Sawer & Anor and Hugh

[2010] FamCA 344

FAMILY COURT OF AUSTRALIA

SAWER AND ANOR & HUGH [2010] FamCA 344

FAMILY LAW – CHILDREN – interim parenting application – whether in best interests of children to spend time with paternal grandparents and paternal family – application dismissed

Family Law Act 1975 (Cth) ss 60CC2, 60CC3

Goode & Goode (2006) FLC 93-286

FIRST APPLICANT: Mr Sawer Snr

SECOND APPLICANT: Mrs Sawer Snr

RESPONDENT: Ms Hugh

INDEPENDENT CHILDREN’S LAWYER: Mr D. Walker

FILE NUMBER: LNC 511 of 2008

DATE DELIVERED: 2 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Zeeman Kable & Page

COUNSEL FOR THE RESPONDENT: Mr D. Lewis

SOLICITOR FOR THE RESPONDENT: Temple Smith Partners

INDEPENDENT CHILDREN’S LAWYER David Walker & Co

Orders

1. That until a Notice of Address is filed to the contrary the address for service of documents for Mr and Mrs Sawer Snr be noted in the records of the court as Zeeman Kable & Page, solicitors with the solicitor concerned being Ms C Gibson.

2. That the oral application of the paternal grandparents to spend time with the twins E born … January 1999 and H born … January 1999 prior to the final hearing be and is hereby dismissed.

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

4. That paragraph 5 of the Order One made on 22 February 2010 be extended so that the paternal grandparents file and serve any further evidence upon which they propose to rely in relation to parenting matters by Wednesday 3 March 2010 at 4.00 pm NOTING THAT they can avail themselves of filing by facsimile or filing electronically.

5. That leave is granted to the independent children’s lawyer to file such evidence as he proposes to rely upon at the final determination of parenting matters but reserve to the trial any issue of the independent children’s lawyer’s reliance on such evidence.

6. That leave is granted to the parties generally to cause subpoenae to issue to produce documents or to give evidence and IT IS DIRECTED that any such subpoenae be referred to my Associate.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 511 of 2008

MR SAWER SNR

First Applicant

MRS SAWER SNR

Second Applicant

And

MS HUGH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me today on an oral application by the paternal grandparents, Mr and Mrs Sawer Snr (‘the grandparents’), to spend time with the twins, E and H, born in January 1999, on the weekend commencing 5 March 2010.  One feature of the time is that it would allow the twins an opportunity to celebrate the birthday of their sister C in March 2010.  C is the child of the relationship formed by Mr Sawer, who is the father, with one Ms B.

2. When I gave leave for the application to be made orally on 22 February 2010, counsel for the respondent mother requested an adjournment so that his client could have time to consider her position.  Procedural fairness required that I accede to that request.  Yesterday the mother filed an affidavit, sworn on 25 February 2010, opposing any time with the grandparents.

3. The twins’ father has withdrawn from these parenting proceedings.

4. The grandparents are represented by Ms Gibson, solicitor, who now acts on their behalf in these proceedings.  Ms Gibson’s firm is to be noted as the address for service of the grandparents. 

The application

1. The grandparents’ application is that the twins spend time with them from after school on Friday 5 March to the commencement of school on 9 March 2010.  They would agree to not permit the children’s father, or his partner, Ms B, to be left unsupervised with either of the twins. The grandparents would be responsible for all travelling associated with the time. 

2. The grandparents make clear that in the event that the four or five days which they seek in the forthcoming weekend is not ordered by the court, then they will take any part of that weekend in lieu. I note that C’s birthday party, which will be attended by other children, adults and family members, is scheduled for Sunday 7 March at 12.30 pm. 

3. The grandparents rely significantly on the family report of Ms N dated 19 February 2010.  They refer to Ms N’s observations that the twins are anxious to participate in C’s birthday. Ms N refers to the grandparents’ time as involving the father and their brother J, born in May 1996, and the father’s other family.  Any time spent with the grandparents will necessarily involve time being spent with their father and J. J has been in the care of the father since the middle of last year, whilst orders were in place which provided for J to live with the mother and spend no time with the father.  It is my assessment that whilst the grandparents have a significant relationship with the twins, they are essentially a conduit to the paternal side of the family. 

4. The solicitor for the grandparents relies on statements by the children that they were disappointed at not being able to participate in C’s second birthday in 2009.  It is not clear to me whether the children appreciate that any inability to participate in C’s birthday was at least in part a casualty of the manner in which the father conducted himself in March 2010. 

5. They have not seen the children since approximately August last year.  They say that a long visit, of 5 days, is preferable because short visits have in the past proved distressing for the children. 

6. Finally, the grandparents rely on the opinion of Ms N that the mother is putting at risk her own relationship with the girls by not acceding to a request that they spend time with C, and see their father and brother as a by-product of that. 

The mother’s position

1. The mother opposes any orders being made until the matter is adumbrated at the final hearing on 15 March 2010.  Counsel for the mother submits that there is a need for a thorough airing of all evidence in this matter and that anything less would put at risk the current stability of the girls.  Ultimately, the mother’s case is that there is no “quick fix” to a complicated and sad problem. 

2. Counsel for the mother submits that the matter has not progressed significantly since the proceedings before me in March 2009. At this time, a children’s and parents’ issues assessment by Ms N made clear the report writer’s concerns about the father’s attempted manipulation of the children and activities which were confusing and harmful for the children. Incidents included attending at the children’s school and asking that the twins accompany him when there was no order supporting his time with the children, and, on another occasion, climbing on top of a residence and refusing to come down until the police were called.  The roof incident is a matter which the grandparents have on numerous occasions defended insofar as the father’s actions are concerned.  They are yet, however, to be explored in the context of a defended hearing. 

3. Counsel for the mother emphasises that the matters which will be first dealt with in the sittings on 15 March 2010 include the contravention proceedings in which it is alleged that the father has not complied with parenting orders.

The independent children lawyer’s position

1. The independent children’s lawyer (ICL), Mr Walker, is also opposed to any orders being made for an occasion of time to be spent between the twins and the grandparents and, necessarily, the paternal side of the family prior to the defended hearing on 15 March 2010. 

The father’s participation in proceedings

1. When this matter was last before me on 22 February, Mr Dixon of senior counsel appeared on behalf of the father.  The father has not sought to be heard today.

2. I am advised by Mr Lewis, counsel for the mother, that he has agreement from Mr Dixon to inform the court that for the first time in an appreciable period there have been some negotiations between the mother and the father in relation to the children spending time with the father.  I do not understand those negotiations are at anything other than an embryonic stage, but counsel for the mother correctly points out that the father’s preparedness to participate in proceedings is, indeed, one development. 

3. Counsel for the mother informs me that proceedings concerning child support issues are pending in the Federal Magistrates Court; I recall from Mr Dixon’s submissions on the last occasion that they were also pending at that time.  Dr F has been appointed as an expert psychiatrist to provide evidence of the father’s capacity for gainful employment or income-earning ability.  I am advised that the order in those proceedings was made by consent.  It is not clear to me whether the father will be participating in the report or merely agreed to the person who could prepare any report. 

4. I am also advised by counsel for the mother that there is evidence in the Federal Magistrates Court proceedings that the father has been undergoing psychiatric therapy for some time. 

Legal principles in interim proceedings

1. The court must apply Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental responsibility) Act 2006, following the legislative pathway as set out by the Full court in Goode & Goode[1], a decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006. 

   [1] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

2. Before setting out the steps in an interim hearing, the Full Court in Goodes’ case acknowledged some comments of a previous Full court in Cowling’s case (1998) FLC 92-801, as apposite. It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. It said (at paragraph 68):-

   “…..Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”

3. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, and must be re-considered in the light of changes to the Act, the Full Court then noted (at paragraph 72) that:-

   “…..it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practical.” 

4. As to status quo, it continued:-

   “…..where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the acre arrangements for the child.” 

5. The Full Court then said (at paragraph 73):-

   “That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

A consideration of relevant s 60CC matters

1. The primary considerations are set out in s 60CC(2) and are described as follows:-

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. This is a case where s 60CC2(b) is particularly relevant.  The ICL submits that the children are in danger of psychological harm and emotional abuse from exposure to the father.  There is certainly evidence of that emanating from the father’s involvement with the children. However, I understand that the grandparents also make claims of emotional abuse against the mother, in particular, in the mother’s attempt to deprive the girls of any regular time with their paternal family and their brother. 

3. The other primary consideration is the court’s assessment of the benefit to the children of having a meaningful relationship with each of the parents pursuant to s 60CC2(a). In this case, that assessment will include the grandparents.  It is a prospective inquiry which is often assisted by consideration of the additional factors set out in s 60CC3.

4. It is in that respect that I am satisfied this matter needs a final hearing to give the parties an opportunity to adduce evidence and test the evidence to assist the court in coming to a conclusion about whether there is any benefit to the children of having a meaningful relationship with the paternal side of the family.  Moreover, it will be necessary to weigh any benefits associated with the children having an ongoing and meaningful relationship with the paternal side of their family against the detriments and the disadvantages associated with that relationship. 

5. The ICL submits that, in accordance with the view of Ms N in the children’s issue assessment conducted in 2008, one imperative for the children’s wellbeing was the need to remove the emotional pressure under which the children had been placed by the father and to remove the children from the arena of familial conflict.  It was largely on the basis of the children and parents’ issues assessment that the father’s time was reserved and any spend time with orders were suspended in March 2009.  The ICL’s submission is that nothing much has changed since March 2009.  I accept that submission. 

6. The ICL submits that there is no doubt that the children would like to attend time with their grandparents and, in particular, to see C on the occasion of her third birthday.  The issue is what weight should be attached to the views of the twins.  That is an issue which the ICL says is best determined after all of the evidence is heard and tested.  I agree.

7. The ICL expresses reservations about “going against” the clear recommendation of the family consultant in the recent family report.  The family consultant there opines that the children would benefit from spending even a one-off period with the grandparents and the paternal family on the occasion of C’s birthday.  I note that the family consultant’s report has not been tested. The family consultant has not been cross-examined. The family consultant has conducted certain observations and made an assessment.  The family consultant is not in possession of all of the evidence in the case.  The ICL, correctly, in my view, points to the need to fully explore the matter rather than placing reliance on evidence which is, at the moment, untested.

8. The ICL is not aware and has put the parties on notice today as to whether the psychiatric report, which has been prepared in the Federal Magistrates Court proceedings in relation to child support, would have any bearing on the parenting issues in this case as they pertain to the paternal grandparents.  Similarly, the ICL has put each party on notice that he does not know the nature of the psychiatric or psychological therapy which the father is apparently undertaking.  I do not know whether the ICL even knows the name of the practitioner. These are matters which pertain to the father, but the grandparents’ time with the children is, in effect, a conduit for the children to the paternal side of their family including the father. 

9. The ICL also submits that the participation of the father in the Federal Magistrates Court proceedings casts further doubt on a previous assertion by the father, communicated by the paternal grandfather to this court, that the father has a litigation phobia.  I accord with this view.  There remains no evidence of the alleged litigation phobia, although that is said to be the reason why the father cannot or will not participate in proceedings in this court. 

Conclusion

1. In all the circumstances, I am satisfied that this is a matter of some complexity. The hearing date of 15 March 2010 has been set for some considerable time.  C’s birthday does not come as a surprise.

2. For the reasons that I have mentioned, the oral application of the grandparents will be dismissed. There will be no order for the twins to spend time with the paternal grandparents or, through them, the paternal side of the family between now and the final hearing.  The crux of my decision today is that it would be premature to order one instance of time before the court has had an opportunity to fully examine and test all of the relevant evidence about the feasibility and benefit to the twins of there being orders into the future. 

3. My decision may well disappoint the twins.  As I mentioned to the parties on the last occasion, this outcome provides them with an opportunity to demonstrate how constructively they can deal with obstacles and lessen any disappointment of the twins with an outcome which, to that particular party, is an adverse outcome.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  10 March 2010