Shelford& Tahoke

[2007] FamCA 824

FAMILY COURT OF AUSTRALIA

SHELFORD & TAHOKE [2007] FamCA 824

FAMILY LAW - CHILDREN - With whom a child spends time - Separation of siblings - Interim orders

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286, (2007) 36 Fam LR 422

APPLICANT: MR SHELFORD

RESPONDENT: MS TAHOKE

FILE NUMBER: MLC 7424 of 2007

DATE DELIVERED: 4 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J.S. Elleray

SOLICITOR FOR THE APPLICANT: Russell Kennedy

COUNSEL FOR THE RESPONDENT: Mr S.A.M. Lethlean

SOLICITOR FOR THE RESPONDENT: Hutchinson Legal

Orders

1. That until further order the child L born in September 1993 live with the husband.

2. That until further order the child J born in March 1998 live with the wife.

3. That the child J spend time and communicate with the husband as follows:

   (a)on each alternate weekend from 5.30pm Friday until 4.00pm Sunday commencing on Friday 6 July 2007; and

   (b)by telephone on each Tuesday and Thursday between 6.00pm and 6.30pm with the husband making the call to the wife’s mobile telephone and the wife facilitating the child speaking privately to the husband, the first of such calls to be made on Thursday 5 July 2007 at 6.00pm.

4. That the place at which the child J is to be handed to the husband will be the McDonald’s Store at a Melbourne outer eastern suburb.

5. That pursuant to Section 68L(2) the Family Law Act 1975 the child L born in September 1993 and J born in March 1998 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. That the parties do all things necessary for the purposes of the preparation of a Family Report with the expert preparing the report to be Ms A, psychologist and that the parties each be responsible for one half of the cost of the attendances upon Ms A and the preparation of any report.

9. That the parties each do all things required to ensure that the children L and J attend at and upon the direction of Ms A in respect of any appointments that she makes.

10. That Ms A be at liberty to inspect any material on the Court file, including any material produced under subpoena by either of the parties.

11. That each of the parties attend a family dispute resolution counsellor at a time and place to be agreed between them.

12. That the further hearing of the husband’s application filed 29 June 2007 and the wife’s application for which leave is being granted this day to be filed be adjourned to the Senior Registrar’s List of cases on 31 August 2007 at 9.45am.

13. That notwithstanding leave has been given to the wife to file the material to which I have just referred the fees and/or exemption application be paid and/or made by the wife no later than Wednesday 11 July 2007.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

2. That each party be restrained from discussing anything about these proceedings with either of the children or with any other person in the presence and hearing of the children.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7424 of 2007

MR SHELFORD

Applicant

And

MS TAHOKE

Respondent

REASONS FOR JUDGMENT

1. In the Duty List today I have a case which revolves around a very discrete issue and the material is very limited upon which to make a decision.  I have relied very heavily on what I have been told and in many ways I am making a subjective judgment based upon things I have heard and read.  I propose to send this case back to the Senior Registrar's list and put in place not only some procedural orders which will hopefully enable the parties to slow down their own personal antipathy but also think about the two children of their relationship.

2. Because it will be some weeks before the Court can have an opportunity to have the benefit of an Independent Children's Lawyer and a specialist psychologist, I have to cover the situation for these two children during that period of time.

3. Notwithstanding my comment about the fact that I am making a very subjective judgment, the path that is set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”) still has to be followed. I propose to do that. In this case the parties commenced a relationship in 1987 were married in 1997 and separated in 2000; hence I shall refer to them as husband and wife. They have two children whose names are L, who was born in September 1993 and who is therefore not far off 14 years of age, and J, who was born in March 1998 and who has therefore just some months ago turned nine.

4. The separation occurred in the year 2000.  It seems common ground that there has been a relationship between father and children for the entire period of time and the mother has otherwise had the primary responsibility of the care of those children.  An incident occurred very recently - and I will not go into any detail in relation to this incident, for reasons that I will explain, as a result of which the older child effectively left home and since then has been residing with her father.  The younger child has not left home. 

5. What has now transpired is that the parties are at loggerheads as to what time should be spent by the husband with the younger child, J, until the return date.  The wife, probably sensibly, does not bring an application in respect of L today, because on the material, I would probably not be able to make any determination in her favour.  I say that without any indication of having found anything in relation to the incident or the justification for L's views.  I am just left in a position where I do not really know, other than what I have been told by each party, what are L's views.  In any event, the views of the child are simply one of the aspects that I have to make a decision about. 

6. As with all parenting cases that have come before the Court subsequent to 1 July 2006, the Act requires that I apply a presumption that the parents should have equal shared parental responsibility and that in the fullness of time if I make such an order then I am obliged to contemplate making an order for equal time between the parents, except in circumstances of violence, which is clearly set out and defined in s 4 of the Act; or more importantly, if I were satisfied that it would not be in the best interests of the child to make such an order.

7. The Act also provides that in an interim hearing if I am unable to make any findings about those sorts of issues then I am not obliged to apply the presumption. Having regard to the circumstances here and the very limited nature of what I am asked to determine, it would not only be inappropriate for me to try and make some findings that would enable me to deal with the presumption but on any view it would not be in the best interests of these children or either of them for me to make such an order at this stage. As such, the presumption does not apply. Accordingly, I have to decide the case based upon the material I have and ultimately determine the outcome in my judgment as to what is in the best interests of both of these children, and in particular I am obliged to look at s 60CC of the Act.

8. As I have indicated, there is no dispute, at least at this stage, that L remain living with the husband. The wife makes it very clear in her material that she wants L back. The husband, as part of his process of filing material, filed a Form 4 Notice of Risk of Child Abuse and that immediately triggered the intervention, at least in the parties' lives, of the Department of Human Services. Section 67Z of the Act is a mandatory provision; if an allegation is made of violence involved a child, then the party has to file that notice and the Department of Human Services has to consider it as a formal notification.

9. What the Department of Human Services will do in this case remains to be seen.  I am also told that the police may very well be involved but, having regard to the fact that the very basis upon which the dispute between the parties seems to have started is in dispute, I am not particularly interested in making any comment or findings about that issue, and nor should I. 

10. The Full Court in Goode and Goode[1] has made it clear that I must make the decision as best I can on the material provided and avoid making findings of fact about matters which are in dispute.  That is particularly important in these sorts of cases where I am effectively looking at the proposals of each of the parties for a very short period of time.  It is rather unfortunate in this case that I cannot get the assistance that the Court probably needs before the end of August, because, in a case such as this, nearly eight weeks is an awful long time in the lives of these children. 

    [1] (2006) FLC 93-286, (2007) 36 Fam LR 422

11. Not only is there a dispute between the parents about who should have what time with what child but I am very mindful of the fact that L and J are sisters and, regardless of what the parties say in their affidavits about the respective relationships between the children, they are siblings and need to have time with one another.  I would be surprised if anybody would argue to the contrary.

12. The wife today has come to Court with a Form 1A and 2A response to the application of the husband and supports that with an affidavit.  Because of the fact that Mr Lethlean of counsel did not have the benefit of the appropriate financial requirements of the Court to file the material, counter staff, correctly, refused to accept it but I propose to allow that bureaucratic problem to be overcome by having the material admitted into evidence and I shall make orders that the appropriate documents be properly filed and the appropriate filing fees paid later.

13. Needless to say, having read the Form 2A of the wife, it is clear that she wants the immediate return of L to her home but is not in a position, and probably sensibly so, to make that application today.  The dilemma, however, is that in paragraph 3 of her application she wanted orders made that the husband spend time with both of the children on each alternate weekend from 3.30 pm on Friday until 6 pm on Sunday, which, ironically, just reflects what seems to have been happening in these children's lives for the last six or seven years.

14. One may wonder then why the problem has got to the stage where I am obliged to make a subjective judgment about whether these children in fact spend that time with their father, or more particularly whether J does.  I am told from the Bar table that, for reasons best known to the mother, presumably something to do with school holidays, J attended Court today and, as a result of what occurred, she spent some time with her father; and notwithstanding each party may have a view about how that occurred and why it occurred, I am told by Mr Lethlean, on his instructions, that the child has been left in a state of confusion and is unsure about what to do.  The husband, for his part, says there was no uncertainty in his observations of his daughter and that any confusion is in the mind of the wife.

15. As everyone knows, I am obliged to make the decision on the basis of what is in the best interests of the child, not what is in the best interests of the parents. Adults are supposed to be able to ride the bumps of life and if it means that they cannot make decisions in the best interests of their child then someone like me has to make a decision for them. Parliament has given me some guidance in respect of how to make that decision by mandatorily requiring that before I make a decision I am obliged to look at the matters set out in sub-ss (2) and (3) of s 60CC.

16. Sub-section (2) under the heading of Primary Considerations says that I am obliged to consider the benefit to the child of having a meaningful relationship with both of the child's parents.  I would conclude from that that if J is going to continue to live with her mother, there will be an ongoing and meaningful relationship with her mother.  The dilemma obviously is in relation to the husband.  It would be hard for me to decide - on the material that I have been told about, let alone having read, that there is a basis to say, after six or seven years of a relationship of alternate weekends - that there is anything other than a meaningful relationship between the husband and J, at least at this stage. 

17. I do not see any basis upon which I could reject that relationship continuing.  But it is important to understand that parliament says that I have to take into account the benefit that the child will have of continuing that relationship.  If I excluded, as the mother would have it, the child from seeing the husband on a face‑to‑face basis until some counselling occurs, it may very well be that nothing happens until the end of August.  I think that that would be contrary to the will of parliament in sub-s (2). 

18. The second issue that I am required to consider is the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.  I am not for a minute suggesting that the mother would do anything untoward during the period of time she is in charge of J, but it may very well be that by excluding the husband from J's life in circumstances where J must be aware of what is going on between the parents, there may be some consequence psychological harm.  So it seems to me that I am obliged to at least contemplate avoiding that by allowing the husband to continue his relationship with the child as it has been for the last six or seven years.

19. In sub-s (3) I am obliged to take into account a number of other considerations.  Firstly I am obliged to consider the views of the child.  I am not in a position on the material to decide what all of that means in this case, having regard to not only the state of the evidence but also the fact that J is only nine years of age.  I would not be prepared to accept anything she says at this stage without some advice from an expert such as the psychologist proposed by the parties to ensure that those views are properly and maturely based so that I could give them appropriate weight. 

20. I am obliged to take into account the nature of the relationship of the child with each of the parents, as well as other persons.  Now, in this case it is quite clear that the status quo would suggest that there has been no problems between the parties and the child up to date, but I am very cognisant of the fact that J has a sister, L, who she may not be able to see if I did not force the parties' hands and make orders today.  I am as concerned about the children seeing one another as I am about the husband having time with J. 

21. I am also obliged to take into account the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between, in this case, J and the husband.  I am concerned - and I do not really understand what the problem is that has arisen today, particularly having regard to the fact, as I mentioned, that as late as hours ago the wife was apparently prepared on an interim basis to agree to an alternate weekend arrangement.

22. I am then obliged to look at the likely effect of any changes in the child's circumstances, including the likely effect upon the child of any separation from either his or her parents or any other child with whom he or she has been living.  If ever there was a particular provision in the legislation that applied, it is this one.  I do not know what the consequences for J are in being separated from her father, or, for that matter, from her sister.  But if I was to accept, even anecdotally, from the Bar table, that the child was happy to see and spend time with her father this morning, it must follow that being absent from her father and sister for some weeks is not in her best interests. 

23. There are other considerations such as the practical difficulties and expense of a child, the level of her maturity, sex and lifestyle and background and the Aboriginality and Torres Strait Islander questions; all of which in this case are not relevant.  I am obliged to look at the capacity of each of the parents.  In this case I have read briefly the affidavit of the mother in which she asserts a drug problem of the father, and yet I do not have any formal evidence or documents suggesting that the child is at risk.  It is somewhat puzzling why an allegation like that and other allegations of violence some time ago can creep into a proceeding as discrete as this one.  For that reason, having regard to the fact that those issues are disputed, I propose to ignore them today.

24. I am obliged to take into account the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.  From what I can understand, the husband was willing to take on the child, L as a result of what occurred, and again I repeat that I am not making any finding about that incident, but it seems that he is now being somehow deprived of that role by virtue of the fact that he is not to be allowed to see J.  That seems to me to be contrary to the spirit of the legislation, and, in the event that that sort of situation continued - and as counsel for the husband said, the confusion is in the mind of the wife - then it may very well be that that is a serious issue that a trial judge will have to consider when this case comes back for final hearing. 

25. That particular sub-section of s 60CC is also repeated very clearly by parliament in sub-s (4) of s 60CC which requires a court to consider how each of the parents has fulfilled or failed to fulfil their respective responsibilities as parents, and that includes failing to participate and failing to facilitate the various functions of parenthood. It seems to me that that may very well become a very big issue in this case.

26. I am obliged to take into account family violence and family violence orders.  I do not have enough material in this case to make any findings and I am very cognisant of the fact that there are potentially issues associated with the police and Department of Human Services looming.  I am not prepared at this stage to take those into account. 

27. I am obliged to take into account any other relevant circumstance which I think is relevant.  Probably the most relevant of all of the circumstances in this case is that until recently these two children were trotting along nicely, having a relationship with their father on an alternate weekend basis and being in the primary care of their mother.  It seems to me that that is a fundamental issue for their welfare that, notwithstanding the problem that may have occurred, at least between L and her mother, the relationship between these two girls and the relationship between J and her father ought not be disturbed. 

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SHELFORD & TAHOKE