Tobey and Rezek (No.2)
[2010] FMCAfam 1466
•9 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOBEY & REZEK (No.2) | [2010] FMCAfam 1466 |
| FAMILY LAW – Children – parenting – on-going high levels of conflict – need for supervision – need for expert report. |
| Family Law Act1975, ss.60B(1), 60CA, 60CC(2)(b), 60CC(3)(a), (c), (i), 60CC (3)(b)(ii), 60CC(3)(d)(ii), (e), (f), (g) & (i), (j) 60CC(4), 60CC(4A) |
| Goode v Goode (2007) 36 Fam LR 422 Mazorski v Albright (2008) 37 Fam LR 518 McCall & Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 Vasser v Taylor-Black (2008) 37 Fam LR 256 |
| Applicant: | MR TOBEY |
| Respondent: | MS REZEK |
| Intervener: | MS F |
| File Number: | CAC 740 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 17 August 2010 |
| Date of Last Submission: | 17 August 2010 |
| Delivered at: | Canberra |
| Delivered on: | 9 September 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Legal Aid Office (ACT) |
| Solicitors for the Intervener: | Watts McCray McGuiness Eley |
| Independent Children’s Lawyer: | Evans Family Lawyers |
ORDERS
The child [X] born [in] 2005 (‘the child’) live with Mrs F.
The child spend time with the Father:
(a)From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 10th September 2010.
(b)From after school on the last day of term 3 until 4:00pm on the middle Saturday of the school holidays (24th September 2010 to 2nd October 2010).
(c)Changeover be effected at school where possible, and otherwise at [M] unless otherwise agreed.
The child spend time with the Mother:
(a)From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 17th September 2010.
(b)From 4:00pm on the middle Saturday of the term 3 school holidays until the commencement of school in term 4 (2nd October 2010 to 11th October 2010).
(c)Changeover be effected as agreed between the Mother and Mrs F.
The matter be set down for final hearing for 5 days commencing 18th April 2011 at 10:00am in Canberra.
AND IT IS NOTED THAT:
A.The listed dates for trial may be subject to slight variation due to other listing requirements and judicial availability. Any such change will be notified to the parties should this occur.
IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 740 of 2008
| MR TOBEY |
Applicant
And
| MS REZEK |
Respondent
| MS F |
Third Party Intervener
REASONS FOR JUDGMENT
Introduction[1]
[1] This oral judgment has been revised from the transcript.
At the most recent hearing in these proceedings, Mr Tobey represented himself. Formerly, throughout these protracted proceedings he has been legally represented either by solicitors and or by experienced Counsel. Respectfully, subject to one matter that will need to be addressed at an appropriate time and in an appropriate manner, he did so without difficulty and was fulsome in the information and submissions provided to the Court.
In the course of his various submissions he commented that he was not litigious (my word), and that (also in my words) he was simply seeking to enforce his parental rights. It is this latter aspect of “parental rights” which, in my view, will need to be addressed in due course. This is to say that if a party has a primary focus on their ‘parental rights’, rather than the best interests of the child, such a matter will need to be addressed at a final hearing if it has not been possible to be properly addressed beforehand.
In relation to the first part of Mr Tobey’s submission regarding his propensity to litigate, the following facts should be noted. In listing the following matters I readily recognise that it takes two not only to tango but also to litigate.
These proceedings commenced with an application filed on 6th May 2008. Since then (and excluding proceedings in any other court, such as the Local Court, or the Family Court in the context of any appeals), according to the electronic records of this Court (verified further by the four court files that hold the documents filed thus far), there have been 14 separate applications filed (with an attendant, consequential number of responses), 20 court events, and 19 sets of orders made (excluding those made by the Registrar). I make no comment on the number of judgments (of whatever kind) delivered thus far.
The reasons I deliver on this occasion relate again to competing applications from Mr Tobey and Ms Rezek in relation to the time that each of them spends with their young son, 5 year old [X].[2]
[2] For the sake of completeness, in considering these reasons, it is essential to have regard to the background to the current dispute set out in my earlier judgment, Tobey & Rezek [2010] FMCAfam 589, which includes details surrounding the Mother’s hospitalisation on psychiatric grounds, and the consequent intervention by the third party, Mrs F, who is [X]’s sister’s Grandmother.
The Court has the benefit of orders sought by the independent children’s lawyer (“the ICL”), and on behalf of the Chief Executive of the Office for Children, Youth and Family Support (“the Chief Executive”), although the latter is not formally a party to the proceedings. Thus, the Chief Executive’s “orders sought,” strictly speaking, should be considered “suggested orders” from an amicus curiae in the current circumstances.
To speak generally, it may be observed that the orders sought by
Mr Tobey are essentially supported by the ICL, while those sought by Ms Rezek are supported by the Chief Executive, who also offered an alternative proposal subject to the Court’s view.
In the course of proceedings, Ms Burgess, for Ms Rezek, tendered copies of the following documents:
(a)Psychiatric Treatment Order (concerning Ms Rezek) from the ACT Civil and Administrative Tribunal: 10th June 2010
(b)Letter from Dr T: 12th August 2010
(c)Letter from Dr L: 3rd August 2010
(d)Letter from Dr M (from ACT Health – Psychiatric Services Unit): 3rd August 2010
(e)Interim Domestic Violence Order issued against Mr Tobey: 5th August 2010[3]
[3] Also tendered was an email from [G]/Supervision to Ms Rezek, dated 17th August 2010, which set out various details of attempts by that agency to have [X] spend time with his Father.
Unless revoked earlier, the Psychiatric Treatment Order has effect for six months.
The letters from the three doctors mentioned all attest to Ms Rezek’s current good health and, in the cases of Dr T and Dr M, both of whom are psychiatrists, that she is able to look after herself and her son.[4] This confirmation from these medical practitioners is significant, not least because Mr Tobey continues to insist that he has concerns about the Mother’s capacity to care for [X] when he is with her. I note that
Mr Tobey’s area of medical expertise is gastroenterology, not psychiatry.
[4] Dr T said: “Ms Rezek is not manic and is NOT a danger to herself or to her son [X]. She continues to see me regularly.” Emphasis in original. Dr M, from the Psychiatric Services Unit at The [omitted] Hospital stated in her letter: “[Ms Rezek] was well at the time of discharge and at that time I believed that she was well enough for her son to spend extended periods of time with her and for him to stay overnight. She returned for review today [3rd August 2010]. She has remained well since discharge and I have no reservation as to her ability to resume her regular care for her son [X].” Ms Rezek was under Dr M’s care while she was a patient at The [omitted] Hospital between 1st June and 23rd July 2010. Dr L is Ms Rezek’s GP.
For the record, each of the various orders sought or recommended should be taken as being incorporated into these reasons. For ease of reference I set them out below.[5]
[5] Unsurprisingly, Mr Tobey sought orders which provided that he have sole parental responsibility for [X]. Because of the unusual circumstances of this matter, and not simply because of the extremely high level of conflict, in my view, (a) the presumption of equal shared parental responsibility, pursuant to s.61DA of the Act, should not apply, and (b) until the expert’s report is available, no such order should be made.
Father’s Orders sought
1. That all previous Orders in relation to [X] be discharged.
2. That the child live with the father.
3. That the child spend supervised time with the mother at the home of Ms F from after school each Monday until the start of school each Tuesday.
4. For the purposes of Order 3, that Ms F facilitate all change overs at the [A] School.
5. That Ms F provide an undertaking to the Court in relation to the conduct of the supervision of the mother’s time with the child.
6. That each party is restrained from denigrating or causing another person to denigrate the other parties in the presence or hearing of the child.
7. That the parties agree to the engagement of a counsellor for the purpose of assessment and therapy for the child with the aim of implementing support for the child in the form of a teacher’s aid.
8. For the purposes of Order 7 the psychologist to be appointed in the first incidence is Ms H, with the Father to initially liaise and facilitate such support with [A] School.
Mother’s Orders sought
Preferred Orders:
1. That the orders made on 28 August 2009 relating to the child [X] born [in] 2005 continue to be suspended.
2. That all subsequent orders about the arrangements for the child be discharged.
3. That the child live with Ms F.
4. That the child spend time with the father, supervised by [G], from noon until 4pm each Saturday, and from after school to 7pm each Wednesday and that the father be responsible for the cost of such supervision.
5. That the father arrange for changeover to be effected by [G] on each occasion.
6. That the child spend time with the mother, supervised by Ms F, at times suitable to Ms F, but not exceeding the number of hours the child spends with the father.
7. That Dr W or Dr S be appointed as a single expert and that the Independent children’s lawyer arrange, in consultation with the other parties, the terms of reference for the Expert, and the appointment dates.
Alternate Orders #1:
In the event the Court does not consider there to be a need for supervision:
8. That the child live with Ms F.
9. That the child spend time with the father:
(a) from after school on Friday until 4pm Sunday each alternate weekend commencing on Friday 20 August 2010.
(b) from after school on the last day of term 3 until 4pm on the middle Saturday of the school holidays (24 September to 2 October).
(c) That changeover be effected at school where possible, and otherwise at [M] unless otherwise agreed.
10. That the child spend time with the mother:
(a) from after school on Friday until 4pm Sunday each alternate weekend commencing on Friday 27 August 2010.
(b) from 4pm on the mid Saturday of the term 3 holidays until the commencement of school in term 4 (2 October to 11 October)
(c) That changeover be effected as agreed between the mother and Ms F.
Alternative Orders #2
In the event the Court is minded to make interim orders providing for the child to live with the father:
11. That the child spend time with the mother:
(a) From after school each Wednesday until before school on Thursday each week.
(b) From after school on Friday until before school on Monday each alternate weekend commencing on Friday 27 August 2010.
(c) From 4pm on 2 October until before school on 11 October.
12. That changeover be effected by the relevant parent collecting the child from school, or [M] if available. If the child is not at school and [M] is not available, then the parent who has the child will deliver him to Ms F at the relevant time, then leave her premises and not be within 2km of her house until the changeover is effected. The parent who is due to receive the child will attend upon that residence 30 minutes after the time for changeover.
Intervener’s Orders sought
That until further Order:
1. The child [X] born [in] 2005, live with Mrs F.
2. [X] spend regular and equal amounts of time with each of his parents, with the details of such arrangements to be determined by the Court.
3. In respect of the child’s time with each of his parents, changeovers should occur at [X]’s school or otherwise in such a way so as to ensure that Mr Tobey and Ms Rezek do not come into contact with one another.
4. Any further orders as determined by the Court.
Orders sought by the Independent Children’s Lawyer
1. That the child [X] born [in] 2005, live with the father.
2. That the father will have sole parental responsibility for the child.
3. That pending the release of the Part 15 Expert’s Report the mother spend time with the child as follows:
(a) Supervised at the [M] Child and Family Centre at such times as can be arranged with the centre; or
(b) Supervised by the Interveners (the F’s) as follows:
(i) From after school Monday until the commencement of school Wednesday in each week.
4. For the purposes of the mother’s time with the child pursuant to Order 3b the Interveners will be present during all periods of time the mother spends with the child.
5. For the purposes of the mother’s time with the child pursuant to Order 3a the father will collect and deliver the child to and from the [M] Child and Family Centre.
6. For the purposes of the mother’s time pursuant to Order 3b the child will be collected and returned to and from school by the Interveners, and if not an ordinary school day as follows:
(a) At the [M] Child and Family Centre, if available;
(b) At the ticket office of [omitted] Cinemas, Canberra, and if failing agreement;
(c)With the Interveners to collect and return the child to and from the father’s residential premises.
7. That pursuant to Part 15 of the Federal Magistrates Court Rules that Dr S or Dr W be appointed to prepare a psychiatric report in relation to the parties and the child in the following terms:
(a)With the Independent Children’s Lawyer to submit to the Court Terms of Reference with respect to the appointment within 14 days of the date of these Orders.
(b) With the cost of the report to be shared equally between all parties (the mother, father, the interveners and the Independent Children’s Lawyer) subject to the Independent Children’s Lawyer being able to secure funding from the ACT Legal Aid Office with respect to the Independent Children’s Lawyer’s ¼ share of the cost of the report.
(c) That the Expert be provided documents filed in the proceedings and copies of all subpoenaed material as agreed between the parties or as determined by the Independent Children’s Lawyer including release of Ms H’s Part 15 Expert Report and the report of the Family Consultant.
8. That the proceedings be listed for a further interim hearing upon the release of the Part 15 Expert’s Report for further determination of interim parenting arrangements pending final hearing.
NOTATION
(A) It is intended that the time spent between [X] and his mother pursuant to Order 3 will also include [X] being able to spend time with his sister [Y].
(B) Nothing in these Orders prevents any party from arranging additional time for [X] to spend with his sister [Y], as may be agreed between the parties.
Orders sought by the Chief Executive of the Office for Children, Youth and Family Support
1. The Chief Executive does not wish to be joined as a party.
2. The Chief Executive based on the information it has presently, does not believe it necessary to take action on the ACT Children’s Court.
3. Although we do not wish to be a party, the Chief Executive’s view is that [X] should remain with his current carers until the assessment has been finalised. However the Chief Executive would not oppose [X] being placed with either parent, if deemed in his best interest by the Court.
For the sake of completeness, I note that, although final hearing dates were originally fixed for April 2011, a five day hearing has now been allocated, commencing on 23rd May 2011, to deal with property and parenting matters.
Legal principle
The jurisprudential framework for these reasons should be taken to be Brown J’s “twin pillars” remarks in Mazorski v Albright where her Honour conveniently set out a summary of principle in relation to relevant parts of Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[6]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[6] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments have been endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
For the purposes of the objects and principles, and primary considerations, respectively set out in s.60B(1) and s.60CC(2), I rely also upon her Honour’s comments in Mazorski v Albright, at [20] – [26], as to what is and what is not “a meaningful relationship”. I set out below those paragraphs, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[7]
[7] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration
Following Ms Rezek’s sudden hospitalisation in late May, I made orders on 4th June, which provided for [X] to live 9 nights per fortnight with his Father and 5 nights with his sister’s Grandmother, Mrs F. As already noted, my reasons for these orders were later published. I will not repeat what is set out there at some length and with some particularity.
Further orders were made, by consent, on 6th August.
More recently still, because I was on circuit in Wagga Wagga in the second week in August, two separate, urgent applications were determined by FM Brewster. Thus, property orders were made by his Honour on 11th August; and further parenting orders were made by his Honour on 12th August.[8] The Chief Executive of the Office for Children, Youth and Family Support appeared before his Honour on 12th August.
[8]In the light of the events that led to the proceedings in the Local Magistrates Court and their subsequent ventilation before FM Brewster, his Honour’s orders relevantly provided that, until further order, [X] should live with Mrs F and that neither parent should spend time with [X] until the adjourned date of 17th August. On that date, I continued those orders.
The issue before the Court, therefore, in accordance with s.60CA of the Act, is what orders to make in the current circumstances that are in [X]’s best interests.
There remains a very high level of conflict between [X]’s parents. I have observed often enough that he has been embroiled in his parents’ highly conflictual relationship for more than half his young life. Mrs F, [X]’s sister [Y]’s [paternal] Grandmother, provides something of a refuge from that conflict and certainly provides a regular opportunity for [X] and [Y] to spend substantial time together. In my view, as I have said in an earlier judgment, that remains a very significant consideration.[9]
[9] Cf. s.60CC(3)(b)(ii).
But the problem remains: how to ensure that [X] spends appropriate time with both of his parents in such a way that protects him from the on-going contest between his parents and the risks associated with it, and which otherwise meets the demands of s.60B(1) and (2), and s.60CC(2) with respect to [X] having a meaningful relationship with both parents and them having a meaningful involvement in his life.
I should also note that, following an inquiry from one of the parties, my Chambers indicated that, prior to the making of orders and the delivery of these reasons, it would be appropriate for [X] to spend time with his parents, pursuant to the ICL assisting in the negotiation of when, where, how and the duration of that time.
For the sake of completeness, I should also mention that the Orders made on 4th June provided, among other things, for the appointment of an expert pursuant to Part 15 of this Court’s Rules.
In my view, the report from that expert is critical to the ultimate determination of appropriate parenting orders by this Court. While no such expert has yet been retained, the ICL has been requested, in consultation with the parties, to retain that expert as expeditiously as possible. That expert should be provided with all previous reports that are on the Court file, e.g. those from all Court-appointed consultants, such as Ms M, Ms H, and the more recent reports from Ms W. The reports from Dr C and Dr E, which have been secured privately by the parties but provided to the Court, should also be provided to the Part 15 expert.
Jurisprudentially, in my view, the basic principles to deal with the current matter are to be drawn as much from the overview provided by Brown J in Mazorski v Albright to which I have referred, as well as, to an appropriate degree, from the Full Court judgment in Vasser v Taylor-Black.[10] For the purposes of this case, I note that, at [49] the Full Court stated (emphasis added):
It appears to us that by failing to grant the adjournment his Honour deprived himself of the opportunity to have the best available evidence to determine this young child’s best interests. We note a short adjournment would have also permitted an independent children’s lawyer to be appointed, whose enquiries and submissions would no doubt have been very relevant to the orders to be made.
[10] (2008) 37 Fam LR 256.
While no adjournment application is before the Court in this matter, from this latter case I seek to draw, for the benefit of the Court and for the parties, and especially for the child’s best interests, the singular importance of having the benefit of the best evidence available to it before making any significant parenting orders. That “best evidence” will come from the expert’s report in the not too distant future. From this also follows what might be described, as part of a general precautionary principle, that in the absence of that report, the Court should proceed cautiously so as not to make too many changes in [X]’s already long-running, rather turbulent life as he continues to be embroiled in the ceaseless conflict between his parents.[11]
[11] In making these comments, among other provisions I have in mind s.60CC(3)(d). For my part, I might also mention that, notwithstanding the plethora of issues about which the parties have regularly fought, I do not recall there ever being any issue in relation to matters of practical difficulty and expense as contemplated by s.60CC(3)(e). And, notwithstanding Mr Tobey’s regular questioning of Ms Rezek’s capacity to care for [X], at this stage of the proceedings I do not understand there to have been any matters raised formally that would go to the Court’s consideration of s.60CC(3)(f) & (g).
On the basis of that precautionary principle, which militates against major change in [X]’s life – particularly his living situation – in my view it is in [X]’s best interests to continue to live with Mrs F. As I have previously mentioned, her relationship with [X] and [Y], and the reasons for her involvement therein, are set out in my judgment of
4th June 2010. I need not, and will not, repeat what was previously said there.
Having indicated that [X] should continue to live with his sister’s Grandmother, which will continue to enable [X] and [Y] to spend significant amounts of time together and thereby importantly to provide something of a ‘conflict-free’ zone (if not refuge) in his life, in my view it is also important for two other things to occur: (a) [X] should be able to spend as much time with both of his parents as possible, and (b) the parties should not come into contact with each other at all. So: how to balance all of these considerations and make orders that are in [X]’s best interests?[12]
[12] Clearly, given his age, s.60CC(3)(a) has no work to do in this case.
Indeed, in continuing the orders that involve [X] living with his sister’s Grandmother, the safe haven which that household provides should properly be seen as protecting [X], to some degree at least, from the risk of psychological harm which s.60CC(2)(b) enjoins.
That risk of harm stems from the unrequited and bitter contest between his parents, in consequence of which neither party, on long-running evidence, has much willingness or capacity to promote [X]’s relationship with the other parent.[13]
[13] See s.60CC(3)(c) & (i).
Remarkably, notwithstanding the parental war, thus far [X] seems still to have a good relationship with both parents.[14]
[14] Cf. s.60CC(3)(b)(i).
As for the other building blocks that make up the prescribed legislative pathway, I have made various comments already which, I hope, have dealt with such matters about which the Court can and should comment, and those matters about which no findings can or should be made at this stage.[15]
[15] See Goode v Goode (2007) 36 Fam LR 422 at p.445 [82(d), (i) & (j)].
In relation to the time that [X] spends with his parents, in my view,
Ms Rezek’s orders sought, styled “Alternate Orders #1” should apply.[16] Although set out earlier in these reasons, for ease of reference I set them out again here. In my view, they are in [X]’s best interests at this time.
[16] Methinks that they should be styled “alternative orders” – but that is a point of grammar. The identification of the orders is the most important thing.
In the event the Court does not consider there to be a need for supervision:
1. That the child live with Ms F.
2. That the child spend time with the father:
(a) from after school on Friday until 4pm Sunday each alternate weekend commencing on Friday 20 August 2010.
(b) from after school on the last day of term 3 until 4pm on the middle Saturday of the school holidays (24 September to 2 October).
(c) That changeover be effected at school where possible, and otherwise at [M] unless otherwise agreed.
3. That the child spend time with the mother:
(a) from after school on Friday until 4pm Sunday each alternate weekend commencing on Friday 27 August 2010.
(b) from 4pm on the mid Saturday of the term 3 holidays until the commencement of school in term 4 (2 October to 11 October)
(c) That changeover be effected as agreed between the mother and Ms F.
I should say something however on the subject of “supervision.” While everyone waits with varying degrees of patience for the expert’s report, and any other relevant medical records, there remain competing allegations about and against both of [X]’s parents. While disinclined to make any orders in relation to supervision, in a formal way, it seems to me that, to the degree that it is possible, a “third party” should regularly be present when [X] spends time with each of his parents. This suggestion is predicated upon (a) the benefit of support to the parent, as well as (b) the precautionary monitoring of the time with [X], and (c) the capacity (even indirectly by their presence) to dissuade “the other parent” from even attempting to interfere with [X]’s time with the parent whose time it is with [X].
To speak somewhat colloquially, perhaps the role of “minder” is what I have in view by this suggestion.
Conclusion
Having regularly attempted to negotiate the prescribed legislative pathway[17] on previous occasions in this matter (which should not be taken as reflecting the said path to be tiresome, still less, otiose, in the current circumstances), and because [X] will be remaining with Mrs F, in the light of what has been addressed in these reasons, in my view, nothing further should be said about navigating that precarious process. Simple or ongoing familiarity with long-running proceedings, such as here, where there have been multiple applications to which the Court has attended, does not obviate the need to attend to principle.
[17] Cf. the Full Court’s discussion of the ‘legislative pathway’ in Goode v Goode (2007) 36 Fam LR 422 at [81] & [82].
That said, for all of the familiarity I have with the protagonists and the regularly changing factual landscape that gives context and often vivid colour to each application, as I have already said, until the Court has the benefit of the expert report, and a final hearing is conducted, there remain significant obstacles to the Court being able to make many or any relevant findings.[18]
[18] Cf. Goode 36 Fam LR at [74] and [82(d)].
It may be that in proceedings where there are multiple applications, and where a court regularly conducts an inquiry in accordance with legislative and judicial principle, in the absence of significant changes between applications, the court may be able to rely upon the path already well-trod. In such cases and circumstances, subject to direction (or anything else) from higher authority, in my respectful view the prescribed “pathway” need not be completely [re-]negotiated on each and every occasion when a new application is visited upon the court.
Finally and to repeat: the sooner the expert’s report can be obtained, the sooner this matter will be able to be resolved – either through negotiation, or judicial determination next May.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 17th December 2010
I understand from the parties that there were also urgent proceedings in the Local Magistrates Court involving Mr Tobey, but which have been resolved without any convictions being recorded. As I understand it, it was events surrounding those Local Court matters that led, in part, to the urgent applications that were heard by FM Brewster to which I have referred. See the discussion, primarily with Mr Tobey, at Transcript (17th August 2010) pp.4-11. Among many things canvassed by
Mr Tobey, he confirmed that he had damaged a door at the Mother’s residence and that he had been arrested. He informed the Court that although charged and the offence relating to damage to property established, no conviction was recorded. This matter may have to be considered in more detail at some stage in the context of provisions such as s.60CC(3)(j) and s.60CC(4A).
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