Truman and Truman

[2007] FamCA 435

FAMILY COURT OF AUSTRALIA

TRUMAN & TRUMAN [2007] FamCA 435

FAMILY LAW - Children – Interim parenting orders

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT:	Mr Truman
RESPONDENT:	Mrs Truman
FILE NUMBER:	SYF	4438	of	2006
DATE DELIVERED:	16 April 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATE:	16 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr P Batey
SOLICITOR FOR THE APPLICANT:	Barkus Edwards Doolan
COUNSEL FOR THE RESPONDENT:	Mr G Gould
SOLICITOR FOR THE RESPONDENT:	Michael Conley Lawyers

Orders

Procedural orders

1. That the time for the filing of any appeal against orders made during the course of the hearing, as prescribed by the Rules of Court not commence to run until the making of the final order in the proceedings or such other time as the Court may order.

1. That each party during the hearing make full and frank disclosure of any fact which should be brought to the attention of the Court having regard to the best interests of a child the subject of the proceedings.

1. That no further application or response be filed by a party to the proceedings without leave of the Court.

1. That any order requiring service of any document during the hearing, unless otherwise directed, will require service pursuant to the Rules of Court.

1. That no party issue a subpoena in the case without first obtaining leave of the Court.

1. That all parties inspect all documents produced on subpoena no later than 4 working days prior to any further hearing date.

Re-listing of proceedings

1. That the legal representatives for the parties shall ensure the case co-ordinator is advised of any event or circumstance which is likely to seriously impact upon the timely progress of these proceedings through the Court.

1. That the proceedings be listed for directions before me at 9.30am on Thursday, 31 May 2007

Interim parenting orders

1. That the two children of the parties’ relationship the elder daughter born in June 1998 and younger daughter born in March 2001 (“the two children”) live with the mother other than for the periods of time they spend with the father in accordance with the orders made this day.

1. That the two children spend time with each of the parties during the following school holiday periods:

   (a)      With the father for the period 16 April 2007 to 4.00pm 21 April 2007.

   (b)With the mother for the period from 4.00pm 21 April 2007 to 4.00pm 23 April 2007.

   (c)      With the father from 4.00pm 23 April 2007 to 4.00pm 26 April 2007.

2. That in relation to all subsequent school holiday periods, they be in three (3) day blocks with each party, the first three (3) days with the father PROVIDED THAT the two children return to the care of the mother by 9.00am on the last Saturday prior to commencement of the new school term.

1. That the father have following periods of time spent by the two children with him during school term:

   (a)Each alternative weekend from conclusion of school on Friday to the commencement of school on Monday, the first of such occasions to take place on Friday, 4 May 2007 concluding on 7 May 2007.

   (b)Each Tuesday from the conclusion of school overnight to the commencement of school the next day, the first of such occasions to take place on 1 May 2007.

1. That the parties obtain recommendation from Ms R, psychologist for the purpose of consulting a psychologist to improve their relationship and the quality of communication between them and that such consultation take place on or before 23 April 2007.

1. That the parties attend upon Ms T, family consultant during the week commencing 31 May 2007 (prior to 9.30am on the scheduled day) for the purpose of reviewing the child related issues and their own ability to communicate in a constructive and beneficial fashion so far as the two children are concerned.

1. That each of the parties is restrained from making any denigrating comments about the other to or in the presence or hearing of the two children or either of them.

1. Costs reserved.

NOTATION:

A.The parties engaged in a reportable counselling session today with the Court’s family consultant, Ms T.  The family consultant provided an oral report in relation to the reportable counselling session.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF4438 of 2006

MR TRUMAN

Applicant

And

MS TRUMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties seeks interim parenting orders whilst the final hearing, which followed the “Less Adversarial Trial” procedure, remains part heard.

2. The orders sought by the father are for school holiday periods to be shared between the parties equally, and that otherwise during school term the two children live with each of the parties on alternate weeks or, as the father explained during his evidence today, perhaps for alternate periods of five days.

3. The mother opposes the orders sought by the father.

4. The mother made it clear during the course of her evidence that the orders she seeks are to reflect the current regime which in school term is that the two children spend time with the father for alternate weekends from Friday after school until commencement of school on the following Monday, as well as for Tuesday overnight in each week.

5. The mother also gave evidence of an arrangement, albeit not necessarily enthusiastically accepted by the father, that during the last school holiday period the children spent alternate three day periods with each of the parties to ensure that the children spent time with and were cared for by each parent on a more frequent basis than would be the situation if there was a week between each parental care.  That was due to what seemed to be her perception of the two children needing to have the physical and emotional care that each parent can provide on a relatively frequent basis.

6. On the issue of equal shared parental responsibility, there did not appear to be any controversy.  Indeed, the questionnaires referred to the search for other schools in which the parties quite clearly have been co-operating for the benefit of the two children.

Historical background

1. The background briefly in these proceedings is as follows.

2. The parties commenced to cohabit in or about 1985 or 1986.

3. They married in February 1987.

4. The father is 46 years of age and is a company director.

5. The mother is 45 years of age and engaged in home duties.

6. The two children of the marriage are:

   (a)The elder daughter, 8 years of age, having been born in June 1998;  and

   (b)The younger daughter, 6 years of age, having been born in March 2001.

7. The father contends the parties separated in about mid-2005.

8. The mother asserts that separation took place in January 2006.

9. For the purpose of the interim orders sought by each party it is not significant for me to resolve that particular issue.

10. The father lives in B.

11. The mother lives in T.

12. On 23 January 2007 orders were made by consent by way of interim parenting orders.  Those orders provided for, amongst other things, equal shared parental responsibility, that the two children live with each of the parties in alternate weeks, and school holiday periods be spent by the two children with each parent on a similar basis.  There were other orders made.

Issues

1. Today the matter proceeded on the basis of the parties being informed that the documentation which had been read by me were their respective applications and responses, as well as the questionnaires which became Exhibit 1 in the proceedings.  The remaining evidence comprised oral evidence given by each party from the Bar Table, supplemented by expert evidence given by Ms T (“the family consultant”), a well qualified and experienced family consultant.

2. I provided a short adjournment to enable the parties to engage in a mediation session with the family consultant.

3. Each of the parties had previously informed me through their counsel that they were willing to take part in such a session.

4. It seemed to me at the time that this would be a worthwhile use of court time as each of the parties emphasised a number of significant aspects on which they were in agreement.

5. There was no dispute as to the loving relationship that each of the two children had with each of the parties, nor that the parties themselves had a devoted parental attitude to each of the two children.

6. I extended the period of the adjournment as the information I had received from the court officer was that further time was sought.

7. Following the resumption of the hearing before me, the family consultant’s oral report on the counselling session was that the parties had agreed on a number of issues and were “close to an interim agreement”.

8. However, from the family consultant’s viewpoint the underlying causes of continued conflict between the parties appeared to be on personal issues which the parties had yet to resolve between themselves and which raised areas of conflict which unfortunately then impacted upon the two children.

9. The result was that it appeared that on an interim basis there was one night only upon which each of the parties could not agree.

10. Following submissions made by counsel, it appeared that the range of possible issues had either increased since the parties last saw the family consultant today, or alternatively those issues were managed to a lower level of intensity in the hope that agreement might be reached between the parties, at least on an interim basis.

11. Whatever the reasons, it was the family consultant’s evidence that the parties need to resolve their own parental conflict, which was the critical issue, and that in that regard they should seek professional assistance.

12. The family consultant agreed with counsel for the husband that frequency of changeovers may increase conflict.  However, the family consultant indicated that there are a number of other matters which she would have to take into account, including the location for change-over, the fact that she had not as yet seen the two children, assessing matters of attachment, and no doubt other matters that are required to be considered under the Act.  Time did not permit that to occur.  Indeed, the expectation in that regard would not have been for a lengthy assessment with the two children to occur on the first day of this trial.

13. Counsel for the father emphasised to me that the issue of equal time “fits in with the Act”, and is in accordance with the “spirit of the Act”.  I accept his first submission.  I do not accept the second submission.

14. Quite clearly, the question of equal time is an important consideration that I must carry out, especially when equal shared parental responsibility is to be the subject of an order.

15. So far as the “spirit of the Act” is concerned, with respect to counsel I do not agree. For many years this Court has been required by the appropriate provisions of the Family Law Act to only make parenting orders provided it is in the best interests of the child, and that is the paramount consideration.

16. Section 60CA of the Act continues that mandatory requirement.  It is the “best interests of the child” which is truly the spirit of the Act, and not some other approach which might conveniently fit in with one party’s case or another.  That is the approach I will apply.

17. As the recent Full Court decision in Goode and Goode[1] makes clear there is no distinction to be drawn so far as interim orders are concerned, and the appropriate provisions of the Act must still be applied whether they are proceedings for interim parenting orders or final parenting orders.

    [1] Goode and Goode (2006) FLC 93-286

18. In this matter the hearing so far as interim orders are concerned necessarily follows a truncated procedure.  That procedure has been in force in this Court for many years, and is no doubt well known to the legal representatives of each of the parties.

19. That procedure requires me to consider the evidence that is before me.  Usually, it is on the Papers, and in this case supplemented by oral evidence that each of the parties gave, and then followed by submissions of counsel for each of them.

20. Once equal shared parental responsibility is applied, I am then required to consider, as opposed to there being a presumption, the issue of equal time which a child might spend with each parent.

21. In this particular matter, the parties had such an arrangement which occurred during the year 2006.  That arrangement appeared to have been unilaterally changed by the mother.  The mother’s reasons for doing that were essentially because of concerns regarding the emotional and perhaps physical state of the eldest child, and no doubt taking into account the fact that both children, with the consent of the parties, were consulting a psychologist to provide professional support.

22. The mother’s evidence is that once the arrangements were changed to each alternate weekend and each Tuesday overnight, the eldest child appeared to become a more settled child who was inferentially having less complaints of the type that she was previously expressing.

23. Whether the past arrangements should have been changed or not, the fact simply is that it was changed and has been in operation now since early this year.  Consequently, that is a matter I have to take into account.

24. In addition, the two children are still consulting a psychologist.

25. Whilst it is obviously commendable that the parties joined together to ensure that the two children have professional support in the difficult circumstances of two parents who they love now being separated, it is concerning that there still appears to be a reasonable need for two young children to continue to consult a psychologist when one might have hoped that by now the parties were able to apply a fully co-operative and responsible relationship with improved communication to lessen the tension and pressure which perhaps these two children have been experiencing.

26. I have no evidence at this stage from an expert as to the two children’s adjustment to the separation of the parties.

27. No evidence was given by the psychologist who they have consulted.  I have not seen any reports from the psychologist.

28. The evidence of both parties is that the two children are two lovely young girls to whom each party is devoted.

Conclusion

1. It should be obvious that the quality of the care is the most important matter, rather than counting the number of days or nights, as if it was a competition, that each parent should have with one child or the other.

2. In those circumstances, I am more inclined to minimise risk and disruption to the two children, rather than create yet another situation of a new routine for these two children which in turn might change again at the time of the conclusion of this hearing, if not earlier.

3. There is no doubt that each of the two children, from what the parties tell me, have a loving relationship with each of them.  That is very much to the credit of each party.

4. The father emphasised to me that stability and routine are important matters so far as the two children are concerned.  The mother does not disagree with that.

5. Their routine for some considerable time this year has been to spend alternate weekends with him and overnight during the week in school term.

6. Consequently, I am not minded to make interim orders that create a new routine and regime, albeit that it took the place of equal time with each party.

7. I am required under the Act to also consider substantial and significant time to be spent, being days that fall on weekends and holidays as well as days that are not in those periods.  Those days should be such which would enable a parent to be involved in a child’s daily routine and activities that are of particular significance to the child.

8. All of these matters must not be seen in a vacuum.  They are all subject to the one overriding requirement, and that is that the best interests of the child is the paramount consideration.

9. It is not a question of counting the number of days and times which might add up to “substantial and significant time”.  It is obvious from the evidence given by each of the parties today that the two children have been able to spend days with each of them on weekends and holidays, as well as for other periods.  The other periods have been occasions during the week in school term.

10. The real issue is to what extent those days should be extended on an interim basis.

11. The father referred to the number of extra-curricular activities that the two children are engaged in.  He has applied, and no doubt will continue to apply, himself in their best interests to ensure that those activities continue and he will be present during such occasions as well as providing care for them when those activities have concluded.

12. I must also consider the weight that I should give to the current arrangements and past arrangements.

13. The past arrangements in terms of 2006 on the evidence of the mother, which I accept, is that the two children have at times missed her and needed the benefit of more frequent periods of time with her and inferentially also with the father.

14. The fact that the two children continued to see a psychologist during last year, given that it is hard to imagine that two responsible parents would be wanting their children to see a psychologist unless it was considered of reasonable benefit, would implicitly demonstrate that there were emotional issues with which the two children still needed to cope with professional assistance.

15. The evidence of the mother, albeit untested, is that there has been some improvement, and especially so far as the eldest child is concerned.

16. The father for his part does not point to any real disadvantage, in terms of the best interests of the children, with the current regime on an interim basis other than his understandable need and desire to be more involved with them rather than having a feeling of being marginalised.

17. However, as I emphasised to both the parties when this hearing commenced, I am required to make orders that are in the best interests of the children, not the best interests of parents.  That does not mean that their interests are lacking in importance, quite to the contrary.  However, on the limited evidence before me my emphasis nonetheless must be upon the two children’s best interests.

18. Currently, they are used to a particular routine and stability during school term.

19. That is the approach which I intend to continue on an interim basis.  I do so because on one view of the evidence they have continued to be actively engaged without difficulty in school and extra-curricular activities.

20. On the mother’s evidence, which I accept at this stage, the eldest child is showing less symptoms of emotional distress or pressure than was previously the case.

21. The father for his part has obviously devoted himself in the care of the two children when they are with him.  He does not point to any problems that the two children have been experiencing in that regard.  The two children are still consulting a psychologist.  I would be loathe to interrupt current arrangements which might unwittingly set back the progress that the two children might be making with the psychologist without having received any expert evidence from her.

22. One must not lose sight of the fact that these are interim orders only.

23. Consequently, the extent of parental care that might be the subject of final orders is an entirely different matter.

24. School holidays raised itself as a controversy.

25. There is lack of agreement as to the parties’ arrangements for the current school holidays.

26. In addition, it seems that the father had proposed or actually made arrangements for a particular weekend activity with horses on the weekend following the children returning to school on 26 April 2007, but as a symptom of the lack of quality communication between them the parties had not discussed such arrangements.

27. In my view, there is a lot to be said for the submission that the two children spend more frequent periods of time with each party during school holidays, even if that means that they are in blocks of three days rather than longer periods.

1. The father no doubt considers that as the mother had a longer period of time than him therefore he should also have a longer period.  The background to why those arrangements came about is also fraught with controversy.

2. I must return, however, to the focus on the two children rather than seeking to right the wrongs of miscommunication, resentments and calculations to the last day of each period that a child has spent with a party.

3. To become immersed in such calculations is only to serve to distract from the true purpose of the proceedings which is what is in the best interests of the two children on the evidence before me.

4. Accordingly, I propose to make orders for the current school holidays and for future school holidays on a three day turnaround until further order.

5. The parties were prepared to seek professional assistance to help them resolve their own conflict which clearly must be impacting upon two young children, and to improve the quality of communication between them.

6. Their respective counsel have informed me they will consult a psychologist recommended by Ms R, who is the psychologist that the two children consult.  I will make appropriate orders.

7. I will also make orders requiring the parties to further attend upon the family consultant at the earliest available date and time in the week commencing 28 May 2007 with a view to the matter being listed before me at 9.30 am on 31 May 2007 for further directions including the possibility of the order of a family report in the event that the parties have not either resolved all issues or most of the significant issues that still separate them.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  16 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TRUMAN & TRUMAN