Tyler and Tyler

[2016] FamCA 961

FAMILY COURT OF AUSTRALIA

TYLER & TYLER [2016] FamCA 961

FAMILY LAW – CHILDREN – Interim parenting

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

APPLICANT: Mr Tyler

RESPONDENT: Ms Tyler

FILE NUMBER: CAC 16 of 2015

DATE DELIVERED: 22 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 22 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Muir

SOLICITOR FOR THE APPLICANT: Australian Family Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED

By consent

1. That the parents and the children attend upon Dr B for the purpose of the preparation of a Family Report on such dates(s) and time(s) as advised by Dr B.

2. That the Family Report deal with the following matters:

   (a)      Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b) The matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)      Any other matters Dr B considers important to the welfare or best interests of the children.

3. That the costs of the Family Report are to be paid equally by both parents.

4. That within 7 days of the date of these orders each party send to Dr B a copy of that party’s court material.

5. That upon receipt of a sealed copy of these orders the solicitors for the applicant father provide a copy of the sealed orders to the Family Consultant.

By the Court

1. That until further order the children C born … 2008 and D born … 2010 (“the children”) spend time and communicate with the father as follows:

   (a)      Saturday 23 July 2016 at D’s soccer to watch him play soccer and for one hour after the conclusion of the soccer game, with changeover to occur at the soccer ground at which the match has been played;

   (b)      Sunday 24 July 2016 at C’s soccer to watch him play soccer and for one hour after the conclusion of the soccer game, with changeover to occur at the soccer ground at which the match has been played.

   (c)      Saturday 30 July 2016 to watch D play soccer and for a period of two hours after the conclusion of soccer;

   (d)      Sunday 7 August 2016 to watch C play soccer and for a period of two hours after the conclusion of soccer;

   (e)      Saturday 13 August 2016 and each alternate Saturday thereafter to watch D play soccer and for a period of five hours from the conclusion of the soccer match, such time to commence at 10.00am in the event there is no scheduled soccer match that day;

   (f)       Sunday 21 August 2016 and each alternate Sunday thereafter to watch C’s soccer match and for a period of five hours from the conclusion of the soccer match, such time to commence at 10.00am in the event there is no scheduled soccer match that day;

   (g)Any other time as agreed between the parents in writing.

2. That the paternal grandmother Ms E Tyler be in substantial attendance during the visits at paragraphs 6(a) and (b).

3. That the mother is to send the father a text message as soon as practicable advising him of the times and locations of the children’s soccer matches.

4. That in order to facilitate changeover where it does not occur at the children’s soccer, changeover will be at the food court at the Woolworths Shopping Centre, the corner of Suburb F.

5. That the father is permitted to contact the children’s soccer clubs and provide a copy of these orders and to be added to the mailing list for the children’s soccer fixture.

6. That all extant interim applications are adjourned to the Senior Registrar’s Duty List on 21 October 2016 at 10.00am for interim hearing.

7. That pursuant to s 65DA(2) and s 62B, the particulars of 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 these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tyler & Tyler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CAC 16 of 2015

Mr Tyler

Applicant

And

Ms Tyler

Respondent

REASONS FOR JUDGMENT

1. The matter of Tyler comes before me today out of a Registrar’s list upon the Initiating Application filed on behalf of the father on 11 July 2016.  The father in that application seeks interim parenting orders with respect to parenting arrangements for the two children of the marriage, C, who is born on in 2008 and is aged almost eight years, and D born in 2010 who is aged approximately six and a half years.

2. The background to the matter is as follows. 

3. The father is Mr Tyler.  He is aged 49 years.  He is engaged in employment as a manager. 

4. The mother is Ms Tyler.  She is aged 45 years.  She is a homemaker and parent. 

5. The parties commenced their cohabitation in about 2007.  They married in 2008 and separated in October of 2012.  They divorced in 2015.

6. The parties have had previous proceedings before the Court which culminated in the making of final orders by consent on 9 September 2015.  Those orders provided that the parties have equal shared parental responsibility for the children, that the children live with the mother and that for a period of six months from the date of the orders, the father spend time with the children on a supervised basis each alternate weekend at a contact centre.

7. The father was to bear the expense in relation to the supervised time with the children.

8. Paragraph 4 of the orders provided as follows:

   That upon the expiration of order 3, the applicant and the respondent do all things necessary to appoint [Dr B] pursuant to section 62 of the Act to prepare a family report as to the best interests of the children in relation to the appropriate frequency, duration and level of supervision, if any, of time spent by the respondent with the children after that date and will rely upon such recommendation.

9. The parties complied with those orders insofar as the father commenced having supervised time in the weeks immediately preceding the orders being made.  That supervised time continued until early March 2016.  The parties, in compliance with the orders, attended upon Dr B. 

10. However, it would appear that there has been some confusion on Dr B’s part as to the role that he was to perform in assisting these parties.  What is clear is that the parties did attend and had some appointments with Dr B.  However, Dr B did not undertake the preparation of a family report as had been anticipated pursuant to the orders. 

11. The discussions broke down.  The mother alleges that the father walked out of the appointment with Dr B and refused to further participate in the process. 

12. That is an allegation which is denied by the father.  Rather, he says that it was not explained to him prior to the engagement with Dr B as to the costs associated with the preparation of the family report. 

13. What is clear in any event is that following the engagement in that process with Dr B, the children were not made available for time with the father.  The six-month supervision period expired and no appropriate arrangements were made for a continuation of the children spending time with the father.  As a result, the father filed his application on 11 July 2016. 

14. The interim orders sought by him contemplate him spending gradually increasing periods of time with the children, culminating in him spending time with the children each alternate weekend from after school Friday to the commencement of school Monday and on Wednesdays overnight from 5.00 pm until the commencement of school Thursday.  He also makes proposals with respect to time during the school holiday periods and on special days.  He also proposes orders with respect to arrangements which will enable him to be engaged with the children’s various extracurricular activities and the like. 

15. The application filed by the father is supported by an affidavit filed on 11 July 2016. 

16. The mother has filed a response to initiating application.  The response is filed on 21 July 2016 together with a notice of child abuse, family violence or risk of family violence.  The response and notice are supported by an affidavit of the mother filed 21 July 2016. 

17. The orders sought by the mother, simply put, are that the parties are to comply with the orders of September 2015 – that is, that they obtain a family report from Dr B. 

18. The matter commenced before me this morning having been transferred from the Registrar’s List.  At the commencement of the hearing before me, the mother indicated that she sought the opportunity to confer with the duty lawyer.  Accordingly, the matter has been stood down to enable that conference to occur. 

19. Following the discussion between the mother and the duty lawyer, the lawyer for the father and the mother have engaged in further discussions. 

20. There is agreement now between the parties as to the process of engaging Dr B to prepare a family report to assist the parties.  Appropriate inquiries have been made of Dr B and it is clear that he has appointments available to the parties in August or September. 

21. In any event, it is clear that he has the capacity to prepare a report in anticipation of a further interim hearing in the Senior Registrar’s duty list on 21 October 2016. 

22. The issue that stands between the parties for this interim hearing is the question of what time the father should spend with the children in the intervening period.  What is put on behalf of the father is that he should spend time with the children on each day of the weekend for initially a period of two hours building up to five hours each day and culminating in overnight time commencing on the weekend of 13 August 2016. 

23. It is urged upon me that that arrangement is appropriate so as to restore what was the positive arrangement enjoyed between the father and the children in the period when supervised time was occurring. 

24. The mother opposes that proposal.  Instead, she puts to the Court that there be time spent between the children and the father on a weekly basis initially for the period of the children’s soccer games building up to two hours and then culminating in five hours per week and that that arrangement continue until further order. 

25. The relevant principles in relation to interim parenting proceedings are well settled and I refer specifically to the Full Court decisions in Goode & Goode [2006] FamCA 1346. Those principles were affirmed by the High Court in MRR v GR [2010] HCA 4.

26. Section 60B of the Family Law Act1975 (Cth) (“the Act”) outlines the objects and principles underlying part VII of the Act. The objects provide that the court should 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; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    …

27. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a court is to have regard to the best interests of the child as the paramount consideration.

28. Section 60CC outlines the primary and additional considerations that the court is to take into account in determining what is in the children’s best interests. The primary considerations set out at section 60CC(2) of the Act are that:

    (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

29. The centrepiece of the mother’s case is that she says there is a long history of family violence that she records in her notice of risk, that history which she concedes largely relates to allegations of violence that are said to have occurred in the period leading up to the parties’ separation in 2012. 

30. Notwithstanding the fact that the parties have now been separated for a period of four years, as recently as 2015 the mother has obtained an intervention order against the father naming both herself as well as the children as protected persons under that order.  She has informed the Court this day that, in fact, she has made further allegations as to alleged breaches of that order, those allegations largely relating to communications by the father to the scout group attended by one or both of the children seemingly to obtain information as to the costs of the scouting commitment and presumably the nature of the children’s involvement in that organisation. 

31. The mother takes a different view of that communication, it being her position that, in fact, the father was utilising that communication as a means of locating her whereabouts and the whereabouts of the children.

32. I am not in a position today to make any findings with respect to those matters.

33. In determining the appropriate arrangements for the children for this short interim period, I have regard to the independent evidence that is before me.  The best source of evidence as to the nature of the children’s relationship with the father is that contained in the report of the contact supervisor which is annexed to the father’s affidavit filed 11 July 2016, that being annexure BT3 to that affidavit.  That report provides the Court with information as to the observations of the contact supervisors over the 14 visits that occurred between the father and the children between August 2015 and the end of February 2016.  The report provides a summary at page 30.  The report notes that C and D appeared relaxed and comfortable in the presence of the father, which was reflected in the discussions around school, sport, birthday parties and activity-based play. 

34. The summary records that the father provided snacks and drinks throughout the visits, that the father was courteous and respectful of staff members at the service, and importantly, that from the children’s perspective the interaction with their father was positive, that they appeared to enjoy spending time with the father, which was evident from their happy demeanour, the smiles and laughter throughout the visits.  It is reported that the father was child-focused and appropriate during the visits and managed to juggle his time evenly and engage well with both children, following their lead in play. 

35. It is significant, in my mind, that the father has undertaken that supervised time over an extended period. It is equally significant, in my mind, that the proposals of the mother this day make provision for that time to move to limited unsupervised time. It is important, in my mind, having regard to the matters set out in s 60CC, that the children have the opportunity of resuming a relationship with their father. Initially, and until such time as a full report is available, of necessity the time must be limited having regard to the specific concerns raised by the mother as to the allegations of risk.

36. With that in mind, what I propose to do is make orders in the following terms. 

ORDERS DELIVERED

1. I have made specific orders in relation to changeover.  There was a difference between the parties as to whether or not changeover should occur at the food court at Suburb F or, as the mother would seek, at a police station in Suburb G.  In my view, it is appropriate, wherever possible, that the children be protected from the environment of a police station, with the comings and goings that can occur in that setting.  I am mindful of the mother’s desire that the changeovers occur in a public space and that she and the children feel safe.  I am satisfied that a food court such as that proposed by the father is such an environment. 

2. I am told that the food court at Suburb F is the approximate midpoint between the parties’ respective residences and in the circumstances I consider that for these interim orders that that is an appropriate venue for such changeover. 

3. The father also sought an order that he be permitted to be informed of extracurricular and sporting activities and be able to attend such activities, as is the usual course.  The order was opposed by the mother.  In the circumstances of the case, and in circumstances particularly where there is to be a full family report, I form the view that that is a matter that can be more appropriately dealt with upon receipt of the report at the adjourned interim hearing. 

4. Beyond the orders that I have already pronounced, I will make orders by consent with respect to the arrangements for the report of Dr B.  Those orders include an order that the parties share equally the costs of the report of Dr B.  The mother had indicated that she sought that she contribute only 10 per cent of those costs.  It is clear from the original final orders made by the parties that a report from Dr B was contemplated.  That order was silent as to how the costs of the report were to be apportioned.  The usual course is that parents share the cost of such reports.

5. In circumstances where there is no detailed financial information before me as to the parties’ respective financial circumstances, it is my view that it is appropriate that the parties share the costs of that report. I will make further orders adjourning all extant interim applications to the list conducted by the Senior Registrar on 21 October 2016 at 10.00 am, and I will make the usual order pursuant to ss 65DA and 62B of the Act.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 July 2016.

Associate: 

Date:  22 July 2016