Sealy and Sealy
[2018] FamCA 906
•7 November 2018
FAMILY COURT OF AUSTRALIA
| SEALY & SEALY | [2018] FamCA 906 |
| FAMILY LAW – CHILDREN – Interim Hearing – The extent to which the children spend time with the father – Where the father seeks intermittent weekend time and block holiday time with the children– Where the mother seeks the children only spend day time with the father – Where the mother alleges the father poses a risk of harm to the children due to his diminished parenting capacity – Where the eldest child has an intellectual disability – Where the family report writer recommended a differential regime of time between the eldest child and the two young children – Where the father is not found on an interim basis to have diminished parenting capacity – Where any risk the father poses does not preclude him from having overnight time with the children– Where the Independent Children's Lawyer’s proposal for time is in the children’s best interests |
| Family Law Act 1975 (Cth) |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 Harridge & Harridge [2010] FamCA 445 Goode & Goode (2006) FLC 93-286 Salah & Salah [2016] FamCAFC 100 Eaby & Speelman (2015) FLC 93-654 SS v AH [2010] FamCAFC 13 |
| APPLICANT: | Ms Sealy |
| RESPONDENT: | Mr Sealy |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Wallace |
| FILE NUMBER: | TVC | 1170 | of | 2017 |
| DATE DELIVERED: | 7 November 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson QC |
| SOLICITORS FOR THE APPLICANT: | Ryan Kruger Lawyer |
| COUNSEL FOR THE RESPONDENT: | Ms Pendergast |
| SOLICITORS FOR THE RESPONDENT: | Barry Nilsson Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Collins |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED, UNTIL FURTHER ORDER
Interim parenting orders
That the children X and Y shall spend time with the father as follows:
(a)During the school term:
(i)From 6:30 pm Friday 9 November 2018 until 1:00 pm Sunday 11 November 2018;
(ii)From 9:30 am Saturday 24 November 2018 until 1:00 pm Sunday 25 November 2018;
(iii)From 3:00 pm Friday 22 February 2019 until 1:00 pm Sunday 24 February 2019.
(b)In the event the Father is in B Town, and on the giving of 14 days’ notice by the Father to the Mother, overnight time with the Father for up to three consecutive nights, with such time to be spent from 9:00 am on Saturday, (or from 9:00 am on Friday should such day be a public holiday or non-school day), until 1:00 pm up until the third consecutive day.
That from the date of this Order the child Z shall spend time with the Father as follows:
(a)During the school term, on the same days that X and Y spend time with the Father, from 9:00 am until 1:00 pm on each day, unless otherwise agreed;
(b)In the event the Father is in B Town, and on the giving of 14 days’ notice by the Father to the Mother, on the same days as X and Y, spend time with the Father, from 9:00 am on Saturday, (or from 9:00am on Friday should such day be a public holiday or non-school day), until 1:00 pm, for up to three consecutive days, unless otherwise agreed.
That:
(a)X and Y shall spend time with the Father during the December/January school holiday period from 9:00 am 21 December 2018 until 5:00 pm 25 December 2018;
(b)Z shall spend time with the father during the December/January school holiday period, from 9:00 am to 5:00 pm on 21, 22 and 23 December 2018, and from 9:00 am on 24 December 2018 until 5:00 pm on 25 December 2018;
(c)In relation to all children, on each child’s birthdays, all children will spend time with the father:
(i)If a child’s birthday falls on a school day, from the conclusion of school until 7:00 pm;
(ii)If the child’s birthday does not fall on a school day, then for four and a half hours by agreement, and failing agreement from 9:00 am until 1:00 pm.
Trial Management Orders
Trial dates
This matter is to be listed for trial in the Family Court of Australia commencing at 9:30 am on Monday 25 February 2019 in B Town, with an estimated hearing time of 5 days, as calculated by reference to the trial plan annexed hereto and marked “A”.
The trial fee shall be paid by the parties in equal shares within one month of the date of these orders.
List of Issues
(6)The issues to be considered in the determination of the parenting proceedings are annexed hereto and marked “B”.
Rules of Evidence
Pursuant to s 69ZT(3) of the Family Law Act, the provisions of the Evidence Act shall apply to expert opinion in the parenting proceedings insofar as the facts upon which they are based need to be established by other evidence, unless they are matters within the direct knowledge of the expert.
Evidence
Leave is granted to the parties to, on or before 4:00 pm on Tuesday 29 January 2019, make file and serve one affidavit of each of the persons identified as being called by them in the trial plan.
Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit, without the leave of the court.
Expert evidence
The Independent Children's Lawyer shall forthwith notify the single experts in writing of the trial dates.
Objections to evidence
Each party make, file and serve any objections to any other party’s affidavits no later than 4:00 pm on Friday 8 February 2019.
Applications to appear by telephone or video
All contested applications under Rule 16.05 for attendance at the trial by telephone or video for witnesses shall be filed and made returnable before the court no later than 4:00 pm on Friday 8 February 2019.
Agreed bundle of documents
(a) The Independent Children's Lawyer shall confer with the parties and prepare an indexed and paginated bundle of documents relating to the parenting proceedings which are to be tendered into evidence from the documents produced on subpoena, and to file two copies of that bundle with the court, and provide one copy of that bundle to each of the parties, no later than 4:00 pm on Friday 15 February 2019;
(b)The parties shall confer with and prepare an indexed and paginated bundle of documents relating to the property proceedings which are to be tendered into evidence, and to file two copies of that bundle with the court, no later than 4:00 pm on Friday 15 February 2019;
Case Management Documents
No later than 4:00 pm on Tuesday 19 February 2019 the parties shall make file and serve a Case Outline Document containing:
(a)A list of all affidavits they rely upon;
(b)A chronology;
(c)A summary of argument.
(d)A list of any legal authorities they rely upon.
No later than 4:00 pm on Tuesday 19 February 2019, each party is to make file and serve a joint balance sheet of all assets and liabilities, noting any items and values which are not agreed, and in such event stating each parties’ contended value.
No later than 4:00 pm on Tuesday 19 February 2019 each party is to file Judge’s Papers comprising one copy of all affidavits upon which they intend to rely at trial.
Liberty to restore
All parties have liberty to restore this Trial Management Hearing to the list on 7 days’ notice for further procedural directions.
Compliance
A compliance hearing shall be held before a Registrar at 1:00 pm on Thursday 21 February 2019.
Default in compliance
In the event that a party reasonably believes that they will not be able to comply with the above timetable, they are to seek to have the Trial Management Hearing relisted for further procedural directions pursuant to the liberty to restore.
Urgent listing if trial dates in jeopardy
If any of the parties at any stage reasonably believes that the matter may not be ready to proceed to trial on the allocated dates, or may require a shorter or a longer time for the hearing than the allocated time, that party must pursuant to the liberty to restore, seek that the Trial Management Hearing be re-listed for further directions.
“A”
TVC1170/2017
SEALY
TRIAL PLAN
WITNESS MOTHER FATHER ICL
Mother 0 3-4 hours 2-3 hours Dr C 0 30 minutes 15 minutes Ms D 0 1 hour 20 minutes Mr E 0 0 ? F Pty Ltd employee 0 15 minutes 15 minutes Ms G 0 15 minutes 0 Ms H 0 ? ? Ms J 0 ? ? Father 4-5 hours 0 3-4 hours ICL Ms K 1 hour 30 minutes 2 hours 30 minutes Dr L 1 hour 30 minutes 1 hour 30 minutes Class teacher ? ? ?
Total 25.5 hours = 5 to 6 day trial but say 4 to 5 days
“B”
TVC1170/2017
SEALY
DRAFT LIST OF ISSUES AS AT 19 OCTOBER 2018
(Children & Property)
What is the nature of the relationship between each parent and the children.
What risk, if any, does each parent and their household pose to the children and what, if any, means are available to mitigate such risk.
Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
Would each parent facilitate a meaningful relationship between the children and the other parent.
What are the respective parenting capacities of each party, and what is their ability to meet the needs of the children.
What is the likely impact on the children of each parties’ proposal.
Would the parties’ communication be sufficient to support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sealy & Sealy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: TVC1170 of 2017
| Ms Sealy |
Applicant
And
| Mr Sealy |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By his Response to Initiating Application filed 19 September 2018, Mr Sealy (“the father”) seeks interim parenting orders in relation to the parties’ three children, being Z, born in 2005 and hence presently 12 years of age, X, born in 2008, and hence presently 10 years of age and Y, born in 2011, and hence presently 7 years of age (collectively “the children”). As developed during the course of the interim hearing before me, the father seeks detailed orders permitting him to spend intermittent weekend time with the children, together with blocks of school holiday time. I will discuss that proposal in greater detail later.
For her part, Ms Sealy (“the mother”) did not oppose the children spending time with the father, but proposed a regime which, as ultimately formulated, would see the children spend eight hours of day time only with the father on one day of a weekend each month, together with eight hours for five consecutive days in the first week of the forthcoming Christmas school holidays, and in the July 2019 school holidays. In substance she justified the restriction of the father’s time to day time only on the basis that he poses a risk of harm to the children, largely arising from an asserted diminished parenting capacity, particularly in light of Z’s special needs.
The Independent Children's Lawyer supported neither parties’ proposal, but suggested a regime whereby the children would spend a combination of weekend and holiday time with the father, although not to the extent contended for by the father, but nonetheless including some overnight time.
On 19 October 2018 I heard the competing applications, but reserved my decision. This is that decision and the reasons for it.
BACKGROUND FACTS
The father was born in 1968, and hence is presently 50 years of age. He is employed in a professional occupation. The mother was born in 1971, and hence is presently 47 years of age. She is a health care professional.
The parties commenced their relationship in late 1998, married in 2002, and separated in December 2016, after a relationship of some 18 years. At the time of separation they were living in B Town, where all of the children were attending B Town School.
Post-separation, the mother and the children continued to live in the former matrimonial home in B Town, but the father moved to Brisbane. The mother continues in private practice, and the father is employed with the public service.
Unfortunately, even though the parties have now been separated for nearly two years, they continue in high conflict. One of the matters which I need to determine consequent upon the adjudication of the parties’ interim parenting dispute, is whether or not the trial of this matter should proceed in late February 2019. Any such trial will relate to both parenting and property matters.
The parties are agreed that Z is a special needs child, having been diagnosed with an intellectual disability, Autistic Spectrum Disorder, and chronic anxiety. In her recent cognitive assessment of Z, Dr N, a clinical psychologist, emphasised she requires “clear, concise, calm and consistent approach to management.”
It is not in dispute that, since 28 December 2016, the father has spent a combination of day time and overnight time, including block holiday periods, with the children. Day time only was spent on 9 February, 22 April, and 21 May 2017. Weekend time was spent on 8 and 9 July, 5 and 6 August, 2 and 3 September 2017, and a fortnight of block holiday time was spent between 30 December 2017 and 13 January 2018. Since then, the father has attended some school events, but has not again spent overnight time with the children. Recently, between 11 and 14 July, 31 August and 2 September, and 3 and 5 October 2018, the father has spent day time only with the children, albeit on consecutive days. This has been by agreement between the parties.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Risk assessment in parenting matters
In Harridge & Harridge [2010] FamCA 445 Murphy J, proceeded to adopt the following list of inquiries in relation to risk assessment:[2]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
Interim parenting proceedings
In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:
81. 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.
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:
[36]It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". 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.
[37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
[39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100. ... 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.
[40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).
THE COMPETING PROPOSALS
At paragraph 36 of the mother’s affidavit filed 9 October 2018, she set out her proposals for the children to spend time with the father as follows:
(a)Sunday 28 October 2018
(b)Sunday 25 November 2018
(c)Week 1 of the December/January school holidays from Monday 3 December 2018 to Friday 7 December 2018
(d)Sunday 23 December 2018
(e)Sunday 27 January 2018 (sic)
(f)Sunday 24 February 2019
(g)Sunday 31 March 2019
(h)Sunday 28 April 2019
(i)Sunday 26 May 2019
(j)Sunday 30 June 2019
(k)The last week of the holidays Monday 8 July until Friday 12 July 2019
(l)Sunday 28 July 2019.
It will be appreciated that no period of time was specified on each of those days, however Queens Counsel for the mother indicated a degree of flexibility, and said that either they should be on times nominated by the father, or alternatively, between the hours of 9:00 am and 5:00 pm.
For his part, at paragraph 25.1 of his Amended Response to Initiating Application filed 19 September 2018, the father sought time as with the children (as varied during the course of submissions) as follows:
25.1That from the date of this Order until further order, the children [Z], [X], [Y] shall spend time with the father as follows:
25.1.1During the school term:
25.1.1.1From 6:30 pm Friday 9 November 2018 until 1:00 pm Sunday 11 November 2018;
25.1.1.2From 9:30 am Saturday 24 November 2018 until 1:00 pm Sunday 25 November 2018;
25.1.1.3From 3:00 pm Friday 22 February 2019 until 1:00 pm Sunday 24 February 2019;
25.1.1.4From 5:00 pm Friday 29 March 2019 until 1:00 pm Sunday 31 March 2019;
25.1.1.5From 5:00 pm Friday 17 May 2019 until 1:00 pm Sunday 19 May 2019;
25.1.1.6From 3:00 pm Friday 14 June 2019 until 1:00 pm Sunday 16 June 2019;
25.1.1.7From 5:00 pm Friday 17 August 2019 until 1:00 pm Sunday 19 August 2019.
25.1.2During the school holiday periods (only with the younger 2 children):
25.1.2.1From 9:00 am Saturday 13 April 2019 until 1:00 pm 20 April 2019; and
25.1.2.2From 9:00 am Saturday 8 July 2019 until 1:00 pm 13 July 2019.
25.1.3In the event the Father is in [B Town], and on the giving of 14 days’ notice by the Father to the Mother, the children shall spend overnight time with the Father for up to three consecutive nights, with such time to be spent from 9:00 am on Saturday, or from 9:00 am on Friday should such day be a public holiday or non-school day, and continuing until 1:00 pm up until the third consecutive day.
25.2That from the date of this Order until further order, the child [Z] shall spend time with the Father on the same days as [X] and [Y] as follows:
25.2.1During the school term on the same days that [X] and [Y] spend with the Father from 9:00 am until 1:00 pm on each day, unless otherwise agreed;
25.2.2During the school holiday periods:
25.2.2.1From 9:00 am until 1:00 pm on each day between Saturday 13 April 2019 and 20 April 2019; and
25.2.2.2From 9:00 am until 1:00 pm on each day between Saturday 8 July 2019 and 1:00 pm 13 July 2019.
25.2.3In the event the Father is in [B Town], and on the giving of 14 days’ notice by the Father to the Mother, [Z] shall spend time with the Father for up to three consecutive days from 9:00 am on Saturday, or from 9:00 am on Friday should such day be a public holiday or non-school day, until 1:00 pm for up to three consecutive days, unless otherwise agreed.
25.3That from the date of this Order until further order, the three children, [Z], [X] and [Y] shall spend time with the Father as follows:
25.3.1During the December/January school holiday period from 22 December 2018 until 5 January 2019;
25.3.2On Father’s Day, from the day period to Father’s Day at 9:00 am until Father’s Day at 1:00 pm;
25.3.3On the children’s birthdays:
25.3.3.1If the birthday falls on a school day from the conclusion of school until 7:00 pm on the birthday in the odd numbered years and from the conclusion of school until 7:00 pm on the day before the birthday in even numbered years;
25.3.3.2If the birthday does not fall on a school day then for four and a half hours by agreement and failing agreement from 9:00 am until 1:00 pm in odd numbered years and from 2:30 pm until 7:00 pm in even numbered years.
25.3.4On the Father’s birthday, from the conclusion of school until 7:00 pm if the birthday falls on a school day and if it does not fall on a school day then the Father shall spend time with the children from 9:00am Saturday until 1:00 pm Sunday.
The drafting of that order obscures the fact that the time under 25.1 only relates to X and Y, whereas the time under 25.2 relates exclusively to Z.
The effect of that is that there would be a differential regime between the oldest child and the younger two, in that on weekends, Z would not spend overnight time with the father, nor would she spend overnight time in the block periods in the April and July school holidays. On the other hand, the father proposed that she would spend overnight time with him in the Christmas school holidays between 22 December 2018 and 5 January 2019.
The Independent Children's Lawyer did not strongly press for any particular formulation of orders, save that she accepted that it was justifiable in these circumstances to have a differential regime between the children, said that the period of 14 overnights proposed at Christmas by the father was too long both for Z and the younger two children, and suggested that during those holidays there be three overnights for only the two younger children, and a fourth overnight in which Z would also participate.
THE ISSUES IN DISPUTE IN THE INTERIM HEARING
The interim dispute centres around the extent and nature of time which the children should spend with the father. In turn, that dispute is informed by the risk of harm to the children when in his care. Such risks are said to be posed by his asserted deficiencies in parenting capacity, which it is said, create risks of physical and emotional harm to the children.
Moreover, it is said that those deficits pose different risks to each of the children, although the differential is principally between Z and the younger two children. That in turn raises an issue of whether there should be a differential between the regimes of time between Z and the father on the one hand, and the other two children and the father on the other. Particularly it is in dispute as to whether Z is capable of spending overnight time with the father.
THE AGREED OR UNCONTESTED FACTS
Most, if not all, of the matters I have discussed in the background facts, are agreed or uncontested. Of particular relevance in this case is the absence of any overnight time being spent between the children and the father since 13 January 2018, after the conclusion of the children spending a fortnight with the father at his parents’ home in M Town, north of Brisbane.
Also relevant, and not the subject of any real controversy, is Z’s diagnosis of having an intellectual disability, and suffering from autism and anxiety.
The children have expressed wishes to the Family Report writer, Ms K, in the course of interviews conducted in January 2018. Although as I understand it the father does not dispute the expression of those wishes, he says two things in relation to them. The first is that, particularly in relation to the two younger children, their ages preclude much weight being given to their wishes, and in the case of Z, her intellectual impairment likewise requires caution to be exercised in giving her wishes any weight. The second matter is that he believes that the mother is working so as to sabotage his relationship with the children, and therefore again the expression of their wishes needs to be treated with circumspection.
RISK OF HARM TO CHILDREN IN FATHER’S CARE
It is said that the father has limited parenting capacity, which in turn creates a risk of harm to the children when in his care, both of a physical and emotional kind. The mother expressly contended via counsel that the risk of harm was directly linked to the extent of time which the children spend with the father, and therefore she suggested day time only. She conceded that any risks arising from diminished parenting capacity did not abate during the day, but said that, for instance, the children’s bedtime arrangements posed a particular opportunity for the father’s lack of parenting capacity to manifest itself, and accordingly the risk flared. The father does not accept any of the mother’s criticism of him in this respect.
The material relied upon by the mother was, to say the least, voluminous. Moreover, the mother volunteers in her affidavits minute detail of events and her concerns. The volume of material, and the level of detail, entails a risk that the more important events might be swamped by the less important, and hence lose prominence, or perhaps be wholly obscured. However, doing the best I can, the mother seems to particularly say as follows:
·She has always been the primary carer of the children, notwithstanding the pursuit of her career, and that for some years the father was not focusing upon his career;
·The father has in the past been diagnosed with obsessive compulsive traits or neuroses, and these have impacted upon his parenting;
·Z particularly requires structure and routine to meet her anxiety and disabilities;
·The mother has principally been involved in dealing with Z’s therapists and school, including additional tutoring;
·The father has shown “very limited interest in trying to spend time with the children” since separation, and the children have not appeared to miss him;
·The father’s infrequent time with the children has not enabled him to develop a routine with them;
·The time that the father has spent with the children causes disruption and significant anxiety to them;
·The father particularly appeared to have difficulty coping with the children during the fortnight that he spent with them in the last Christmas holidays, in that the children reported that Z was wrestled into a car, that X had been smacked and threatened with a belting, and other concerns;
·The father is incapable of managing all three children on his own, as is evidenced by the fact that he holidayed with them at his parents’ home during the fortnight he spent with the children in the last Christmas holidays;
·Even though the Family Report recommends differential regimes for the children, the mother is troubled in relation to that, and particularly the impact it will have on Z;
·After the children returned from spending time with the father, it “takes a significant number of days for [the mother] to re-establish a routine and structure with the children;”
The mother also asserts events of family violence involving the father, which she inferentially says poses a risk of harm to the children, presumably by the prospect of some repetition of family violence by the father. Precisely how that might arise was not explained.
For his part, the father denies virtually all of those assertions. Particularly he says that he is well equipped to deal with Z’s special needs, and that he was for some years the primary carer of the children. He also alleges reciprocal family violence perpetrated upon him by the mother (which she denies).
Significantly he says that there were no difficulties of any great magnitude when he spent time with the children over Christmas, and specifically denies being overly physically rough with any of the children during that time.
Ms K, the Family Report writer, interviewed all three children. Z reported that during her holiday time with the father “he got really angry at us and told me to get off the phone. He told us to go to the beach.” She went on to say that she did not really miss her father, and didn’t want to see him. Tests administered to Z by the Family Report writer identified that Z perceived negative outgoing and incoming feelings about her father, but not her mother.
In X’s interview she said “I don’t miss dad. Sometimes he shouts at us. When [Z] didn’t want to go to the beach dad held her and put her in the car. Granny didn’t do anything when dad was shouting at us and I didn’t like that. Dad always shouts and he hit me too.”
She gave an example of this when the father forced her to play Uno with him by grabbing her. As with Z, X identified negative feelings associated with her father, but positive feelings associated (principally) with her mother.
In Y’s interview he reported that “if you don’t want to go [to the beach] he’ll just tackle you into the car and he does it with Z. I don’t like seeing it. And dad says mean stuff about mum. He’s a bit scary at times.”
Like his sisters, Y identified negative outgoing and incoming feelings relating to the father, but more positive feelings in relation to his mother.
In reviewing the material gathered for the purposes of the report, Ms K said as follows:
Whilst it is apparent that the three children have a loving and close relationship with their mother (both from observation and the children’s assessment) it is less apparent with their father. All three children commented that there were difficulties with the time spent with the father and concerns were also raised by the mother and grandmother. In particular this is of concern with [Z] and it may be that [the father] finds it difficult to provide [Z] with “clear, concise, calm and consistent approach to management” as recommended by Dr N in her recent cognitive assessment of [Z].
To the extent that the father asserted otherwise, Ms K was concerned that, in her testing of him, the results indicated that he “was not forthcoming or honest in his responses and possibly within the clinical interview where he may have responded in a guarded and cautious manner while presenting as polite and respectful.”
Later she particularly noted that Z, more than the other two children, identified negative feelings in relation to her father, which was of concern to her, given Z’s particular issues.
The father has been assessed by a psychiatrist, Dr L. Whilst not making any formal diagnosis of psychiatric illness, he opined that “the father does exhibit some obsessive – compulsive personality traits although the degree to which this is evident is obviously in dispute.” He thought that if the mother’s accounts of the father’s behaviour were true, it could comprise a personality disorder, perhaps with some narcissistic traits. He went on to note that the burden of obsessive – compulsive symptoms “can make decision-making quite challenging,” but the capacity to make decisions would not be “fully deprived.”
Given the disagreement between the parties as to many of the relevant matters pertaining to the father’s parenting capacity, it is not possible to reach any final conclusion on the mother’s allegations. However the children’s concerns articulated to Ms K do suggest that their experience of the father, at least over the fortnight when they last spent overnight time with him, had some concerning aspects to them, although it does not appear as though, even taking their stories at the highest, that there was ever any real risk of physical harm to them. Rather it appears as though the father’s manhandling of Z caused some apprehension amongst them, with some attendant risk of emotional harm.
However even taking that at its highest, does not presently persuade me that the father demonstrates particularly diminished parenting capacity, or that any risk that he poses to the children should preclude him from spending overnight time with any of them. Of course, at trial, as the evidence unfolds and is tested under cross-examination, a different picture may be revealed, warranting different conclusions.
SECTION 60CC CONSIDERATIONS
The mother did not suggest that there would not be a benefit to all children of having meaningful relationship with both of their parents. Rather it is said that the level of benefit to the children may differ between the parents. That is not something I can determine on an interim basis.
I have already discussed the views of the children.
The mother asserts that the father has been reluctant to involve himself in decision making, and spending time or communicating with the children, since separation. She likewise says that he was the less engaged parent prior to separation. The father denies all of that, and it is not possible to determine that on an interim application. That said, the father’s time with the children has been very limited this year.
It is reasonable to conjecture, from the Family Report, that the children experience feelings of greater closeness with the mother than the father, and hence prolonged absence from her may adversely affect them.
The father resides in South East Queensland and the mother in North Queensland. There is therefore practical difficulty and expense in the children regularly spending time with the father, and some difficulty in relation to communication, although not of any great magnitude.
It is conceded that there has been family violence involving the father and mother. Whilst that necessarily means there is a risk of one, or both, of the parties further perpetrating family violence, it is not possible to presently predict the likelihood of that, or the likelihood that the children may be exposed if it were to occur.
A family violence order has applied, which only confirms that there has been historical family violence between these parties.
CHILDREN’S TIME WITH FATHER
Overview
There are essentially three questions which inform the time the children should spend with the father. The first is whether there should be a differential regime between Z, and the other two children. The second is whether any of the children should spend overnight time with the father. The third is, depending upon the answers to the first two questions, the extent and regularity of time which the children should spend with the father.
Differential regime
Unusually, in her Family Report Ms K recommended that there be a differential regime of time between the younger two children and Z. Particularly she thought that Z should only have short day visits with the father in B Town, whereas the younger children could have short visits up to seven days with him during school holidays, or weekend visits if he were in B Town.
Because that was perceived as an unusual recommendation, a supplementary report was obtained by the Independent Children's Lawyer as to why such an outcome was justifiable. In an email dated 11 October 2018, Ms K responded by emphasising that “while the other children appear to be able to deal with their father’s temperament, Z finds it challenging, frightening at time and causes her to be more anxious.”
After reciting the children’s comments to her, she then concluded:
Recently the literature has indicated that at times it is acceptable to have different arrangements for different siblings… and it appears that it would be of benefit for the child [Z] .. to be solely resident with her mother .. and to have short day visits only with her father .. [X] and [Y Sealy] while both indicating they prefer to be with their mother appear to be more able to make the transition from their mother to their father for short periods of time.
Ms K emphasised that the concerns which this recommendation addressed in relation to Z were her intellectual disability, Autism Spectrum Disorder and chronic anxiety, which gave rise to a need for a “clear, concise, calm and consistent approach to [her] management.”
To date it appears as though there has been no differential regime between these children, but I accept that there will be circumstances where it is justifiable. The concern which such a regime generates is that Z may feel that she is in some way being marginalised or punished for her response to the father, but that seems unlikely given that her experience of her father is one which she does not find enjoyable. True it is that she will likely perceive that she is being treated differently from her siblings, but that of itself is not particularly troubling.
In this case, for the reasons identified by Ms K, I am satisfied that it is justifiable to have a differential regime between the children.
Should the children spend overnights with the father
The mother’s argument is that the father’ risk to the children is proportionate to time. However, with respect, her Queens Counsel appeared to find it difficult to justify why nights, rather than days, posed additional risk. Ultimately he suggested that perhaps it may have something to do with the bedtime routine, and noted the possibility that difficulties with the children going to bed might see the father’s personality issues come the fore in ways which they would not do during the day.
However, that is not what the children have reported in the past. So far as I can tell, in reporting their concerns about the father, it has been his conduct during the day that has been troubling for them, not of a night.
Indeed, logically the father is likely to have less to do with the children whilst they are sleeping than when they are awake.
I am not persuaded that there is any reason as to why the children should not be able to overnight with the father.
That said, the concerns of the Family Report Writer in relation to Z put her in a somewhat different category. Ms K’s recommendation is that Z only spend short periods of daytime only with the father. The mother seeks such an order, save that the eight hours she proposes could not really be described as short. The Independent Children's Lawyer suggests that one overnight during the school holidays may be appropriate. The father wants 14 overnights, in the Christmas school holidays, but not at any other period.
On an interim basis, there is no magic solution to this problem. However I am satisfied that, notwithstanding the view of the Family Report writer, limited overnight time is not altogether contraindicated in relation to the child Z. However plainly any such time should be minimal, given Ms K’s concerns.
Length and frequency of time spent with father
I have noted the parents’ proposals in this regard, and the Independent Children's Lawyer’s position.
In my view the mother’s proposal is flawed in two respects. Firstly, it does not sufficiently accommodate the differing considerations in relation to Z on the one hand, and the younger two children, on the other. By seeking to determine that the length of time and frequency that the younger two children should spend with the father, be that which Z can cope with, the mother’s proposal prefers Z’s interests over those of her siblings. Given the Family Report writer’s recommendations, that is not warranted.
Secondly, the time proposed by the mother is too parsimonious in any event. The amount and frequency does not, in my view, even on an interim basis, allow the children to sufficiently experience a meaningful relationship with the father, or to receive the benefits which they can obtain from that relationship.
On the other hand, the father’s proposal is too optimistic. He has not spent any overnight time with the children for almost 12 months now, and yet he proposes to shortly spend a further fortnight with them. The children plainly did report positive memories or experiences from their last holiday with the father, and there is no reason to think that would likely be substantially any different if they were to now spend another fortnight with him. The father should accommodate the needs and capacities of the children, rather than his own.
In my view, the Independent Children's Lawyer’s position is a more appropriate assessment of where the best interests of these children lie. Particularly it accommodates the differential between Z and the younger two children, recognises that there is no bar to the father spending overnight time with the children, including Z (notwithstanding the recommendations of the Family Consultant) but has such time gauged at a very moderate level, hence in my view, likely optimising its chances of success, or at least the children beginning to have positive experiences from their time with the father.
I am therefore satisfied that, in broad terms, the proposal of the Independent Children's Lawyer is far closer to the children’s best interests than either of the parties’ proposals.
The father’s proposal does not see the child Z spend overnight time with him, other than in the Christmas holiday block period he proposes. Whilst I am not presently persuaded that she could not spend any overnight time with him on the weekends or on other school holiday periods, given that the father does not seek that time, I do not propose to order it. Rather there will continue to be a differential between Z and the other children on weekends.
The father’s proposal specifically sought that the children spend all of this Christmas with him, and no time around then with the mother. His counsel justified this on the basis that the father has not “had” the children for the last two Christmases. To my mind, this seems to be more about the father’s needs than the children’s. I did not form the impression that the father has thought through the effects on the children, who are reported to have a closer relationship with the mother than him, of being deprived of spending any time whatsoever with her at Christmas. On the other hand, I am satisfied that the father should spend some time with the children at Christmas.
The difficulty with this from the father’s perspective is that, assuming that the block of time that I order is only as suggested by the Independent Children's Lawyer, and that Z only spend one night with him, it will preclude that time being spent anywhere other than in B Town. When I raised this with the father’s counsel during the course of the hearing, her position effectively was that the father would take that, although it is not his first preference.
Ultimately I am persuaded that the appropriate regime from now until trial, will see the father spend time with the children on the weekends as he proposes until Christmas, when the father should spend a total of four nights with the younger children, and one night with Z. Thereafter, weekend time should be as the father proposes.
On that scenario, Queens Counsel for the mother proposed that the father spend block time with the children leading up to Christmas day, and that they changeover to her care on Christmas Day at 5:00 pm. I am satisfied that, in broad terms, that is the preferable split. There will therefore be an order that the father spend four nights with the younger two children, commencing 9:00 am Friday 21 December 2018, that Z spend day time with him on 21, 22 and 23 December 2018, but spend overnight with him on 24 December 2018. The children will then go into the mother’s care at 5:00 pm on 25 December 2018. There then will be a further weekend as proposed by the father. Further orders beyond February 2019 can be considered at the trial, which, as shall shortly be seen, should commence in February.
OTHER MATTERS
At the hearing of the interim applications, there was discussion as to whether or not the matter should proceed to trial on dates which had been reserved for it in February 2019. The only potential problem is that Ms K suggested that the interim regime which she proposed be trialled for six months, and the children then interviewed again to ascertain how they were coping with those visits. The period for which these orders will prevail for is for a little under four months. It is quite conceivable that, even if a six month period were to elapse, interim orders could only be again made, depending upon whether the interim regime proved successful or otherwise. I am not persuaded that the fact that a period of something less than four months would elapse between now and trial, is a reason not to list the matter for determination then.
To cover that eventuality, trial directions were formulated, but not pronounced, at the hearing of the interim applications. Because it is my view that the matter should proceed to trial in February 2019, I will also pronounce the formulated orders readying the matter for trial then.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 November 2018.
Associate:
Date: 7 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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Jurisdiction
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