Sejdak and Kaluza

[2007] FamCA 1490

FAMILY COURT OF AUSTRALIA

SEJDAK & KALUZA [2007] FamCA 1490

FAMILY LAW – CHILDREN – Interim Orders – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Sejdak

RESPONDENT: Mr Kaluza

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3531 of 2000

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S.R. Howe

SOLICITOR FOR THE APPLICANT: Randles Cooper & Co

COUNSEL FOR THE RESPONDENT: Ms S. Maramis

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr D. Lampe

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Donald S Lampe

Orders

1. That the children of the marriage Z born … March 1993 and D born … December 1997 shall            be forthwith returned to the Wife.

1. That paragraph 2 of the Orders of Justice Dessau of 25th July 2007 be discharged.

UNTIL FURTHER ORDER

1. The Husband spend time and communicate with the said children as follows:

(a)     In person each alternate weekend from 9.00am Saturday to 5.00 p.m. Sunday commencing 24th November 2007,

(b)    By telephone or webcam each Monday and Wednesday between 5.00 and 5.30 p.m. with the Husband to initiate the contact and if by telephone to the children's mobile telephone number and that the children be permitted to contact the Husband by telephone or webcam at any reasonable time,

(c)    As may be otherwise agreed between the parties.

1. That changeovers occur outside B police station.

1. That the husband and wife forthwith enrol into and attend a parenting adolescent's course as nominated by the Independent Children's Lawyer and provide proof of enrolment and completion to the Independent Children's Lawyer.

1. That both the Husband and the Wife attend a post separation parenting course as nominated by the Independent Children's Lawyer.

1. That until further order the husband and wife be restrained from physically disciplining the said children.

1. That both parties be restrained from:

(a)     Denigrating the other to or within the hearing of the said children,

(b)    Discussing these proceedings or the evidence with or within the hearing of the said children,

(c)    Permitting or taking any action to arrange the marriage of the said child Z.

1. That the Independent Children's Lawyer have leave to issue Subpoenas to :

   (a)Department of Human Services;

   (b)Royal Children's Hospital; and

   (c)Victoria Police.

2. That the husband shall file and serve a Response within 7 days.

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. That the parties deny the need for orders 5 to 8 of these orders.

1. The husband agrees to take the children to scheduled basketball matches when they are in his care.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3531 of 2000

MS SEJDAK  

Applicant

And

MR KALUZA

Respondent

REASONS FOR JUDGMENT 

1. The parties' 14-year-old daughter, Z, and nearly 10-year-old son, D, have always lived with their mother.  When this case first started as a Children's Cases Project case in front of me in February 2007, the husband had not seen the children for around two years.  The parties' versions differ as to the reasons.

2. The parents appeared before me again on 25 July 2007.  The case was then adjourned to 21 December 2007, for the children's time with their father to build up.  It was envisaged that the children would be spending overnight time with their father from 5 pm Saturday until 5 pm Sunday, starting on 22 September this year. 

3. Since 18 October, the children have remained in the husband's care.

4. It seems to be common ground that the mother hit her four‑year‑old son from another relationship, N, on that evening.  The husband alleges that she also assaulted these children.  That is denied.  But in any event, it seems that the B police contacted the husband and asked him to collect the children.  He took them to the Royal Children's Hospital.  The father of N, as I understand it, also took N there. The Department of Human Services were notified. These children have not seen their mother since then, the father saying that they did not want to.  He also applied for intervention orders on the children’s behalves. Last week the mother made undertakings with a denial of the necessity for same.  That is, she did not admit liability.

5. Shortly after the husband retained the children in his care, the mother's solicitor contacted the father's solicitor, to negotiate a return of the children. When discussions failed, the mother sought a recovery order.  Her application came before me on Monday. The husband sought an adjournment to arrange the legal representation that he now has in place.  I ordered the urgent appointment of an Independent Children's Lawyer.  I am grateful to Victoria Legal Aid and to Mr Lampe that he is now appearing and that he has taken up the matter on such short notice.  I also requested the Department of Human Services to intervene.  The court's attempts between Monday and today and the ICL’s attempts in the course of today to contact the relevant Department of Human Services office have failed.  Unfortunately, calls have not been returned, despite the fact that it has been made clear that there is the urgent need for attention.  It is important, because there are differing versions as to the department's attitude and response. Mr Lampe believes, from the little he has been told by the department, that it is still investigating.

6. Today, the children have been brought to speak to Mr Lampe.  He has also had the opportunity to speak with Ms Y, the Family Consultant who has been involved from the start.  Following the interviews with the children and his discussions, the ICL has proposed that between now and the matter coming back before me on 21 December 2007 - and I have to emphasise that is a continuation hearing with several matters listed so that no‑one is under the illusion that I will be able to hear the case to conclusion that day - the children should return to live with their mother, but the time they spend with their father, particularly for Z, should be increased.  Mr Lampe's proposal was for her time with her father to be from Thursday after school until Monday before school and for D's time to be from early Saturday to late Sunday.

7. The mother is agreeable but not to the extent of the increase suggested by the ICL. She submitted that in Z's case, the time with her father should be from Friday 5 pm until Sunday 5 pm, but she agreed with the time proposed for D.  She does not agree that there should be telephone or web-cam contact in between, saying it is too unsettling.

8. The father argues that the children should remain with him but see their mother, what was put to me as “liberally” - for substantial periods from Friday to Sunday on alternate weekends.  As a fall-back position or as an alternative, he says that the time between the parents' households should be divided on a week-about basis. 

9. Ultimately, with an indication from me that the children should return to live with their mother until this matter can be resolved, the husband has said that he does not want any differentiation between the children's time, even with the understanding that it would mean that the children would spend only the amount of time with him as considered appropriate for the younger child’s age and maturity.

10. There is otherwise general agreement about various peripheral orders proposed by the ICL, although some disagreement as to whether various restraints are expressed to be mutual.  Any restraints will be made by me with and indication of a denial of necessity by each party, so that there will be no prejudice from those orders.

11. Briefly, the legal principles that apply are those set out in Part VII of the Family Law Act as amended in July 2006. I have to follow the legislative pathway as set out by the Full Court in Goode's case, reported in December 2006.  Before setting out the steps in an interim hearing, the Full Court in Goode's case acknowledged the comments of a previous Full Court in Cowling's case reported in 1998, that the procedure for making interim parenting orders is by necessity a significantly curtailed process compared to the ultimate hearing, because the material at this stage cannot be tested.

12. The mother admits to losing her temper with her daughter on 18 October this year, reaching to slap her mouth when she was very rude to her, but striking the child N instead, whose nose was then bleeding.  She says that Department of Human Services' workers spoke with her and said they had no concerns about her parenting, understanding that, as she had said, it was an isolated incident and she was terribly upset and contrite.  She says that for her part she is very concerned that the husband is alienating particularly their daughter from her, and as her behaviour has changed and deteriorated, her younger sons, the two boys that is, are imitating her and their behaviour has also started to decline.

13. The father for his part says the mother has an anger management problem, that the incident on 18 October 2007 was not an isolated incident, and that Z had been concerned about a particular incident in August when she said that her mother had pulled her hair. 

14. I have to consider the s 60CC matters that are relevant as to the children's best interests but I emphasise I am looking at a very, very short time frame and limited material, until more can be gathered for 21 December 2007. My consideration of these matters is necessarily limited.

15. In terms of s 60CC(2)(a), as to the benefit of the children having a meaningful relationship with both their parents, I am satisfied that it is overall very important.  The children though, through no fault of their own, did not have a meaningful relationship with their father for an extended period.  The central focus of these proceedings has been as to why that was the case, and more particularly it has been to facilitate the rebuilding of the relationship.  That was well under-way when these events unfolded. 

16. I have to look at s 60CC(2)(b) and the need to protect children from physical or psychological harm.  It is a very important consideration in this case.  The parents make cross-allegations - the father that the mother has hit the children, most particularly their daughter, and the mother that the father has exposed the children to psychological harm by undermining her, again most particularly so in the case of their daughter.

17. As to the children's views, they have spoken briefly today to the ICL.  He has taken into account their views in formulating his submissions today.  He notes that there are apparently issues currently between Z and her mother.  That is something he wants to explore.  That is one of the reasons he has suggested a particular adolescent parenting course for the mother.  He agrees, when I raised the issue, that it would be appropriate for the father as well, so that there is some consistency in parenting in that regard.  Z has said that she does want more time with her father.  She has also said that both she and her brother are missing their younger half-brother and neither are reluctant to return to live with their mother.

18. Looking at the nature of the relationships, that is very complex, and save that the children have lived with their mother for a very long time and that D has particular issues with his father, I cannot unravel the complexities of the various relationships in detail at this point.

19. I am obliged to look at the willingness and ability of each parent to facilitate the relationship between the children and the other parent.  Again that is hard to unravel at this point.  The mother has told me previously that she has wanted the relationship between the father and the children but she has wanted consistency in that relationship for the children's sake.  The father did indicate in his affidavit that when the children came to him recently, they did not want to see their mother.  Either that was not a completely accurate report, or it is what they told him at the time, or it was a genuine response by them then but they have since changed their minds.  In any event, they have said something quite different today when talking with the ICL, and both parents agree to the children having more time with the other parent.

20. In terms of the likely effect of any changes, these children have had a very significant change recently from the existing situation and I need to take that into account.  Otherwise, the various matters that are set out in section 60CC(3) have either been touched upon as much as they can be at this stage or are not pertinent.

21. Although Goode's case tells me to start by considering the presumption of equal shared parental responsibility, in this case there is no suggestion that I should deal with that presumption at this interim stage in the case.  Today, there is a very narrow ambit to the dispute and I am only dealing with what will be a holding pattern until more information is obtained.  In those circumstances, it is certainly not appropriate to start applying any presumption.

22. I am satisfied that for the five or so weeks until the return to court, the children should return to live where they have always lived, with their mother.  I take into account what the ICL has indicated, arising from his discussions with the children today.  Further, they should have the opportunity to see more of their father, which is also something that would accord with their views.

23. The fact that the father today through counsel has agreed to the children having liberal time with their mother and that he has suggested as an alternative arrangement that the children live weekabout does not in my mind support a high level of immediate concern about their safety with her.

24. I had proposed to accede to the ICL’s proposal as to the difference in time that the children spend with their father.  I understand the father's response that the children should have equal time with him.  He might well have a very sound reason for that.  I am not forming any view about that, except that again, it supports the sense that there is not a high degree of concern about the children's immediate safety, the father asking the court to order that Z have less time with him than she would have otherwise.  I propose making the time then that the children spend with their father to be from 10 am Saturday to 5 pm Sunday on each alternate week-end.

25. That leaves the telephone and web-cam issue. The mother expressed a concern that if I leave that sort of contact in place, it will undermine her further.  In light of the fact that these children are now going to be seeing less of their father than Z in particular anticipated, it is important that she has the capacity for that contact with her father in between.  I am going to leave that in place.

26. In terms of the orders about courses, non-denigration, and the other restraints in the ICL’s proposal, I am going to make those mutual.  I do agree that there is no suggestion today that the husband has been physically disciplining the children, but if I mutualise the orders, it gives the children the ultimate cover and certainly does not cause any harm.  I do note that each parent says there is no need for those sorts of ongoing orders.

27. In terms of the changeover, there is no ideal changeover point in this case.  For the next five weeks I will make it outside the B police station.  I agree with the father that it is not ideal, but I do not think the alternatives are ideal either, so I am going to select the location that will give everybody every reason to be calm while emotions are running high.  That is not to say this will be the ultimate change-over point.  I can re-consider it if requested on 21 December 2007.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  14 November 2007