Tup and Tao

[2007] FamCA 1675

FAMILY COURT OF AUSTRALIA

TUP & TAO [2007] FamCA 1675

FAMILY LAW – CHILDREN – With whom a child spends time – Orders made

Family Law Act 1975 (Cth)

APPLICANT: Ms Tup

RESPONDENT: Mr Tao

FILE NUMBER: MLC 12698 of 2007

DATE DELIVERED: 18 April 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 18 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H. Dellidis

SOLICITOR FOR THE APPLICANT: Moores Legal

COUNSEL FOR THE RESPONDENT: Ms M.L. Smallwood

SOLICITOR FOR THE RESPONDENT: Mason Sier Turnbull

Orders

1. That the interim children’s orders made on 28 February 2008 shall be discharged.

2. That until further order the children D born … March 1999 and N born … April 2001 shall live with the wife.

3. That until further order the husband shall spend time with the children as follows:

   (a)Each alternate week-end from the end of school Thursday to the start of school Monday, commencing Thursday 24 April 2008;

   (b)For one half of all term school holidays as agreed between the parties, in default of agreement for the first half;

   (c)For three hours on each of the children’s birthdays and the father’s birthday at times to be agreed;

   (d)From 10.00am until 5.00pm on Father's Day;

   (e)The husband’s time with the children shall be suspended from 10.00am until 5.00pm on Mother's Day and for 3 hours on the mother’s birthday and the children’s birthdays in the event any of these occasions occur during times when the children would otherwise be with the husband pursuant to these orders; and

   (f)Any other time, including Christmas and the long summer school holidays as may be agreed between the parties.

4. That the wife’s and the husband’s applications for sole use of the former matrimonial home shall be adjourned to the Interim Hearing List at 10.00am on 10 June 2008.

5. That my reasons for judgment given this day shall be transcribed and placed on the court file.

6. That all questions of costs of this day shall be reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 12698 of 2007

MS TUP

Applicant

And

MR TAO

Respondent

REASONS FOR JUDGMENT

1. This is about two young boys, D aged nine and N aged seven.  Their parents separated in the latter part of 2007.  Some issues in relation to their care were determined by agreement on 28 February 2008. 

2. The first issue before me today is whether or not that precluded me from revisiting the issue of the children’s interim arrangements.  There was enough ambiguity as to whether or not the orders were meant to determine the interim aspects once and for all so that I decided the children's best interests dictated that I should allow those issues to be revisited. 

3. There is another issue that was adjourned until today and that is about the sole use and occupation of the former matrimonial home.  That aspect, subject to counsel’s submissions, will need to be considered in terms of how we arrange the hearing. 

4. Since the parties separated, the children have continued to live with their mother.  There is a huge gulf between the parents’ accounts as to what has happened since then.  In shortest form the father says the mother has precluded him from having proper time with the children.  The mother says that the father has not bothered to see them. 

5. Since the orders of 28 February providing that the children spend from Thursday to Monday in each alternate weekend with the father, the children have barely seen him.  Again, the mother's account is that he has not bothered.  His account is that the mother has not permitted it.  I note that yesterday he had one of the children overnight, but otherwise he was overseas for the period 13 March to 24 March.  It means that on the weekends of 6 March and 3 April he did not spend time with the children and the parents maintain their opposing versions as to the reason, but otherwise there has not in fact been an opportunity.

6. The best interests test is ultimately what I need to apply in an interim hearing, just as I would in a final hearing.  There is a range of considerations for me set out in the Family Law Act, the primary ones being the children's right to have a meaningful relationship with each parent, and also the risks to the children in terms of their physical and emotional well-being. 

7. The mother relies upon a number of aspects that she wants me to take into account in terms of assessing the children's best interests.  She says that the children have been primarily attached to her and that she is the one who is best able to care for them.  She refers to the fact that since separation the father has found it very hard to accept that the relationship with her is over in that she is now in a new relationship, and that there has been a very high degree of conflict and violence, and in fact an intervention order was made in her favour against the father in January this year after a three day contested hearing in the Magistrates Court.

8. She says there is very little trust between the parties, very little communication, and that a Family Report obtained within the last two months recommending equal shared time between the parents is fundamentally flawed in that, (summarising), the writer has failed to properly emphasise the violence and the conflict as evidenced by the intervention order, has arrived at a determination that the children are at risk of alienation without any real basis for that, and has failed to take into account how much the children's wishes in fact reflect an attachment to their mother. 

9. For his part the father not surprisingly emphasises to me that Family Report and the need for him to have the children with him half the time so that they do not become alienated from him.  I sympathise at least to this extent with what is said on his behalf, that some of the affidavit material filed by the mother indicates that the children are saying they do not want to see their father and that is very worrying when certainly in the course of the Family Report that did not appear to be what the children were saying.  I do note though that what the children said to the Family Report writer did seem to indicate that they did have a genuine primary attachment to their mother.  It is difficult at an interim stage to arrive at a decision when both parties have evidence that is completely conflicting as to what has been going on.  The difference is as fundamental as why the children have not seen their father, and I cannot hear that evidence tested.  I have to do the best that I can in those difficult circumstances.

10. I am not entirely persuaded by this Family Report.  There are gaps in the way that it is written so it is not clear how some of the conclusions are reached.  The writer clearly has a very strong view in favour of absolutely equal time between the parents.  I do not share the view that on the material in the Report that is necessarily what is indicated, but what is certainly indicated is the need for the boys to be seeing their father for solid chunks of time, and I cannot see any reason at all why they should not be seeing him from the Thursday to the Monday as previously ordered, half the school holidays, and on the other occasions mentioned in those orders.  It is a good idea that the pick-up be from their school so that the mother and the father do not have any contact, and they do not have any discussion or debate about the father seeing the children.

11. The mother must encourage the boys to see their father.  She must do that for three reasons.  The first is because it is a court order and she must obey the court order.  The second reason is that when, down the track, the court looks at each party's conduct, it will be important to analyse whether she has been encouraging of the relationship or discouraging of the relationship and if she discourages it then that would be a very serious issue against the children living with her in the future.  But the third and most important reason is that these young boys need their father.  They need a relationship with both their parents.  Their parents have separated relatively recently.  That is likely to be an insecure feeling for the children, a feeling that everything has changed quite suddenly.   The one thing that should not change for them is that they must be able to know that both parents adore them, and that they will still see both of their parents.  That is, that none of those important fundamentals in their lives have changed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date: 18 April 2008