SHARPE & PARKER

[2015] FCCA 3163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARPE & PARKER [2015] FCCA 3163

Catchwords:
FAMILY LAW – Children – interim orders.

Legislation:  

Family Law Act 1975, s.60CC

Applicant: MR SHARPE

Respondent: MS PARKER

File Number: DGC 1159 of 2014

Judgment of: Judge Roberts

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Melbourne

Delivered on: 13 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Hoult

Solicitors for the Applicant: Meier Denison Guymer Pty Ltd

The Respondent appeared unrepresented

ORDERS

1. That MS L is the appointed Litigation Guardian for the Respondent MS PARKER (“the mother”) in these proceedings.

2. That the Applicant MR SHARPE (“the father”) must pay to the Litigation Guardian by way of part property settlement on behalf of the mother the sum of twenty-nine thousand dollars ($29,000) within 48 hours of receiving a request for that in writing.

3. That until further order X, born (omitted) 2001 and Y, born (omitted) 2003 (“the children”) are to live with the father.

4. That until further order the children are to spend time with the mother each alternate weekend from after school on Friday until the start of school on Monday, commencing on Friday 20 November 2015.

5. That until further order the mother may communicate with the children on Mondays, Wednesdays and Thursdays by telephone to the father’s landline telephone at or about 7:00PM.

6. That the father or his lawyers have leave to provide a copy of these orders to the Principals of the children’s schools.

7. That Family Consultant Mr B is requested to explain the orders made today to the children.

8. That the matter is otherwise adjourned to Monday, 14 December 2015 at 10:00AM in Melbourne (noting that the matter will not proceed as a final hearing at that time, but a day will be allocated).

AND THE COURT DIRECTS:

1. That there be transcripts provided for all 5 days of the hearing so far, with copies to be provided to the father, to the Litigation Guardian and to any Independent Children’s Lawyer who is appointed pursuant to the request made on 12 November 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

DGC 1159 of 2014

MR SHARPE

Applicant

And

MS PARKER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I will refer to the parties as “the mother” and “the father”.

2. I find myself in the very unusual situation of having to make interim orders on Day 5 of a final hearing when that hearing is going to be adjourned.  This has come about essentially because the mother has not been able to run her case properly.

3. The overwhelming evidence that I have, not only from the evidence from a psychiatrist, Dr E, but also from the behaviour of the mother, is that the mother is not in control and that is the reason that the mother’s mother is to be appointed as the litigation guardian.

4. I think it is unfortunate that the mother did not continue with her legal representation.  I do not intend to get involved in the dispute between the parties about whether or not she could afford that legal representation, but it does seem to be common ground that there is $29,000 available to be advanced which now could be used, or at least a large proportion of it could be used to pay for legal representation.  The mother has said in material that she provided from the bar table that she has already spent an enormous sum, and the figure $98,000 keeps coming to my mind that she has already spent.  I think it is unfortunate that anybody gets into a situation where they essentially deplete the family resources and end up paying lawyers, but there is no way around that.

5. This matter has to be adjourned and I am asked to make interim orders.  The interim orders that I am asked to make by the father through his counsel are essentially that the children live with him and spend time with the mother on a supervised basis at weekends on an interim basis.  I will come back to that in a moment.

6. The basis on which that application is made is essentially that the mother not only is not coping with running her own legal case; she is also inappropriately involving the children, and Y in particular, in the case itself and in the legal proceedings.

7. I am in the somewhat peculiar situation of having a Section 11F report on Day 5 of a final hearing.  The child Y stated quite plainly that her mother was not influencing her and not telling her what she should do and not involving her in the proceedings, yet her older brother had said only a very short time beforehand that that was exactly what the mother was doing.  He said the father does not do so, but the mother does.  However, he ignores it. 

8. He is two years older than Y and clearly of a different personality.

9. What is interesting is the mother is not denying that she has done it.  She was actually trying to present evidence that she had done it.  Now, I have not seen that evidence because I had not got to that point where I would see it.  However, I find it very concerning from what I hear that a parent would involve a 12 year old child in the adults’ fight, to the point of recording more than one interview with the child.

10. It is obvious that must be putting enormous pressure, and absolutely unnecessary pressure on a 12 year old child.  The obvious thing a 12 year old child is going to do is want to please that particular parent, so she will say the things that that parent wants to hear.  I have been in this job for 15 years and I was a Family Lawyer for a very long time prior to that, and over and over again I have heard of situations where a child is saying one thing to one parent and something to the other parent because they want to please both their parents.  They love their parents.

11. I heard evidence from the father about his current relationship with his daughter and that he is still able to talk to her on the phone and they send text messages and the like, so it is not as though the relationship is destroyed.  My concern is it will be destroyed if the current situation continues. 

12. I do not have that concern for X.  From the report of Mr B, he is coping better with it, in that he has shrugged it off and he ignores it.  He knows his mother raves on about Dad and says things about Dad that are not very nice but he can cope with that.  He gets annoyed by it and would prefer that she does not do it, but he is coping with it.

13. In my view, Y is not coping with it.  She is giving way to that pressure that the mother is putting on her.  The mother may not be doing it deliberately.  I understand that a parent does not want to spend less time with a child.  That is perfectly natural in the case of a child you love, but I cannot be a Solomon and chop the child in half to give half to each, so when parents separate the usual situation is that there is some sharing of time.

14. Now, these two parents had an arrangement that was set in the concrete of interim orders of week and week-about sharing.  It is clear to me that the mother is not complying with the orders in relation to Y.  It is not good enough to just say: “Y does not want to go and I am not going to make her go”.  There is a duty on parents to go a bit further.  It is not a case of “Well, if you don’t want to go, that’s fine”.  There is a duty on parents to require compliance with an order and that is obviously not happening.

15. However, what concerns me more than that is that Y is being involved in the proceedings.  On an almost daily basis during this week, the mother has tried to hand me up something that Y has written in her diary or some other thing that she has written.  It is entirely inappropriate and she did not say how she got Y’s diary but I think I can read enough into it that, because the mother has “interviewed” Y, she has had a chat to Y about her diary, like “Shall I take your diary along to Court?”.  It is fairly easy to conclude that Y is being improperly influenced in relation to what she is saying, and saying to make her mother feel happy.

16. The evidence that I had from Dr E and from Ms S persuades me that there has been almost a reversal of roles.  Y is the one who is looking after the mother’s emotional welfare, not the other way around, and Y must have an enormous burden on her shoulder.  She is worried about her mother’s emotional state and that concerns me greatly.  It has been abundantly clear throughout the hearing, not only from what Dr E and Ms S said, but also from the mother’s behaviour, that she does not put any check on her impulses to say things.  If she cannot restrain herself in a formal setting like a Court, then I cannot have any confidence that she will restrain herself when it comes to saying inappropriate things in front of Y.

17. Section 60CC refers to the things that I need to take into account to determine what is in a child’s best interest. Whether it is interim or final, I must do what I think is in the child’s best interests.

18. The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. [1]

    [1] Subsection 60CC(2)

19. There does not seem to be any dispute between the parties about the children having a meaningful relationship with both parents.  There is, in my view, a concern that Y, in particular, is being exposed to psychological harm, but not from abuse or physical neglect.  Everybody seems to agree that these children’s physical needs are being met. 

20. However, it seems to me that there is neglect of her emotional needs.  That is also referred to in the additional considerations where the Court is required to look at the capacity of each parent to provide for the children’s needs.[2]  It includes their physical needs, but as I have said, I have no concerns about these children’s physical needs.  They are going to school.  They are being fed.  They are being clothed.  They are being housed. However, I do have significant concerns about their emotional needs, and Y’s in particular.

    [2] 60CC(3)(f)

21. Allied to that is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.[3]  It seems to me that it is clear from the evidence of Mr B, when you take into account the evidence of Dr E and the evidence of Ms S, was that parents have a responsibility not to involve their children in their adult fight. 

    [3] 60CC(3)(i)

22. The mother has not been able to control her impulses in relation to that, and that really worries me.  It is entirely inappropriate:

    ·to let children see court documents;

    ·to have children age 12 or less complete a Statutory Declaration in the presence of a police officer about an incident;

    ·to film or audio record interviews with your own children in a desire to promote your Family Law case, either in this Court or the Family Court. 

23. That reflects very poorly on the mother’s current attitude to her responsibilities to the child Y in particular. 

24. According to Mr B, she seems to be doing or saying similar things to X, but it washes off him.  He has a different personality and is not affected by it quite in the same way.  Mr B also talked about boy and girl relationships with male and female parents, but we are also talking about their ages.  Y, who is not yet 13 and in my view, she has quite clearly been adversely affected by the mother’s inability to control herself, and her inability to see that it is inappropriate to involve a 12 year old in the dispute to the extent that she has.  That concerns me. 

25. It isn’t enough to say, “Oh well, the mother’s better now” (as suggested by the mother’s own mother).  There has not been any indication of that as far as I am concerned.  She was in slightly better check today than she was two days ago, but that does not mean that she will not be out of control again tomorrow. 

26. Section 60CC refers to “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”[4] and when I weigh these things up, I need to take into account that Y’s views are being very heavily influenced by the mother’s views and desires, and the mother’s inability to keep those views in check and not involve her daughter in the fight, so to speak. 

    [4] 60CC(3)(a)

27. Consequently, I can only come to the view that there ought to be an interim order that these two children are to live predominantly with their father with effect from today.

28. I would expect the father to continue sending the children to the same schools, most certainly until the end of this year.  He has been able to do that on a weekly basis on and off.  He now has to do it on a two-weekly basis full time. 

29. It is clear that the children need to maintain their relationships with their mother.  I have some reservations about it being supervised.  My reservations are that it brings about an unnatural relationship with a parent.  We are talking about a 12 year old and a 14 year old.  The 14 year old seems to be able to cope with it anyway.  The 12 year old is certainly under pressure. 

30. I am of the view that the time that the children spend with their mother should be unsupervised because a 12 year old and a 14 year old are going to say: “Why do I always have to have my aunt, or my uncle, or my grandmother, or whatever, in place all the time?” and I think that would interfere with the children’s relationship with their mother. 

31. The orders will be interim but that is not to say that I would not entertain an application for it come back again if the mother continues with her behaviour of involving the children.  It will become plain whether she is or she is not, because they are going to be living predominantly in their father’s household. 

32. I do not have a particular view about whether the mother’s time should be all day Saturday or every second weekend.  I will stand the matter down for a very short time for some discussions about that.  

The matter was stood down for discussions and Orders as set out above were subsequently made.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Roberts

Associate: 

Date:  27 November 2015