Saltlake and Yadegari and Ors

[2010] FamCA 1235

FAMILY COURT OF AUSTRALIA

SALTLAKE & YADEGARI AND ORS [2010] FamCA 1235

FAMILY LAW – CHILDREN – Interim orders pending final hearing in February 2011

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60CC(4), 61DA(1), 61DA(3), 65DAA(1), 65DAA(2)

Aldridge & Keaton (2009) FLC 93-421
Goode & Goode (2006) FLC 93-286

Marvel & Marvel (No. 2) [2010] FamCAFC 101
McCall & Clark (2009) FLC 93-405

Simpson & Brockman (2010) 43 Fam LR 32

APPLICANT: Mr and Mrs Saltlake Senior

1st RESPONDENT: Ms Yadegari

2nd RESPONDENT: Mr Saltlake

3rd RESPONDENT: Mr and Mrs Yadegari Senior

INDEPENDENT CHILDREN’S LAWYER: David Ridge, Barker & Barker

FILE NUMBER: CAC 295 of 2008

DATE DELIVERED: 2 November 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 2 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. Osmand

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Ms V. Baker

SOLICITOR FOR THE 1ST RESPONDENT: McIntosh Emerton Thomas Solicitors

COUNSEL FOR THE 2ND RESPONDENT: Mr G. Stagg

SOLICITOR FOR THE 2ND RESPONDENT: Legal Aid Commission (ACT)

COUNSEL FOR THE 3RD RESPONDENT: Mrs Yadegari Senior appeared in person; no appearance by Mr Yadegari Senior

SOLICITOR FOR THE 3RD RESPONDENT: Self-represented litigants

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D. Ridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barker & Barker

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. a.     M, born … June 2002, will spend time with her mother, Ms Yadegari, for a period of two hours each month, at such time or times as may be agreed between Mr and Mrs Saltlake Senior and the mother.

   b.If the same parties fail to reach such agreement then the time will be on the first Saturday of the month, or if that time is not available at the Interrelate Centre, at such time as the Interrelate Centre can arrange for the child to spend time with her mother.

2. I authorise and direct the Independent Children’s Lawyer to communicate with Interrelate to try to establish an appropriate pattern that will ensure that time can be spent between the child and her mother.

3. The application on behalf of the mother that there should be an independent expert appointed (Dr B) for the purposes of preparing a further family report in these proceedings is refused.

4. I direct that any further affidavit upon which any further party seeks to rely will be filed on or before 4.00pm on 30 November 2010.  No affidavit filed after that time will be taken into account in the final hearing. 

5. I set the final hearing to be heard before me on 14 to 16 February 2011.

6. I appoint 8.00am on 17 December 2010 in Chambers for review to ensure the trial material is available.

7. I give leave for the Independent Children’s Lawyer to issue subpoenas to: the D Hospital (in relation to the medical records relating to the mother); the Greater Western Area Health Service (particularly in relation to the services provided by Dr P to the mother); Dr R (the mother’s General Practitioner); and to the NSW Police Service (in relation to any records of reports or other matters in relation to the mother and in relation to her mother Mrs Yadegari Senior). 

IT IS NOTED that publication of this judgment under the pseudonym Saltlake & Yadegari and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 295 of 2008

MR AND MRS SALTLAKE SENIOR

Applicant

And

MS YADEGARI

Respondent

And

MR SALTLAKE

Second Respondent

And

MR AND MRS YADEGARI SENIOR

Third Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before me relate to a oral application made late today that there should be a change in the existing orders relating to the time that M (‘the child’) spends with her mother, pending the final hearing of this matter which is now scheduled to begin on 14 February 2011. 

2. The respondent mother seeks orders that all the parties have equal shared parental responsibility for making decisions about the day‑to‑day care, welfare and development of the child when she is with each of them.  In this regard, the respondent mother seeks (in order 4 of a document handed up to me in Court), that she shall spend time with, and interact with, the child as follows:

   ·On each alternate weekend, from 5.00 pm Friday to 5.00 pm Sunday, and for the first half of each gazetted New South Wales school holidays, alternating with the second half in year about;  

   ·There is further an order sought that the respondent mother will communicate with the child by telephone each Wednesday, between 6.30 pm and 7.30 pm, by letter, email or other electronic means; 

   ·There is an order that the mother will in fact implement the child spending time with her –  I am not sure in the terms of the order what this actually means; and

   ·There are orders sought about matters relating to medical procedures. 

3. At the same time as the application on an interim basis was made, the original response that had been filed by Ms Baker on behalf of the respondent mother was withdrawn.  In lieu thereof is an application substituting the words “respondent, maternal grandparents” for “applicant, paternal grandparents” at the final hearing.  I will return to that matter in due course.  It perhaps suffices to say that there is no agreement (as indicated to me today by the maternal grandmother) from the maternal grandparents (the third respondents) that they would be prepared to be the principal carers for the child and that the child would primarily live in their home.  That application appears to be, at least, somewhat misconceived. 

4. The matters that I have to take into account in determining an issue relating to an order in relation to a child have been discussed in a number of decisions of this Court.  Since the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was effected, the approach set out by the Full Court of this Court in Goode & Goode[1] mandates that I must determine the issues in dispute between the parties (on an interim basis) with reference to various sections of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).

   [1] Goode & Goode (2006) FLC 93-286.

5. First, I turn to the question of whether the presumption of equal shared parental responsibility should be applied in relation to the child.[2]  

   [2] Family Law Act 1975 (Cth) s 61DA(1).

6. In fact, no such order is sought in the material before me, except on a day‑to‑day basis.  Assuming, however, for a moment that, notwithstanding its omission from the documents before me, such an order is sought on behalf of the mother I indicate the following.  I find that the presumption as it might relate to the mother, the father and the paternal and maternal grandparents (all of which might have been possibilities) is clearly and unequivocally, in the circumstances of this matter, rebutted on an interim basis.[3] 

   [3] Family Law Act 1975 (Cth) s 61DA(3).

7. There is no basis upon which parties that are barely able to communicate with each other through their lawyers, would be able to share the responsibility for making decisions on a regular basis about things that are important to the child.[4]  This is particularly so in circumstances where there has not been any final determination about the place in which she is likely to primarily live, and the time that she will spend with each of the relevant people in her life.

   [4] Marvel & Marvel (No. 2) [2010] FamCAFC 101, [103] (Faulks DCJ, Boland & Stevenson JJ).

8. Accordingly, as I have found the presumption is rebutted, it is unnecessary for me to consider, in accordance with s 65DAA(1) and s 65DAA(2) of the Act, whether the child should spend equal time, or substantial and significant time, between her mother and, in this case, her paternal grandparents. In any event, it is quite clear that neither of those arrangements would be reasonably practicable in the present circumstances, not the least because it is not feasible for her to spend equal time with her mother, and as her maternal grandparents have rejected the proposition that they would be able to accept that responsibility, it could not happen in any event.

9. Those things taken into account, I must therefore consider what would be the order that is in the best interests of the child. In this regard, the Act provides some guidance as to the factors I am to take into account in s 60CC – which outlines the primary and additional considerations that must be considered in determining the question.

10. The first primary consideration is the “benefit to the child in having a meaningful relationship with both the child’s parents”.[5]  In this context, what constitutes a meaningful relationship has been the subject of some judicial consideration.   In particular, I refer to the decision of the Full Court of this Court in McCall & Clark,[6] where their Honours relevantly stated in paragraph 115:

    115. The phrase “meaningful relationship” in the context of s 60CC(2)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:

    What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. 

    [5] Family Law Act 1975 (Cth) s 60CC(2)(a).

    [6] McCall & Clark (2009) FLC 93-405.

11. Their Honours then went on state at paragraph 116:

    116. Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders (2007) FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC 93-313 of the effect of the amending Act and said at paragraph 33:

    The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case.  For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

    and later at paragraph 36 said:

    It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate.  Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

12. What is at issue in this the matter before me, is the effect of the existing orders continuing, which was the ultimate position adopted by the respondent mother in these proceedings.  Would this be more likely to generate a meaningful relationship with her mother, or would the alternative, which is suggested by the family consultant, be more appropriate.

13. A “meaningful relationship” is agreed, in this context, as being something that the child will enjoy, something that is significant, and something that will lead to a development of a better relationship, I suppose, in the context of these proceedings.  It seems difficult for me to contemplate that a non-attendance, for 50 per cent of the time ordered, is likely to be an advantage in developing a proper and more meaningful relationship between the child and her mother, but it may be that that situation is able to change.  The child’s mother may find that she can in fact contribute in that way.

14. On that basis, it might be argued that it is more meaningful for the child to have time with her mother every second weekend rather than once a month.  It remains to be seen if that also involves, (as it does) the child having a long trip to New South Wales whether this may in fact cause her to resent the time she spends with her mother, as it appears from the family consultant’s report, that she does at present - at least, to the extent that it precludes her from being able to do the things that she wants to do.  

15. The second primary consideration is the “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.[7]   It is not suggested, at this point, on the evidence before me, that the child is likely to be in any physical harm from spending time with her mother.  There are some psychological consequences associated with disappointment, caused by the failure on the part of the respondent mother to attend, but that is a matter which lies, to a large extent, in the hands of the mother.

    [7] Family Law Act 1975 (Cth) s 60CC(2)(b).

16. The other matters I am to take into account are the views expressed by the child, weighted according to her age.[8]  She clearly would prefer, according to the family consultant, to spend the shorter time with her mother.  But then again, at her age, it seems to me that there is perhaps not a great deal of weight to be attributed to that in the context of an interim hearing.  I note, however, that to the extent that it is a factor, it is a factor which operates against the continuation of the existing orders. 

    [8] Family Law Act 1975 (Cth) s 60CC(3)(a).

17. The nature of the relationship of the child, with each of her parents, and other people in this matter,[9] is a matter of some dispute.  The evidence that would suggest that there is not a good relationship between the paternal grandparents and the child is almost non-existent.  Given that I have been informed, on behalf of the respondent mother, that there will be no further evidence filed, it is difficult to see how that could as a proposition meaningfully be developed.  The child’s relationship with her mother, at the present time, is, I think, probably best described as “embryonic”.  It is embryonic, because while her mother expresses a concern about the child, and expresses a concern about the need for the child to have the security and constant love of a mother, these are aspirations, as expressed by the mother, rather than translated into practical day‑to‑day activities.

    [9] Family Law Act 1975 (Cth) s 60CC(3)(b).

18. In any event, I am prepared to accept that the relationship between the child and her mother is a developing one, and one which has more positives than negatives, and one which is important for her future.  That is a matter that is agreed by all parties, and by the family consultant. 

19. The relationship with the child’s maternal grandparents is almost an unknown factor, so far as I am concerned, and so far as these proceedings are concerned, and it does not seem to me that is a strong factor at this particular point, except to the extent that the maternal and paternal grandparents do not get on.  Hence a solution to the time that the child might spend with her mother is not going to be found in the context of that antipathy.

20. In addition, as I indicated, the child’s maternal grandmother has indicated that she and her husband are not prepared to accept the additional responsibility of the child’s living or spending substantial or significant time with them. 

21. There has been demonstrated, on the part of the paternal grandparents, a willingness to physically bring about the continuing relationship between the child and her mother.[10]  

    [10] Family Law Act 1975 (Cth) s 60CC(3)(c).

22. There is some dispute in the authorities presently as to the extent to which this section might be interpreted as extending to other significant people in the child’s life.[11]  In my opinion, in circumstances where there is a person who is not a parent, but who is in loco parentis, it should include that person. Even if it does not in its specific terms, it is a matter that is properly to be taken into account, under s 60CC(3)(m) of the Act – that is “[a]ny other fact or circumstance that the court considers is relevant”.

    [11] See Aldridge & Keaton (2009) FLC 93-421; Simpson & Brockman (2010) 43 Fam LR 32.

23. So whether it comes in primarily or secondarily seems to me not to matter.  I take account of, at this stage, the physical willingness of the paternal grandparents – and to the extent that he is part of this activity as well, the father – in allowing the continuing relationship to occur.  There is some dispute, it appears, from Ms Baker’s questions to the family consultant, about the intellectual and emotional, and psychological commitment of the paternal grandparents to the continuation of that relationship, but there is no evidence before me about that matter in these proceedings.

24. I am also obliged to take account of the likely effect of any change in the circumstances on the child, if I were to make the orders that are being sought.[12]  It is quite clear that to continue those orders, as the mother seeks, will expose the child to more travel and possibly to more car sickness, and possibly to more disappointment.  That is a matter which the mother is going to have to answer in the final proceedings, but it is a matter which I have laid squarely on the table in these proceedings, and no doubt will be attended to accordingly.

    [12] Family Law Act 1975 (Cth) s 60CC(3)(d).

25. I have looked at the practical difficulties[13]in the child spending time with her mother.  They are extreme.  There are very few choices in this matter.  The family consultant, whose evidence on this point I accept, says that it is important for the child at this stage in her development, and in the circumstances in which she finds herself, to have the time she spends with her mother, at this point, supervised by someone that she knows and trusts, or by a professional person.

    [13] Family Law Act 1975 (Cth) s 60CC(3)(e).

26. “Interrelate” has provided a good opportunity for this to occur in the past.  There is no suggestion either from the mother or from the child herself that this has not proved to be satisfactory, at least in a limited way, up until now.  There is no other person, other than the paternal grandparents and the father who might provide the assistance on the bases set out by the family consultant. 

27. In such circumstances, it is difficult to see how any choice can be made other than that, at least for the time being, that the child spends time with her mother on a continuing basis at the “Interrelate” facility in New South Wales.

28. In such circumstances, there is of course the difficulty, both for the child and for her mother, in arriving there in a way that enables them to spend time with each other.  Unfortunately, there are few choices, and unfortunately, again, if the choices are to be confined to the fact that she goes once a month or once a fortnight, the difficulties associated, and the practical difficulties in expense of travelling will be doubled.  That is a matter which I have to take into account in making a determination. 

1. I am obliged also to look at the capacity of each of the child’s parents, and other people, including any grandparent or other relative of the child, to provide for the needs of the child.[14]  I am satisfied that, at present, in the orders that exist, the child’s physical day‑to‑day care is well coped with by the paternal grandparents.  I am satisfied also that the mother is capable of looking after her in the context of supervised time, as is contained in the existing orders or as would be modified if I were to accept the recommendation of the family consultant.  I note that the recommendations of the family consultant had been the subject of testing today, by cross-examination over a relatively extended period, by Ms Baker.

   [14] Family Law Act 1975 (Cth) s 60CC(3)(f).

2. I am also required to look at how either of the parties might provide or have capacity to provide for the emotional and intellectual needs of the child.  I am satisfied from the evidence of the mother, in her affidavit in support of her application that she is able to contribute to the child’s intellectual development in the ways in which she sets out in her affidavit.  Whether or not she is capable of supporting the child in an emotional sense is perhaps more problematic, given that she seemed to find it appropriate, as she sets out in her affidavit, to discuss her future marriage plans in a way which would only, one would have thought, have provided a degree of uncertainty for the child.

3. However, again, this is a matter for the future, and interestingly, if a suitable partner is found by the mother’s parents between now and the hearing of the case, we will have very little information about how the child relates to her step‑father, and how he might relate to her.  That is a matter for the future, not for today. 

4. There are cultural differences[15] between the paternal grandparents and father on one side, and the mother and her parents on the other side. Those are factors which, although they have been raised by Ms Baker in the course of her submissions and questions, have not been the subject of specific evidence. There is, if anything, a factor in this which would militate against there being an order for shared parental responsibility on a long‑term basis. It is, however, also easy to demonstrate, from this particular provision of the Act, that it will be important in the future that the child has access to both of the cultures. Both parents and the grandparents are going to have to take some trouble to ensure that she is both preserved from any conflict which may result from such exposure, and also has the opportunity to take advantage of the things that are good in both cultures, and to import them into her life.

   [15] Family Law Act 1975 (Cth) s 60CC(3)(g).

5. I have commented already about the attitude of each of the parents, and other relevant people, to the responsibilities of their parenthood or step-parenthood, in relation to the child.[16] 

   [16] Family Law Act 1975 (Cth) s 60CC(3)(i).

6. I am satisfied that there are no issues relating to family violence, which impinge upon my decision on an interim basis.[17] 

   [17] Family Law Act 1975 (Cth) s 60CC(3)(j) & s 60CC(3)(k).

7. This is an interim order, and it is therefore an order which, of its nature, will not be permanent.  Consequently, I do not consider that I need to comment much about whether the order would be the least likely to bring about further litigation.[18] 

   [18] Family Law Act 1975 (Cth) s 60CC(3)(l).

8. I am also obliged to take account of the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent.[19] 

   [19] Family Law Act 1975 (Cth) s 60CC(4).

9. Section 60CC(4) relevantly provides as follows:

   Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a) has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long‑term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child; and

   (b) has facilitated, or failed to facilitate, the other parent:

   (i) participating in making decisions about major long‑term issues in relation to the child; and

   (ii) spending time with the child; and

   (iii) communicating with the child; and

   (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. 

10. The opportunities have not existed in relation to s 60CC(4)(a)(i). The mother has not taken the opportunity to spend the time with the child she might have. The opportunity to communicate with the child appears, at least on the child’s report, not to have been taken up in a way that is satisfactory. To that extent, I would be obliged to consider that the mother has, in those circumstances, failed to take advantage of the matters that the Act requires her to do.

11. Those then are the relevant matters, in my opinion.  The original application, orally made for interim orders pending a final hearing, was totally misconceived, and to the extent that it was persisted with represents a total misunderstanding of the nature of the evidence as it exists, and of the relationships as they currently are, and of the complications that arise in most of the matters I have already referred to.

12. As amended, latterly, at the end of her submissions, Ms Baker said that the existing orders should continue until the final hearing.  This is perhaps a retreat from the extreme and difficult position represented by the original interim orders, but still stops short of what had been recommended, and been the subject of fairly close cross-examination, without any change by the family consultant.  In the ordinary course of events, it would be appropriate to say that the existing orders should remain in place until a final hearing, on the basis that there will be no justification for a change for such a short period.

13. In this situation, however, where it has been urged on me most strongly, by Ms Baker on behalf of the mother, that I should consider and bring about a change in the existing orders, I have been obliged to consider all of the relevant matters under the Act. In doing so, I must, in the circumstances, make a decision which is in the best interests of the child, and not simply make a decision on a pragmatic basis until the final hearing can be accomplished.

14. Accordingly, for the reasons that I think appear sufficiently from what I have outlined above, it is appropriate that I should make orders that would reduce the time that the child spends with her mother to two hours once a month, such time to occur at the “Interrelate” facility, and to be supervised by that organisation during that period.  I will make orders indicating that. 

15. In general terms today, I would ask that the Independent Children’s Lawyer should make inquiries of “Interrelate” to see if the time can be adjusted, so that the mother is able to attend by bus, if that becomes necessary, and if such an arrangement is possible, I will issue a revised order which will incorporate those times.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 2 November 2010.

Senior Legal Associate:

Date:  24 January 2011