2012.  The Independent Children’s Lawyer drew my attention to the observations of Dr A in an affidavit filed 28 February 2012. 

15. The father’s arguments were that if he had J overnight, he would have the benefit of spending time with J doing schoolwork, reading, playing games and readying the child for both bed and school.  Those matters are clearly matters within the definition of significant and substantial time in the Family Law Act 1975 (Cth) (“the Act”).  To support his evidence, he said that he had done a variety of parenting programs and he had the capacity to provide for the physical and emotional needs of J.  It was not argued that there should be any alteration to the orders in relation to T.

16. In relation to the holiday, it was suggested that the importance of having the holiday with the father and his extended family in Perth outweighed the benefit of being around for the birth of a child with whom a relationship could be established in due course.

17. Counsel for the mother pointed to the fact that in 2009, Ms M had articulated and counselled against a splitting of siblings pointing to the obvious benefits of children having a bonded relationship together.  That was the way that the consent orders were made.  In a recent family report undertaken by a family counsellor of this Court, the question of the separation of siblings was left unresolved and I have raised with the parties the question of canvassing that issue with the expert so that the evidence is available at trial.

18. The mother’s counsel pointed to the fact that the children had never been separated and were the only constant in their respective lives.  He submitted there was no reason to make changes on an interim basis with a significant trial pending.

19. I am not in a position to make any findings of fact nor should I concerning those matters that are hotly contested.  They will no doubt become the issue at trial.  What cannot be argued however is that at least until the end of 2010, the father was a significant, if not the primary, carer of these two children.  There was nothing that I read in the affidavit material of the mother which expressly denied the father having the capacity to care for at least J.  As I pointed out to counsel for the mother, J had spent a week with his father over the summer holidays and there was no suggestion in the mother’s affidavit material filed subsequent to those holidays, of J’s distress in being absent from the mother or T. 

20. Furthermore, it was common ground between the parties that there would be time between the child and the father at Easter which would amount to the best part of a week.  On any view therefore I must conclude that the mother has sufficient confidence in the father’s capacity to care for J such that the argument about the separation of siblings has little weight.

21. It is also important to recognise that when Ms M undertook her psychological report in 2009, the children were very much younger and a lot of water has passed under the bridge since that time. 

22. As I pointed out to the parties, the only issues that I was determining related to time. 

23. Dealing with the second of the two issues, it is clear that the parties do not communicate well and I do not have confidence in them to determine what time will be spent between J and his father.  It places the potential trip to Perth at some risk.  In my view, the balancing of interests means that I must give much greater weight to the relationship between J and his father than between J and an unborn child.  As I pointed out, the significance of the birth of a new child might make it more significant for the focus of the relationship between J and his mother so that it might be important for J to understand where the new child fits into her household.  Attendances at hospitals and the like are not going to make a significant difference in that respect.

24. Accordingly, on the evidence before me, there is no reason why J’s time should not progress to an overnight as it would have if the father was having significant and substantial time.  In addition, as far as the holidays are concerned, the uncertainties surrounding the birth of a child mean that I should fix the dates so that there is no uncertainty.  Whether the birth of a child during that period warrants the mother asking the father to return is a matter between the parties.

25. Section 60CA of the Act requires the Court to make an order which is in the best interests of the child and to determine that issue, the Court must look at the matters set out in s 60CC.

26. There is no suggestion in this case that J does not benefit from the meaningful relationship with both parents.  There is no suggestion in this case that J is at risk of physical or emotional harm by an order.  The issue is about time.

27. The other factors in s 60CC have been canvassed in part above.  There is no question about the parental responsibility or capacity in this particular argument.  I do not intend to give any weight to the views of J having regard to the fact that he is eight years of age and I have not had an opportunity to have any of the evidence tested.  All of the other factors in s 60CC(3) are matters upon which findings cannot be made and must wait for trial.

28. The family violence order was extant until December and it was discharged by order of a court after a hearing.  I must take that into account.

29. It is not appropriate that I make findings in respect of what has happened in the past because all of those matters are going to subject to the evidence that I will no doubt hear in May.

30. I find therefore that it is in the best interests of the child J that orders be made in terms of what I indicated to the parties and which have now been formally made.

31. The father also sought a variety of injunctive orders.  The underlying premise in those orders was that he wanted to ensure that the mother did not interfere with J’s attendances at school to preclude him form having his time with J.  Two out of the three orders proposed by the father were consented to by the mother with the understanding that she made no admission as to their basis.  The third one however required a very generalised order and as I indicated to the parties in the circumstances, it was a recipe for further argument and I was not prepared to make it.

I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 February 2012.

Associate: 

Date:  28 February 2012