Tilney and Liatos (No.2)
[2007] FMCAfam 917
•7 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TILNEY & LIATOS (No.2) | [2007] FMCAfam 917 |
| FAMILY LAW – Variation to interim orders – variation of contact. |
| Family Law Act1975 ss.60CC(3)(c) & (i), 60CC(4), 60B(1), 60CC(3)(l) |
| Goode v Goode (2007) 36 Fam LR 422 |
| Applicant: | MS TILNEY |
| Respondent: | MR LIATOS |
| File number: | CAM 1627 of 2006 |
| Judgment of: | Neville FM |
| Hearing date: | 22 October 2007 |
| Date of last submission: | 22 October 2007 |
| Delivered at: | Canberra |
| Delivered on: | 7 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Farrar Gesini and Dunn |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | MacPhillamys Lawyers |
ORDERS
With the exception of the orders relating to drug testing, the Orders of 18th September 2007, as amended, shall be discharged and replaced with “the Mother, Ms Tilney, shall spend time with her son A for four (4) days per week (Monday, Wednesday, Friday and Saturday). Those days shall comprise two full days between the hours of 9am and 5 pm, and two half days between the hours of 9am and 1pm, or 1pm and 5pm, as agreed between the parties. As previously ordered, the time with her son is to be supervised by one or both of A’s maternal Grandparents.”
IT IS NOTED that publication of this judgment under the pseudonym Tilney & Liatos approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1627 of 2006
| MS TILNEY |
Applicant
And
| MR LIATOS |
Respondent
REASONS FOR JUDGMENT
Litigation seeks to resolve legal and related issues of contest between parties. Proceedings in this Court that involve children can, and often do, also provide opportunities that might not commonly be part of other legal process. This is such a case because the further interim application before the Court provides, perhaps unexpectedly, yet another opportunity not only to re-visit the care of the parties’ 3 year old child, A, but also and especially for Ms Tilney and Mr Liatos to break free of, or at least to take steps to palliate, a recently caused but increasingly corrosive level of distrust between them.
The pivotal issue between the parties, now and in the future, is whether they can sufficiently put aside this potentially toxic dimension of their relationship and, rather than focus on sentiments of betrayal and retribution, to concentrate on A’s best interests. Whatever the parties feel by way of justification for their obviously deepeningly strained, if not overtly noxious, relationship, doubtless their learned legal representatives have advised them, or will do so soon, that this Court is statutorily enjoined to consider, among a number of things, “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.”[1]
[1] S.60CC(3)(c) of the Family Law Act 1975. See also s.60CC(3)(i) and s.60CC(4). No less important is s.60B(1), which provides: “The objects of this Part are to ensure that the best interests of children are met by: (a) 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.”
Given the recent testimony of the parties in relation to this very question that I put to each of them in the witness box, and perhaps especially the evidence of Mr Liatos, it is unnecessary at this time to rehearse what each of them clearly said in response to the question of their willingness to encourage A’s relationship with the other parent.[2]
[2] I am also mindful of s.60CC(3)(l), which requires the Court to be mindful of making orders in the light of those “that would be least likely to lead to the institution of further proceedings in relation to the child.” In this regard I would be derelict if I did not state the obvious fact that while-ever these proceedings are unresolved, the parties’ wounds will remain raw and untreated. As well, the potential effects on A of protracted litigation, both in these proceedings and in the event that they are taken further, cannot and should not be under-estimated.
While acknowledging the centrality of a wide range of sections in Part VII of the Act, and the judicial guidance provided by Goode v Goode,[3] it is hopefully sufficient that I draw attention to the relevant sections of the Act I have just mentioned that seem to be especially pertinent in the circumstances of these earnestly contested, sometimes patently bitter proceedings.
[3] Goode v Goode (2007) 36 Fam LR 422.
The Current Application
At the conclusion of evidence on the last occasion – the penultimate hearing day (22nd October, 2007) - Ms Tilney’s Counsel (Mr Millar) made an application that the current orders be varied so as to allow A to spend more time with his Mother. The application was resisted by Mr Liatos’s Counsel (Ms Tonkin). Without detailing all of the contours of each parties’ submissions, it will suffice for current purposes to note that Ms Tilney contends that it would be in A’s best interests for him to spend more time with his Mother until the final resolution of these proceedings.
For his part, Mr Liatos contended firstly that there has already been one change to the orders made by Mowbray FM last March. That change was brought about by my Orders of 18th September (as amended), which provided for more limited supervised time between A and his Mother. Ms Tonkin submitted that it would be unsettling for A to have the regime under the current orders changed so soon.[4] Alternatively, she contended that with the conclusion of the case somewhat near at hand - with only the evidence of Professor Farrell and the Family Consultant to be taken – if there was to be a further interim application, at the conclusion of the hearing would be the most apt time to make an application of the kind now pressed on the Court.[5]
[4] I might mention here that there was a suggestion by Ms Tonkin on the last occasion to the effect that the purpose behind Mr Millar seeking reasons for the orders made on 18th September was so as to facilitate, if necessary, an appeal. (See Transcript of Evidence: 22nd October 2007, par. 10 of pg 71). However, the Transcript of Evidence of 25th September 2007, par. 35 of pg. 1, confirms that the request was made because Mr Millar had to leave the Court a tad early to catch a return flight to Sydney before the judgment was delivered quite late in the afternoon.
[5] It was also suggested by Mr Millar that the current application was important because of the likelihood that judgment would be reserved (perhaps for a not insignificant time) and, therefore, a change in orders to allow more time between Mother and son was appropriate in the circumstances. To the degree that a prognosis is possible, it is my intention to have a final judgment in this matter delivered before Christmas.
This is a case of paradoxes. Both parents agree, reasonably readily, that each is a good parent of their son A. Both parents, especially Mr Liatos, have significant esteem for the other’s family. Both parents seek what is in A’s best interests. Both parents accept, and readily concede, that they endeavour to present to and act towards A relatively unaffected by any negative thought, emotion, or otherwise anything untoward in relation to the other party. As I have already indicated, there is primarily one issue that divides them: the lack of the Father’s trust in the Mother, both in relation to current or future drug-taking, and in relation to the possible risk to A from his Mother’s long-standing Hepatitis C condition. As I have also indicated above, that is a matter that goes directly to s.60CC(3)(c) & (i), which concerns, as a major consideration, the benefit to the child of having a meaningful relationship with both of the child’s parents.
To reinforce my disquiet, the increasingly corrosive distrust between the parents attracts, in a significant way, other critical sections of the Family Law Act. I am required, by the potent force of the Full Court’s remarks in Goode v Goode, to follow scrupulously “the [prescribed] legislative pathway.” In that case, the Full Court stated: “In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However the legislative pathway must be followed.”[6] Not only are Courts required to follow it but it may reasonably be stated that litigants (and their legal advisers) who fail to pay sufficient attention to the detailed statutory regime do so at their own peril.
[6] Goode v Goode (2007) 36 Fam LR at 445 [82].
The distrust between A’s parents has now, unfortunately, spawned what are, in substance, `tit-for-tat’ orders by each party against the other. The parties have gone from seeking orders essentially for a shared-care arrangement to those which seek either to minimise radically or totally obliterate A’s time with the other parent. Such orders, by both parties, are potentially destructive of any possible rapprochement between them, but even more worryingly, they put at further risk a range of considerations, to which reference has already been made, which this Court must take into account in determining what is in A’s best interests, both on an interim basis, as here, and ultimately, longer term. And as is well known, A’s best interests are, and rightly should be, not only the paramount consideration of this Court, but also of his parents. By and large it is, but it is invariably tainted, in the case of his parents, by the endemic distrust between them.
The distrust between the parties stems from Ms Tilney’s concealment of a history of intermittent drug taking (by which I mean that she took drugs for a period of time, ceased, but at some later time, re-lapsed) and her having contracted, a significant time ago, hepatitis C.
Ms Tilney has readily admitted, indeed confessed, both matters. Equally readily, she admits, indeed also confesses, that it was wrong to take drugs and also to conceal these matters from Mr Liatos. To confirm that she no longer takes drugs, she has submitted to random, chain-of-custody drug testing. That testing is initiated by the Father’s solicitor giving a notification to the Mother’s solicitor. The testing must take place within two hours of the notification being received.
On 18th September 2007 I ordered that Ms Tilney spend time with her son A, supervised by one or both of her parents. That time was to be for four days per week between the hours of 9am and 1pm or 1pm and 5 pm, as agreed between the parties. Prior to making those orders I gave very brief reasons for them. In the course of those reasons I said [at paras. 3 & 4]:
“Dr C deposes to the fact that hepatitis C is not transmittable through ordinary everyday contact, and I read from his affidavit sworn on 7 September the following paragraphs. Para. 8:
Hepatitis C is a condition which is transmitted through contact with the blood of an infected individual and can occur in needle stick injuries, tattoos, sharing syringes, et cetera. It is not sexually transmitted, nor transmitted through social or domestic contact.
I acknowledge readily that this evidence has not been the subject of formal scrutiny by any expert in infectious diseases. Nonetheless, at the moment it is unchallenged medical evidence before this Court and it is also relevant in the light of A's care by his mother and by his maternal grandparents for many months that nothing untoward has occurred that might suggest that he is at any risk. For that reason I do not see as a matter of principle at this stage any reason why A and his mother should be prevented from spending time together supervised by one or both of his maternal grandparents. They have indicated they are ready and able to continue to conduct this supervision.”
What I said then still applies. Professor G Farrell has been appointed as a single expert witness. He is an expert in hepatic medicine. Until Professor Farrell provides the Court with his expert opinion in relation to hepatitis C, the evidence of Dr C stands unchallenged as to the lack (not necessarily absence) of risk posed to the child from his Mother’s hepatitis C condition. The fact that Mr Liatos’s solicitor controls the random regime of drug testing for A's Mother provides a significant protection with respect to Mr Liatos’s concern about any relapse by Ms Tilney into amphetamine drug-taking. Subject to Professor Farrell’s evidence, it is difficult to conceive of what more Ms Tilney can do to confirm to Mr Liatos that she is free of drugs and that her Hepatitis C poses minimal or no risk to her care for A. In these circumstances, and without making a final determination, it is difficult not to conclude that Mr Liatos is motivated, at this time, significantly by his disbelief in Ms Tilney’s capacity to remain free of drugs and that she poses no risk to A in relation to Hepatitis C. This is so notwithstanding the fact that Ms Tilney has cared for A since his birth, and that he was conceived and carried in utero without him contracting hepatitis C. All of that said, Mr Liatos stated in evidence, and presented as a witness, as someone determined to ensure that A did not see or detect that there was anything awry between his Mother and his Father. I accept his assurances in this regard.[7] All of this, in the difficult circumstances of the now embittered relationship of A’s parents, is certainly to Mr Liatos’s credit.
[7] See Transcript of Evidence, (22nd October 2007) p.41.
In the state of the current litigation, and in the light of the available evidence, I am prepared to grant the application made on behalf of Ms Tilney, but not to the full extent advocated by Mr Millar. There is some force in Ms Tonkin’s submission regarding disruption to A’s routine. I should also say that because of the partial success of this application, and conversely the partial success of the resistance to it, as well as my intention to deliver judgment and make final orders at the earliest possible time (which is intended to be before Christmas), I should indicate that I am rather disinclined to entertain any further interim applications at the conclusion of the current hearing.
Accordingly, I make orders set out on page two (2) of this judgment.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Beau Wilson
Date: 7 November 2007