Suffolk & Suffolk

[2009] FamCA 486

FAMILY COURT OF AUSTRALIA

SUFFOLK & SUFFOLK [2009] FamCA 486

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

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Suffolk

RESPONDENT: Ms Suffolk

FILE NUMBER: BRC 4720 of 2008

DATE DELIVERED: 27 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hirst

Hirst & Co

COUNSEL FOR THE RESPONDENT: Ms Zande

SOLICITOR FOR THE RESPONDENT: Chan Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father shall spend time with the child … born … May 2006 pending the issue of a psychiatric assessment, pursuant to these orders, from 4.30pm on Thursday afternoon until 9.30am on Sunday morning and in alternate weeks from 4.30pm on Thursday until 9.30am on Monday with the Father to collect the child from the security gates outside the Mother’s residence on Thursday afternoon and with the Father to deliver the child to the security gates outside the Mothers residence on Sunday morning and Monday morning.

2. Pursuant to Section 65L of the Family Law Act 1975 compliance with these parenting orders is to be supervised by a Family Consultant nominated by the Manager, Child Dispute Services of the Brisbane Registry of the Court and the supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation compliance with, and the carrying out of, the parenting orders.

IT IS ORDERED THAT:

1. The parties do all such things, attend all such interviews and sign all such documents as might be necessary so as to participate in a process conducted by Mr C, Family Consultant, designed to produced a family report pursuant to s 62G of the Act at a time considered by Mr C to be appropriate for that process.

2. The parties be at liberty to provide by email to the Associate to Justice Murphy minutes of consent in respect of time to be spent by the parties with the child on Father’s Day, Mother’s Day, birthdays and the like.

3. To the extent that the exception provided for in s 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the parties shall have leave to publish to Family Consultant Mr C, the report to be prepared by Dr V in these proceedings, when it becomes available.

IT IS FURTHER ORDERED THAT

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4720 of 2008

MR SUFFOLK

Applicant Father

And

MS SUFFOLK

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties separated after a short relationship on 31 July 2007.  At that time their only child, a daughter, was about 14 months old. 

2. Despite the fact that the child was very young the parties effectively immediately instituted a regime by agreement between the two of them where the father was seeing the child three nights a week split between 4 pm Tuesdays and 8.30 Wednesdays, and 4 pm Fridays and 4 pm Sundays.  Accordingly, from the time the child has been 14 months old she has been seeing her father about six nights a fortnight.

3. That situation continued, in that sequence, until a particularly unattractive set of events which occurred towards the end of last year.  Whilst there may be conflictual factual accounts relating to those events it seems clear at least that the mother, as it were, held the child over in the sense that she did not make the child available in accordance with the existing situation existing for about 18 months until that time. On 12 February this year, the father took the child from the mother's care at a shopping centre, apparently with the assistance of private investigators. 

4. The circumstances just described - even as baldly as that - make it clear that those events do neither of the parties any credit.

5. Subsequently, orders were made on 27 February 2009 by consent.  Those orders provided that the applicant and respondent share equally the parental responsibility for the child; that the parties each be responsible for her day-to-day care when in their respective care, and that the father spend time with and communicate with the child from 4.30 pm Thursdays to 9.30 am Sundays, and to live with the mother at all other times.  It was also provided that changeover be effected through the agency of a nanny employed by the father.

6. The parties also agreed that a psychiatrist to be agreed upon between them prepare a report on instructions also agreed upon between them.  The parties have agreed upon Dr V to prepare that report, but the process involved in the conducting of interviews between Dr V and the parties, and the preparation of the report, is likely to take some time and the report may not be available until about September.

7. On 17 April 2009 the family consultant, Mr C, prepared a Children and Parents' Issues Assessment in this matter.  Mr C flagged a number of issues directly relevant to the child’s best interests.  They included what he described as "the total breakdown of communication between the parents".  Mr C went further and said that that lack of communication was likely to prevent "any likelihood of a positive co-parenting relationship" between them.

8. There are allegations of domestic violence made by the mother against the father, and allegations by the father against the mother that she is suffering from post-natal depression and that "at times her behaviour towards [the child] borders on aggressive and neglectful".  Unsurprisingly, Mr C flags as an important issue the effect, both current and in the future, on the child of the parental dispute/dysfunction.  There is, at the same time as these parenting proceedings, a financial dispute between the parties, and Mr C flags the tension emanating from those proceedings as also being a significant issue.

9. For reasons which remain unclear, when the matter was before O'Reilly J on 27 February 2009 her Honour determined to deal procedurally with the application with respect to financial issues in her Honour's docket but indicated to the parties that the parenting aspect of the dispute would be transferred to me. 

10. The parties each contend that, in circumstances where there is the highly charged and conflictual situation to which reference has already been made, and where there is likely to be issues of veracity and credit involved in both aspects of the proceedings, that both aspects of the proceedings ought be heard by the same Judge.  It seems to me that that seems entirely sensible and appropriate. 

11. Her Honour further ordered that the matter come before the Court again in the judicial duty list on 28 April 2009.  That was administratively altered so that that judicial duty list occurred today, and it is that list that the parties appear before me for the purposes of arguing an interim parenting dispute. 

12. Part of the current dispute between the parties relates to time that the child might spend with the parents on what might loosely be described as special days; birthdays, Mothers' Day, Fathers' Day, and the like.  Each of the parties have indicated, to their credit, that they think it highly likely that those matters will be the subject of agreement between them and I indicated to the counsel and solicitor for the respective parties that I would afford them the opportunity of conducting those negotiations with a view to them sensibly resolving those issues by agreement.

13. That being so, the issue before me is whether the existing orders made by consent, which provide for time between the child and her father as previously indicated, should be altered so as to provide for her to spend time with the father from 4.30 pm on a Thursday afternoon until 9.30 am on Sunday morning, and in alternate weeks from 4.30 pm Thursday until 9.30 am on Monday with the father to collect the child from the security gates outside the mother's residence and otherwise orders as contained in the amended response filed 22 April 2009.

14. The effect of those orders is to increase the father's time by providing for time to be spent by him with the child for the whole of Sundays in each alternate week.  Concomitantly, that means that the mother is not able to spend time with the child on an entire weekend, but during weekend time would be restricted to spending time with her from 9.30 am on Sundays each alternate week.

15. The father says that he intends during the additional Sunday to enrol the child - who I point out is not yet 3 - in ballet lessons.  If that was the only purpose of the time then I would have little difficulty in dismissing the application given the child’s age. 

16. The mother contends that the existing arrangements have been arrived at by consent and that, in effect, there has been no change and therefore the child’s best interests would indicate that there should be no change.  Initially, it seemed that that argument may have been based in the “rule in Rice v Asplund” but counsel for the mother, in my view properly, concedes that the rule has no application to orders which are not final orders.  Nevertheless, a significant component of the mother's argument is that the current arrangements are stable and working well and should not be changed.

17. A further component of the argument, though, hints at the application of something akin to the rule in Rice v Asplund by suggesting that the orders were intended to remain in place until a psychiatric assessment was done and that no real case is made in the child’s best interests for a change to take place. 

18. It should be observed, in my view, that the orders by consent made on 27 February were made in circumstances where the difficulties for each of the parties, and the child, leading up to those orders were very significant indeed. They were also made in light of the assessment by Mr C about there being a total breakdown in communication, and the extreme unlikelihood of a positive co-parenting relationship taking place between the parties.

19. It was also indicated as appropriate, in the circumstances earlier outlined by Mr C, that the parties undertake the post-separation parenting program run by Spriritus Connections.  It seems to me that any such program could only assist the parties in this case given the assessment of their dysfunction and the high conflict between them which neither of their representatives seeks to argue against.  Each of those representatives has indicated that each of the parties are agreeable to participating in that program.

20. As indicated earlier, the parties have also agreed upon the preparation of a psychiatric report by Dr V.  Each of the parties also agree, as recommended by Mr C, that a family report be prepared pursuant to s 62G of the Act.

21. In the circumstances earlier indicated, the Court sought from each of the parties instructions with respect to their attitude to an order being made pursuant to s 65L of the Act.

22. I consider that s 65L of the Act has particular application in circumstances of the type confronting the Court in this case. There is high conflict. There has been a very unattractive incident between the parties in relatively recent times that is highly likely to have been upsetting - at the very least - to the child and possibly damaging, and the assessment of Mr C is that these parties have very little, if any, prospect of being able to communicate appropriately and properly as they should as co-parents of the child.

23. It seems to be an entirely appropriate case where the Court should avail the parties of the assistance of a family consultant by reference to that section of the Act in the parenting orders made in respect of the child. Mr Hirst, in indicating his client's agreement, says that his client agrees but does so without knowing the precise terms of what a s 65L order will imply.

24. Of course, by definition it is, in effect, impossible to know precisely what the terms of a s 65L order might imply because by definition the order relies upon the judgment of the family consultant, not to mention the practicalities of organising interviews and the like, as might be appropriate to the particular child and the particular circumstances of the parties.

25. I indicate that I will make an order in terms of s 65L of the Act; namely that compliance with the parenting orders about to be made by me shall, as far as practicable, be supervised by a family consultant, and if at all possible that the family consultant be Mr C.

26. The central issue confronting me, then, falls to be considered in circumstances where, as a result of the necessity for a family report and a psychiatric report, the parties are likely to spend some months before a trial of this action would be heard.  It may be that the psychiatric report and any further input from Mr C would not take place until the latter part of this year.  Whether or not the trial of the parenting aspect of this matter is dealt with by O'Reilly J, by me, or some other Judge will await, at least in the first instance, a directions hearing to be heard by Registrar Turner at 2.30 pm on 8 May.

27. In either, or any, event it is unlikely that a trial would be heard much before the end of this year at the earliest. Accordingly, the decision to be made by me today in respect of the competing applications for the additional time is whether that additional time should be ordered for that length of time (all else being equal) in the absence of a psychiatric report, but with the parties undertaking a post-separation parenting program and the s 65L process otherwise provided for in these orders.

28. It seems to me that the difficulty with the central argument made by the mother is the terms of the Act, particularly in circumstances where both parties concede that an order for equal shared parental responsibility ought be made on an interim basis. 

29. In particular, s 60B(1)(a) of the Act provides that Pt VII of the Act has, as one of its primary Objects, 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". 

30. In other words, the essential edict provided by the legislature to the Court to act only in the best interests of children the subject of proceedings before it, has superadded to it an obligation to consider as an object of the legislation that such best interests in terms of the time that children spend with parents should be maximised to the extent that it is consistent with those best interests.

31. The Object just referred to is significantly underlined by the first of the Principles applicable to parenting orders made by this Court; namely that 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. 

32. Those objects and principles are underlined by the Primary and Additional Considerations which form the basis upon which a Court determines what is in a child's best interests.  Significant in terms of the issues in this case, at least on an interim basis, is the first of the primary considerations; namely the benefit to the child of having a meaningful relationship with both of the child's parents.

33. Stripped to its essentials, it seems to me that the core of the argument made on behalf of the mother is this. The mother is actively seeking employment. If employment is obtained it would be on weekdays. The time that the mother would have with the child would, as a result, be significantly restricted.  That seems clear enough.  However, it seems to me - particularly in interim proceedings – that it is appropriate for a Court to proceed upon a series of possible permutations that may, or may not, occur in circumstances where the only evidence before the Court is that the last employment undertaken by the mother in January of this year occurred so as to enable her to spend time with the child in accordance with the orders.

34. If the situation confronting the Court was that the parties had recently separated I would have some considerable concerns as to whether the amount of time provided for in the orders are in the child’s best interests. But, in circumstances where parties have arranged post-separation care arrangements for themselves, and where those arrangements have existed for some time, it seems to me that the stability created by those arrangements and by a child, even of very tender years, becoming accustomed to those arrangements and accommodating them, is a very significant factor.  I find it is a very significant factor in this case.

35. If, then, the child is seeing her father three times a week - and there is on the evidence before me no reason to suggest why she should not see her father for an additional night each alternate week, it seems to me that the terms of the legislation and the child’s best interests require an order to be made in accordance with para (3)(a) of the amended response to an application in a case dated 22 April 2009.

36. For those reasons I will so order.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  4 June 2009