Thornton and Thornton

[2009] FamCA 1096

FAMILY COURT OF AUSTRALIA

THORNTON & THORNTON [2009] FamCA 1096

FAMILY LAW – CHILDREN – Magellan list – interim time spent – separation of siblings – priority hearing

APPLICANT: Mr Thornton

RESPONDENT: Ms Thornton

INDEPENDENT CHILDREN’S LAWYER: McCormack & Co

FILE NUMBER: MLC 991 of 2007

DATE DELIVERED: 9 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 October 2009

REPRESENTATION

FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms M Mandelert

SOLICITOR FOR THE RESPONDENT: Gorman & Hannan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms A Boymal

Orders

IS ORDERED:

1. That the Magellan Registrar issue Trial Notice Directions in chambers in anticipation of a trial in the November sittings of the Magellan List.

2. That subject to any further direction by the Magellan Registrar or further order of the contrary, this matter be listed before me for final hearing at 10.00 am on 23 November 2009 subject to part heard cases only.

3. That until further order the child C born … May, 2000 spend time with the mother as follows:-

   (a)from 3.40 pm on 9 October 2009 until 6.00 pm on 11 October 2009, with collection and return to the father’s residence by Ms W or such other person as may be nominated by the mother;

   (b)From Friday 23 October 2009 until Monday 26 October 2009 from the conclusion of school on Friday to the commencement of school on Monday with collection and return at S Primary School by Ms W or such other person nominated by the mother;

   (c)From Friday 30 October 2009 from the conclusion of school until the commencement of school on Wednesday 2 November 2009 and collection and return be at S Primary School by Ms W or such other person nominated by the mother;

   (d)Thereafter each alternate weekend commencing 13 November 2009from the conclusion of school on Friday until the commencement of school on Monday and collection and return be at S Primary School by Ms W or such other person nominated by the mother; and

   (e)At such other times as may be agreed between the mother and father.

4. That until further order the children B born … September 1998, D born … January, 2001 and E born … January, 2004 spend time with the father as follows:-

   (a)From 5.00 pm Friday until 5.00 pm Sunday on the weekend commencing 16 October 2009;

   (b)Thereafter each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday commencing 6 November 2009; and

   (c)At such other times as may be agreed between the father and the mother.

5. IT IS DIRECTED that the independent children’s lawyer forward to “K” at the Child Protection Society copies of Ms M’s two family reports and the report dated 1 October 2009 by the Department of Human Services.

6. That by arrangement with the Director of Child Dispute Services and at the Court’s expense a further report be prepared by Ms M, counsellor, by her seeing the parents and children B born … September, 1998, C born … May, 2000, D born … January, 2001 and E born … January, 2004 on 17 November 2009 and publishing her updated report by 23 November 2009.

7. That for the purpose of completing the Family Report Ms M has permission to inspect the Court file and all documents related to the issues.

8. That the report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

9. That the parties shall attend and ensure the children B born … September, 1998, C born … May, 2000, D born … January, 2001 and E born … January, 2004 on 17 November 2009 attend all necessary appointments for the preparation of the Family Report.

10. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

11. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:      MLC 991 of 2007

MR THORNTON

Applicant

And

MS THORNTON

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter is on track for a hearing in the November 2009 sittings of the Magellan list of cases.  For that purpose Ms M, a family counsellor and a regulation 7 counsellor, will prepare a report, to be funded by the court and to be available not less than three days prior to the commencement of a hearing.  The parties will be notified of appointment times.

2. The proceedings involve four children: B born in September, 1998, C born in May, 2000, D born in January, 2001 and E born in January, 2004.

3. The parents married in June 1998 and separated on 31 March 2006. Litigation between the parents commenced in May of 2007 in Federal Magistrates Court with the husband seeking parenting orders for residence of the children with time with the wife reserved.  When responding material was filed the wife sought a residence order and supervised time between the girls and their father.  Those proceedings culminated in final orders by agreement on 13 February 2008 which provided that the parties have equal shared parental responsibility, the children live with the wife and spend time with the husband  from 9am to 5pm each Sunday and then from 9am Saturday to 5 pm Sunday alternate weekends commencing in March of 2008.  Alternate weekend time, from 5pm Friday to 5 pm Sunday, was due to commence on 20 June 2008. There was also provision for school holiday time and there was provision for post separation parenting course to be undertaken by the husband, provisions about consumption of alcohol by him, denigration, and orders restraining each party from physically disciplining children to discussing proceedings with them

4. On 23 June 2008 the husband filed in the Family Court a new set of proceedings including contravention application alleging that the mother had failed to provide children on other Sundays in accordance with the Order made 13 February 2008.  The Order was varied by Justice Cronin on 27 June 2008 and otherwise proceedings transferred back to the to Federal Magistrates Court final determination.

5. On 12 February 2009 final orders were made by FM Monahan which relevantly provided for equal shared parental responsibility and for the children to spend time with the father each alternate weekend from after school on Friday until 5pm Sunday  and one half of the school holidays and on special occasions.

6. The current proceedings were commenced by the husband on 30 July 2009 by application seeking orders that the children reside with him and that the children’s time with their mother be suspended.  A Form 4 Notice of Child Abuse filed on same day alleges that child C disclosed that mother’s friend Mr R had “put his hands down her pants and undies and stuck his finger in her bum”.

7. On 5 August 2009, FM Monahan ordered that the parenting orders save as to child C remain in full force and effect, that C reside with the husband.  It was ordered that, in the event of C wishing to spend face to face time with the wife, she ensure that C not come into contact with Mr R and in the event of C wishing to communicate with the wife by phone the husband facilitates same.  The orders were implemented and the children were separated.

8. The matter was accepted into the Magellan list of cases on 13 August 2009.

9. On 5 September 2009 the wife filed her response in which she seeks that the husband’s application be dismissed and the Order of 12 February 2009 remain in full force and effect.

10. Since approximately August of this year, C has resided with the father, and B, D and E have continued to reside in the care of the mother. 

11. Since August, C has changed schools from P Primary School to S Primary School. S Primary School is, I am told by the father, just around the corner from where he lives.  It follows that C does not see her sisters at school.

12. There is a regime of time between the father and the three girls in the care of the mother, and, pursuant to those arrangements, B (11), D (8) and E (5) would next be due to go to the father on 16 October 2009.

13. The mother has not spent time with C (9) in any meaningful sense since August of 2009.  There are no orders providing that she do so. Today, the mother seeks as much time as she can have with C.  However, recognising the limitations of interim proceedings and the lack of opportunity to test evidence by cross examination at this stage, she makes a conservative application for C to spend weekends with her on an alternate basis, commencing this weekend.  The father agrees.

14. The mother also seeks time with C and to have the other children remain in her care on the weekend of Melbourne Cup.  The father also agrees to that.

15. The areas of dispute are:-

    a)For this weekend, the commencement today of C’s time with the mother (and sisters). That is, whether it be from 5 pm, as proposed by the father, or from after school, as proposed by the mother, when she has arranged for, or can arrange for Mrs W (who is the mother of her partner), to go to collect C.

    b)For this weekend, when the time will conclude.  The mother seeks that the time conclude from the commencement of school, on Monday morning; the father says it should be approximately 3 pm on Sunday, because C has a school camp.

    c)On an ongoing basis, the mother contends that the time that she has with C should commence and conclude at school.  The father opposes this.  He submits that C has settled into a routine; that it is more to C’s benefit that she be able to return home to him, where she can have a snack and change her clothes.  He also alluded to C playing with friends in the area.  The father contends that his proposal is preferable to C being collected from school by or on behalf of the mother.

16. In relation to the conclusion of the time at the commencement of each school Monday, it is submitted by the father “[C] is in a routine”.  He submits that delivery to school is something that he has done, which is obviously correct, because he is in the local area, and that it is better for C to be in his care and organised from his home for the commencement of her school week.

17. As with any parenting matter it is the best interests of the children which are the paramount consideration. In Goode & Goode[1], the Full Court acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing.  It said (at paragraph 68):-

    “…..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.”

    [1] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

18. In observing that there were certain authorities that do not sit comfortably with the Act as amended, the Full Court noted (at paragraph 72) that:-

    “…..it can fairly be 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 practical.” 

19. As to status quo, it continued:-

    “…..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 acre arrangements for the child.” 

20. The Full Court the said (at paragraph 73):-

    “That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

21. I do not have regard to the current care arrangements for C as constituting a status quo.  The current arrangements were implemented prior to any evidence being tested and prior to the release of a report from Department of Human Services to which I can, and do, have regard although I note that it is also untested.  In any event, the law is clear. Current arrangements and the need for stability are but one aspect of any determination of what is in the best interests of a child.

22. In the course of litigation, two reports have been prepared by Ms M.  In her last report, which she refers to the wife as having made allegations against the husband relating to domestic violence and his ill treatment of the children and she refers to the husband’s allegations concerning the wife’s mental health issues and sustained safe care of the children.

23. Ms M observes that conflict and acrimony between parents has escalated rather then abated since her last report.  She notes that competition between B and C was evident making them both insecure children with low self esteem and self doubt.  Ms M observed that the children tend to play both parents off against one another and to exaggerate incidents in each household to suit their needs.  Ms M opined that both parents lack insight and common reasoning.  She records that the children expressed a desire to remain in their mother’s care.

24. A report was prepared by Department of Human Services. It is dated 1 October 2009.  It recommends that all 4 children require stability and security and not to be exposed to ongoing animosity and conflict between their parents.  It states that all four children require a positive and supportive relationship with both parents and that, wherever C resides, she should have as much contact with her siblings as possible.  It is recommended that each parent undertake education by CASA/SECASA how to protect their children against sexual assault in the future and that C attend counselling and participate in protective behaviours at CASA.  It is recommended that the other children also participate in a protective behaviours course through SECASA

25. Since 1998 the Department has opened 7 investigations/intakes none of which have been substantiated by the Department.

26. There is discussion in the Department’s report that, at worst the mother did not take C’s allegation seriously enough to contact police but instead sought to discus the matter with the father.  However it does appear that she treated C’s complaint seriously as she had ensured that C did not come into contact with the alleged perpetrator and in fact changed her place of worship. In so far as the father is concerned, it is discussed that, he has failed to permit contact with the mother as well as sibling group and perhaps involved C in discussion concerning these allegations.

27. Finally, it is clear that in discussions with the protective worker C had indicated a desire to return to reside with the mother and her siblings whom she misses a lot.  There appear to be some issues with the mother’s partner in terms of discipline issues but they appear to be in the process of being addressed.

28. I must consider the s 60CC matters that are relevant, as to a child’s best interests, and if possible, make findings about them (although again it must be acknowledged that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).  Section 60CC(2) sets out the primary considerations, s 60CC(3), the additional ones.

29. It is imperative that this matter be determined prior to the commencement of the 2010 school year.  It would be most unfortunate if the children were required to approach even the long summer school vacation without knowing the parenting arrangements applicable to all of them into the future.  For that reason I will accord the matter priority by fixing it for 23 November 2009 subject to part heard cases only. Ms M’s report will not be ready before then.  However, it is my intention that the matter be dealt with so soon after the report is released as is possible.

30. I have regard to the relevant factors in the legislation. I am satisfied that the current orders protect C from any harm of sexual abuse such as that upon which the current proceedings were launched. Then, to my mind, it is most important that C spend as much time as she can with her sisters whilst still being properly organised for the school week.

31. I find that the wife’s proposal is sound.  I regard it as being in C’s best interests that she spend as much time as possible with her sisters B, D and E.  It follows that time spent by C with the wife should conclude at the commencement of school on Monday.  That means she will have an extra night with her sisters 

32. The mother will be responsible for getting C to school.  C should leave the wife’s home with everything she needs for school that day. It seems to me, the most sensible way of ensuring that is done, at least as to part, is to have her collected from school on the preceding Friday, so she will already have her school bag, any uniform she wears, lunch box and the like, and, I suppose at this age, some homework. 

33. The father advises the court that C is being seen by someone or will shortly be seen by someone from the Child Protection Society.  He does not oppose copies of Ms M’s earlier reports, and the DHS report, which has just recently been released, being provided to that agency, and I will direct that the independent children’s lawyer see to that as soon as practicable.  The reference that the father gave was “K”.

34. As I have said, the matter should be accommodated in the defended list in November 2009.  In the event there appears to be any impediment to that occurring, I reserve liberty to all parties, including the independent children’s lawyer, to have the matter mentioned before the Magellan Registrar or before myself.  The parties will be notified in due course of the time in which they are to file affidavit material for the final hearing. In this case, the affidavits will have to be filed before the report.

35. [DISCUSSION]

36. I am satisfied that the orders which I have pronounced are consistent with C’s best interests.

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

Associate: 

Date:  16 October 2009