Slade and Bernard
[2009] FMCAfam 554
•29 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLADE & BERNARD | [2009] FMCAfam 554 |
| FAMILY LAW – Parenting – interim parenting – allegations of family violence – separation of siblings – who should reside in the former matrimonial home. |
| Family Law Act 1975, s.60CC |
| Davis & Davis (1976) FLC 90-642 Goode & Goode [2006] FamCA 1346 Panayotides & Panayotides (1997) FLC 92-733 Plowman & Plowman (1970) 16 FLR 447 |
| Applicant: | MR SLADE |
| Respondent: | MR BERNARD |
| File Number: | SYC 2501 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 28 May 2009 |
| Date of Last Submission: | 29 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2009 |
REPRESENTATION
| Solicitor-Advocate for the Applicant: | Mr Delaney |
| Solicitors for the Applicant: | Delaney Lawyers |
| Solicitor- Advocate for the Respondent: | Ms Dawson |
| Solicitors for the Respondent: | Robyn Sexton and Associates |
ORDERS
(a)On or before 3 pm on 6 June 2009 the husband vacate the matrimonial home situate at Property K in the State of New South Wales, and thereafter the husband be restrained from occupying or entering upon those premises without the express written consent of the wife, or interfering with or disturbing the occupation of the premises by the wife and the children of the marriage.
(b)For the purposes of Order 1(a) herein, the husband will do all acts and things to ensure that the utilities connected to the former matrimonial home remain connected to the home.
The husband be restrained from removing any furniture or household items from the matrimonial home with the exception of the following:
(a)his personal clothing;
(b)tools, equipment and records used for the husband’s work purposes (if any);
(c)his personal computer;
(d)the flat screen plasma television;
(e)the chest of drawers and dining table from his grandfather;
(f)any other items as agreed between the parties in writing prior to the husband’s departure from the home.
Pursuant to section 114 of the Family Law Act, an order be made for the personal protection of the wife, and the husband be restrained from approaching, assaulting, threatening, intimidating, verbally abusing or harassing the wife.
Once the father vacates the matrimonial home in accordance with these Orders, the children [X] (born in 1997), [Y] (born in 1999) and [Z] (born in 2001) live with the wife.
Once the father vacates the matrimonial home in accordance with these Orders, the children spend time with the husband
(a)Each alternate weekend commencing 12 June 2009 from after school on Friday until before school on Monday, when the husband will collect the children from school at the commencement of the period and will return them to school at the conclusion of the period; and
(b)For one night on the other week, as agreed between the parties but failing agreement, from after school on Monday to before school on Tuesday commencing on Monday 22 June 2009; and
(c)For one half of each two-week school holiday period, to be the first half of said holidays in even-numbered years, and the second half of said holidays in odd-numbered years.
Pending the husband vacating the matrimonial home in accordance with these Orders [Y] is to remain in the care of the mother, and [X] and [Z] are to remain in the care of the father. The children are to spend time together, and with each parent, as agreed between the parents, but failing agreement:
(a)The children are to spend time with the mother on Saturdays from 9.00am to 5.00pm; and
(b)The children are to spend time with the father on Sundays from 9.00am to 5.00pm.
The husband communicate with the children by telephone not more than once per day, and not later than 6 pm each evening.
The parents shall each inform the other promptly of any illness or injury suffered by the children or either of them requiring hospitalisation or prescription medication and in the event of the latter each parent shall ensure that the children have available to them a working telephone service and are instructed in the use of such service should the need arise.
Both parents shall authorise any treating general practitioner and/or medical specialist to provide any information which either of them may reasonably require concerning the welfare of the children.
Parties are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing any proceedings between the parents or the parent’s relationship in the presence or hearing of the children or permitting any other person to do so.
The parties do all things necessary to facilitate the attendance/continued attendance of each of the children at Assess and Assist Psychologists (or such other counselling or psychology service as is recommended by Assess and Assist) on such terms and for such frequency as is recommended by that service.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date to be advised for the purposes of the preparation of a family report. The Family Report to deal with the following matters:
(i)Any views expressed by the children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(ii)The nature of the child’s relationship with each parent and other relevant persons;
(iii)The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
(iv)The likely effects of any changes in the child’s circumstances;
(v)Any practical difficulties and expense of proposed parenting arrangements;
(vi)The capacity of parents or relevant others to provide for the needs of the child;
(vii)The maturity, sex, lifestyle, background (including lifestyle, culture, and traditions) of the parents;
(viii)The attitude to the child, and to the responsibilities of parenthood demonstrated by each parent;
(ix)Any family violence involving the child or a member of the child’s family;
(x)The extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, including participating in long term decisions about the child, spending time and communicating with the child;
(xi)The extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in long term decisions about the child, spending time and communicating with the child;
(xii)The extent to which each parent has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
(xiii)In addition possible issues of alignment;
(xiv)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
I DIRECT the solicitor for the Applicant to notify the Family Reporter of the hearing date and request the Family Reporter be available, if required by the parties, on the first morning of the hearing.
The matter be adjourned to 9 July 2009 at 9.30am for mention.
The matter be adjourned to 1 October 2009 at 10.00am for a two day final hearing.
Each party file and serve any affidavits on which they intend to rely by no later than 4.00p.m on 18 September 2009. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 4.00p.m on 18 September 2009.
No later than two (2) working days prior to hearing each party forward to my Associate a case outline setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing.
Parties have liberty to apply on 72 hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Slade & Bernard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2501 of 2009
| MR SLADE |
Applicant
And
| MR BERNARD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Before me are competing applications for parenting orders relating to three children, [X], who is 12, [Y], who is 10, and [Z], who is seven. The applicant father is Mr Slade. He is 47 years old and he is a [tradesman] living at Property K. The respondent mother is 46 years old. She is, I understand, currently living in [C], [approximately 400kms from Sydney] and she is a [occupation omitted]. The parents married in 1994 and separated this year, though the evidence indicates that the relationship has been a troubled one for many years. There is a high level of conflict and a very low level of communication and trust between the parents. There have been precipitous and ill-considered actions by both parents. Each makes serious allegations against the other. It is abundantly clear that the three children are caught in the metaphorical crossfire of conflict between these parents.
The mother and the children travelled to [C] initially for what seems to have been a holiday, but they remained there. It appears that the children remained there without the consent of the father. The children it appears were supposed to come home on 25 April but did not. The wife enrolled them in schools in the [C] area. The wife's actions were wrong. Her actions are still wrong even if I accept her allegations about family violence and that she was, in effect, fleeing from the same. The decision to not return the children was not child-focused, lacked insight and was irresponsible.
Not to be outdone, however, the father decided that he would simply take two of the children back, thus creating a situation where the siblings were separated. Not only did he do that, but he did it after he had commenced proceedings in this court. His actions were wrong. His actions remain wrong even if I accept his version of the facts and his case. His decision to, in effect, take the children back was not child-focused, lacked insight and was irresponsible.
One wonders whether either of the parents stopped for even one moment to think about the impact of their actions on the children. From where I sit I doubt it very much. What was the impact on the children of suddenly being taken out of their schools, of being taken away from the other parent, no matter what the other parent says and thinks about the other, and now of being taken away from each other? The irresponsibility of both parents is almost breathtaking and the potential for lasting harm to these children is immeasurable.
In any event, the current situation is that the mother and 10-year-old daughter [Y] live in [C] and the father and the two boys aged 12 and 7 live in the family home at [K]. There has been one contact weekend here in Sydney and it was not without its problems, perhaps unsurprisingly, given what the children have gone through.
The competing proposals
The competing proposals are contained in the following documents: firstly, there is the application of the father filed 29 April 2009. He seeks orders, in effect, that the children be returned to the family home. He seeks orders in relation to counselling and in his final orders he proposes that the children live with him, that he have sole parental responsibility and that the children spend time with their mother each alternate weekend, half the school holidays and on special occasions.
The mother's proposal is contained in her amended response that was filed on 22 May 2009. In the orders she seeks, in effect, an order for exclusive occupancy of the family home, certain injunctions about the husband removing furniture, an injunction for her personal protection, an order that the children live with her and spend each alternate weekend with the father and various orders about telephone communication, counselling and non-discussion of proceedings. In the mother's counsel's submissions to me on 28 May he indicated that the only options now advanced on behalf of the mother involved her living primarily in Sydney, preferably in the former matrimonial home, but otherwise in an area which would allow the children to be returned to their schools.
There is common ground between the parties in terms of how their case was presented. It is agreed that the children must be reunited, that is, that there should no longer be split siblings. It was agreed that the children should go back to the schools where they were attending immediately before the move to [C]. It is implicit in the competing proposals that the children should be reunited and live in the family home.
The evidence before me consisted of a series of affidavits filed by the applicant father and an affidavit of his solicitor, Mr Delaney, to which was annexed relevant correspondence. The mother's evidence consisted of a series of affidavits by herself, two affidavits of Ms B and an affidavit of Ms H and Mr B. There is also Notice of Risk of Child Abuse. In evidence I also have the child dispute conference memorandum and I have documents tendered to me in evidence together with documents produced on subpoena.
The issues I need to determine are as follows:
a)Where, that is to say with whom the children should live as between the mother and the father;
b)The contact they should have with each parent; and
c)The question of exclusive occupancy of the former matrimonial home.
The applicable law is of course contained in Part VII of the Family Law Act. The Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 sets out guidance about the principles to be adopted in dealing with these applications. I specifically incorporate into these my extempore judgment a number of paragraphs from that judgment starting with paragraph 68 as well as paragraph 72.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
I need to make the following observation about paragraph 68, that is the paragraph in Goode that is often quoted in interim applications such as this. In this case, Mr Lloyd, counsel for the applicant father, at least implicitly, reminded me that the Full Court said at paragraph 68 that 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 observation I make about those comments is that it is not a prohibition against making findings, especially in a case where there are serious allegations and where the evidence is there to support findings.
The Full Court in a much earlier decision of Panayotides, which is reported at (1997) FLC 92-733, made the following comments. The Full Court quoting from the judgment of the trial judge said:
The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent. As was submitted by counsel, I simply must do the best I can. I look to the versions of each of the parties. I find the common ground and I note the areas of conflict. I can look to the inherent probabilities. Of course when one is talking about the intent of the parties, where there is a matter of some conjecture, one looks to the conduct of the parties and any documentary or corroborative evidence which may help to determine that issue.
In relation to the occupation for exclusive occupancy, the applicable law of course is contained in two well-recognised and oft-cited cases; the Full Court's decision in Davis & Davis (1976) FLC 90-642, and in particular the passage at page 75,309 in the Family Law Cases Report, and secondly, the decision of his Honour Carmichael J in Plowman & Plowman (1970) 16 FLR 447, and in particular at page 447.
I propose to discuss the evidence by reference to s.60CC of the Family Law Act. Dealing firstly with s.60CC(2)(a), no-one submitted in this case that there is an issue at this point about meaningful relationship between the children and the parents. I agree. It is possible, however, that the actions of both parents have had an impact by way of potentially undermining what seems to be a meaningful relationship between the children and both parents. One of the issues that I propose to request to be considered in the context of a family report is whether either of the parents have done things or said things that have had or will potentially have the effect of aligning one child towards one parent but away from the other. I can make no findings about this, but there are aspects of the evidence that give me concern, some of which I will refer to, especially the extent to which these children seen to have become involved in the conflict of their parents, both before and after separation and indeed in this litigation since it was commenced.
Section 60CC(2)(b) of course refers to protecting the children from harm or the risk of harm, specifically, the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. It is part of the wife's case that she is the victim of long-running family violence perpetrated by the husband. Indeed, I understand that it is at least implicit in her case that her actions in moving to [C] were, at least in part, a response to this family violence. The mother's evidence about family violence is found in her affidavit filed on 15 May 2009 commencing from paragraphs 12 to 35. The evidence of verbal and physical abuse is quite detailed and spans about seven years. The father's evidence in response is contained in his affidavit filed 27 May and is in paragraphs 39 to 72. He denies the allegations but often in a non-specific way and at times he seeks to portray himself as the victim of the wife's abuse, which is somewhat but not entirely inconsistent with the way in which his evidence was presented in his earlier affidavits.
It is notable that the allegations that he, that is, the father, makes about the mother. For example, at paragraphs 41 he describes her as having an inferiority complex. At paragraph 42 he is critical of her homemaking and parenting. Paragraph 53 he described her as a black widow spider, paragraph 54 as a surrogate mother whose sole interest was in herself. In other words, that which the husband does admit to of itself raises concerns. In his first affidavit at paragraph 6 he raises concerns about the mother's mental stability and yet he proposes substantial and significant time between the mother and the children without supervision.
The evidence of the mother and the father in this case conflicts insofar as it relates to family violence, though there are aspects of the father's evidence that do raise concerns. In a case like this one looks for corroborating material or the absence of denials where one should and possibly could be expected to be made. The affidavit of Ms H filed
15 May 2009refers to the deponent seeing the wife with a black eye. The mother alleges that the father's parents observed her with a black eye, but his parents, clearly on notice of the allegation between 18 May and 28 May, did not take the opportunity to rebut the same. Annexed to the father's affidavit of 27 May is a file note of a consultation with a psychologist, Mr C, on 30 November 2007. This is a note of the interview dated 30 November 2007. In that record it states:
A large, powerfully built man, who is a successful, self-employed [tradesman] and sometime [sport omitted] coach. Mr Slade increasingly concerned about the marriage and [Ms Bernard]’s verbally and physically aggressive behaviour and apparent self-centredness. He claims to be verbally but not physically aggressive during their arguments and would like matters to be on a more constructive footing.
Whilst this record is, on the one hand, consistent with the father's assertion about what he says was the abuse perpetrated on him by the mother, it is also a clear admission about his verbal aggression towards her.
Documents produced on subpoena by Access and Assist Psychology, who appear to have been working with the whole family in a therapeutic capacity for some time, also provides insight. I attempt to summarise these notes and purely by way of overview. The notes of the mother's attendances record fairly consistent complaints about verbal abuse, attempts to control by the father, aggression and denigration. The father's notes are clearly very critical of the mother, particularly her parenting. The notes relating to [Y]'s attendance - and [X]'s as well - I must say are deeply disturbing. [Y] refers to tension in the home, mum and dad fighting, dad being very rough and insensitive, dad fixing problems by swearing and smacking, hears dad say unpleasant things about mum, dad verbalises aggressively. [X] refers to constant feuding between the parents and that he saw mum pushing dad down the stairs. The notes present a very disturbing picture of family life in the family home that was characterised by high conflict for which the children have not been protected. It is completely unsatisfactory from the children's perspective. But what is even more disturbing are the reports of both children that their father has been telling them things about their mother, about the relationship between the mother and the father and thus involving them in matters that should be strictly the domain of parents. This must stop.
I focus for one moment on events that occurred on 6 January 2007. The mother deals with this at paragraph 27 of her first affidavit and the father responds at paragraph 61 of his affidavit on 27 May. There are two conflicting versions of what is undoubtedly an ugly incident. What is apparent from the evidence is this: firstly, the mother got a black eye out of it. The husband admits this. He says it was accidental. Certainly Ms H saw the black eye. Nextly, the father says he sustained scratches on his neck and back of ear as a result of the incident. However, he adduces no corroborative evidence of this even though his parents were alleged to have seen these injuries and could have corroborated this. Next, the mother says the children were present. The father says the children were not present. But one of the children refers to this incident in the counsellor's notes. So I cannot accept the father's assertions about this. On balance, I prefer the mother's evidence about this.
The difficulty in making even tentative findings in an interim case is self-evident and this was clearly recognised by the Full Court in Goode & Goode, specifically in the passage to which I have referred. But it is highly problematic not to make findings, even tentative ones, about critically important issues relating to the welfare of children. To not make findings at this stage in this case would be to sweep under the carpet evidence that, in my opinion, clearly signals to the court that there has been family violence in the form of at least verbal abuse but possibly physical abuse perpetrated by the father against the mother and to which the children have been exposed. Even a temporary order like the present one cannot ignore this evidence, particularly given its relevance as a primary consideration under s.60CC(2). I find, therefore, that there is a need to protect the children from harm, from being subjected to family violence.
The next of the additional considerations is s.60CC(3)(a), the views of the children. There are no views on which I would place any weight. I have concerns about the views that are reported in the affidavits of the parents, specifically the father, and in particular, that they have been heavily influenced by the inappropriate involvement of the children in parental issues. The issue of the views of the children is very much a matter that will be significant at a final hearing but not for the present time.
The next of the additional considerations is s.60CC(3)(b), the nature of the relationship between the parents and the children. It is part of the father's case that the relationship between the mother and the two boys is strained and that therefore placing the boys in the mother's care might result in stress for them. There is some evidence to suggest even in the counsellor's notes that the mother's relationship with [X] is strained at times. The father's evidence about these matters is unreliable. The mother certainly acted unwisely, to say the least, in taking the children and retaining the children in [C]. But the father acted unwisely in taking matters into his own hands and taking them back. The stress on the relationship between the children and the parents that arose out of these events is a self-imposed one, not that this ameliorates it from the perspective of the children. One can only hope that reuniting the children in the family home with one parent there and returning them to the schools and the routine to which they were previously accustomed will mitigate any concerns that I have about the boys in their relationship to their mother. In any event, if an order is made for the ongoing involvement of the counsellors who have been working with the family, that too might mitigate these concerns.
Section 60CC(3)(c) talks about the willingness and ability of parents to facilitate an ongoing relationship between the parents and children. The mother's actions in going to [C] and staying there I have already criticised. They signal a possible lack of willingness in this regard. No doubt this will be subject to close scrutiny at a final hearing. However, the current proposals of the mother lead to no concerns, at least from the mother's perspective, about this consideration. I do wish to signal to the father, however, that continued involvement of the children in these proceedings by him will, indeed may, expose him to assertions that he is undermining their relationship with the mother. I can take it no further, but I certainly hope that the father takes the hint.
Under s.60CC(3) I am required to consider the likely effect of changes of orders on the children. They have been through many changes, but a return to the family home and schools I think will adequately resolve this. Yes, it is true that one parent will be outside of the home, but the benefit of this will be that it reduces the volatility that has existed in the home.
Are there any issues of practical difficulty and expense? On the basis that the mother will return to Sydney, that the children are back in the family home and subject to the issues about exclusive occupancy, there are no issues of practical difficulty and expense.
I am also required to consider family violence and family violence orders. I think I have adequately covered that.
Both parents have much to offer these children, but they obviously cannot do it together. Only one of them can be the person with whom they live in the family home. The mother will be that person, having regard to all the matters set out above. I will deal below with issues of exclusive occupancy. But subject to that order, pending further order, the children will live with the mother and spend time with the father. She proposes contact each alternate weekend from Fridays to Mondays and so does he in his counter-application. But I do not think either proposal is enough. I will make an order to the effect that there be one other overnight in the alternate week and if the parties are unable to agree it will be from after school Monday to before school on Tuesday. So the orders will also provide for liberal telephone communication.
In relation to the application for exclusive occupancy, it is noticeable that the father's evidence is limited to assertions about his needs to remain in the home to operate his business. But the evidence he offers in support about this is scant and is contested in any event. However, his counsel I think very wisely and properly conceded that this case would need to be determined by reference to what is best for the children primarily, though not necessarily ignoring considerations of hardship to the father. I exclude as a possibility a sharing of the family home in any way. It is far too volatile a situation between the parents. However, I need to allow time for the father to make alternative arrangements. He had the opportunity to adduce evidence about the impracticality of this from a financial perspective. He has not done so. I note that the parents own the property next door. I must say I do not think the father moving next door would be an appropriate solution to the problem. The father appears to be very close to his parents who have provided support and assistance in the past. I do not know their circumstances and whether that assistance is still possible. It is possible that other family members are available. I therefore propose to make an order that the father vacate the family home by Sunday, 6 June at 3 pm.
The wife seeks, and I propose to make, an injunction for her personal protection based on the evidence that I have referred to above. I will make mutual non-denigration orders and orders to the effect that the parents must cease discussing with the children the separation, the breakdown of the relationship or these proceedings. I am in a position to expedite the hearing of this matter and I propose to set it down for hearing on 1 and 2 October this year. I note that is very short notice and that that might cause disruption in terms of choice of counsel. But under the circumstances this case is, to use the vernacular, screaming out for a final settlement, a final order, if necessary. For the sake of the children, the first available dates need to be grabbed. I will order a family report. I will order an Independent Children's Lawyer. I will direct the parties to file and serve all evidence on which they intend to rely by 18 September and a hearing fee needs to be paid on that date or a waiver thereof sought. I propose to grant leave to relist on 72 hours' notice. I am going to make the orders that I now provide to Mr Delaney and to Ms Dawson.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 3 June 2009
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