Vine and Vine (No. 3)

[2018] FamCA 401

FAMILY COURT OF AUSTRALIA

VINE & VINE (NO. 3) [2018] FamCA 401

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Outcome of Family Assessment Report – Orders for the child to spend time with the mother, but that overnight or additional time with the mother is to be at the request of the child.

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – Where the matters of complexity have been largely resolved – Where the remaining matters are not significantly complex – Matter transferred back to the Federal Circuit Court.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3)

Goode & Goode [2006] FamCAFC 1346
Marvel & Marvel [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Vine

RESPONDENT: Mr Vine

FILE NUMBER: ADC 638 of 2013

DATE DELIVERED: 1 June 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. That the order of 29 January 2018 is discharged.

2. That until further order X born … 2006 shall spend time with the mother as follows:-

   (a)Each Tuesday from the conclusion of school (or 3pm if a non-school day) to 7.30 pm PROVIDED that if X shall request to stay overnight then his time with his mother is extended to the commencement of school on Wednesday (or 9am if a non-school day);

   (b)Such other periods as the parties may agree taking into account X’s wishes.

3. That the interim proceedings do otherwise stand dismissed.

4. That the proceedings be transferred to the Federal Circuit Court.

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 Vine & Vine (No. 3) 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 ADELAIDE

FILE NUMBER: ADC 638 of 2013

Ms Vine

Applicant

And

Mr Vine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By consent orders made 16 August 2016, the parties resolved their parenting dispute in respect of X born in 2006, Y born in 2008 and Z born in 2009 (collectively “the children”).

2. The parties have equal shared parental responsibility for the children, but the father has sole parental responsibility with respect to education for X and the mother has sole parental responsibility with respect to education for Y and Z.

3. The orders provide for Y and Z to live primarily with the mother and spend time with the father from the conclusion of school on Wednesday until the commencement of school on Friday in each alternate week as and from 17 August 2016.

4. The orders provided for X to live with the father and spend time with the mother from the conclusion of school on Wednesday until the commencement of school on Monday and in each alternate week thereafter as and from 24 August 2016.

5. School holidays were shared and the orders were comprehensive in respect of the exchange of information between the parties as to matters affecting the care, welfare and development of the children.

6. The current proceedings have their genesis in an Initiating Application filed by the mother on 27 July 2017 seeking orders directed to the time that X spends with her and conceding that X had not been spending time pursuant to the consent orders.

7. The mother proposed a suspension of orders 10 and 14 and in their stead, X would spend gradually increasing time with the mother.

8. Whilst the parties disagree as to the basis of X’s reluctance to spend significant time with the mother, she accepts X’s presentation is such that it must be largely regulated in accordance with his wishes.

9. The father filed his Response on 17 August 2017 seeking orders that he have sole parental responsibility and that X live with him and spend time with the mother each Wednesday afternoon from the conclusion of school until 5.30pm, for agreed periods during school holidays and at other times as may be agreed between the parties provided that X’s time with the mother occur in the absence of the mother’s then partner Mr S.

10. The father’s Response also seeks that Y and Z should live with each of the parties on a week about basis until they commence year 8 at school respectively, at which time the father seeks that they live with him during school terms and spend time with the mother from the conclusion of school on Thursday to the commencement of school on Monday.

11. The parties were in disagreement as to the arrangements for the children to spend time with the mother between 23 and 26 March 2018 to enable them to attend the preparations, ceremony and festivities associated with the mother’s marriage to Mr S.

12. Since the filing of the mother’s Initiating Application, judgments have been delivered in respect of interim proceedings on 10 November 2017, 9 February 2018 and 9 March 2018.

13. To assist the Court in determining the interim arrangements for the children, an order was made on 2 March 2018 for the preparation of a report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). Ms U (“the family consultant”), produced her report dated 14 May 2018.

14. The report recommended that parental responsibility for the children remain as ordered, that X reside with the father and spend one night per week with the mother from after school to 7.30pm, with the option to spend overnight if he indicates a preparedness to do so.

15. It was further recommended that X spend one full day on alternate weekends to coincide with Y and Z being in the mother’s care, again with the option to spend overnight.

CURRENT POSITION OF PARTIES CONCERNING X

1. At the commencement of the hearing the mother conceded that the orders she seeks for X to spend time with her are unrealistic taking into account X’s oppositional behaviour and the opinion of the family consultant that orders for overnight time in the absence of X’s preparedness to do so would be likely to adversely impact the mother’s relationship with him.

2. She is prepared to accept final orders with respect to X in terms of the recommendations of the family consultant.

3. For his part, the father supports X spending time with his mother each Tuesday afternoon from after school until 7.30 pm, with any further time, overnight or otherwise, to be subject to X’s wishes.

4. The father has also conceded that, given the mother and Mr S are now married, it would be unrealistic to expect Mr S to absent himself each time X spends time with the mother.

5. The parties are in effective agreement as to the ongoing arrangements for X and I propose to make orders that require X to spend time with his mother each Tuesday after school until 7.30 pm, but that any overnight time or further time on each alternate weekend is subject to X’s wishes.

Y & Z

1. The mother seeks that the current orders for Y and Z to live with the mother and spend time with the father remain unchanged.

2. The father seeks that their time with him should be increased to equal time.

3. He argues that given the mother’s concession in relation to X, the orders effectively split the siblings with X spending time with Y and Z during the five nights that they spend with the father and for a few hours on each Tuesday.

4. The father further contends that Y should also be given the opportunity to have his wishes respected.  The father says that Y’s present position is that he wants to spend equal time with the parties.

5. He argues that Y is upset that “his voice is not heard” and that there is some urgency to a change to the interim arrangements to deal with the child’s “despondency”.

6. The father also raises a concern that Y and Z have been struggling academically and unless there is an order for equal shared parental responsibility, he is not able to engage in the children’s education in circumstances where he alleges the mother is derelict.

7. The mother opposes any change to the living arrangements for Y and Z and submits that the children are well settled.

8. The relationship between the parties remains poor and their ability to communicate without rancour is limited.

FAMILY REPORT

1. In interview, Y was aware of the purpose of the meeting with the family consultant and stated that he had a preference for a week about arrangement between his parents.

2. He disclosed some complicated dynamics between his siblings.  He complained that X and Z picked on him with Z proposing ways to hurt and upset Y and X implementing those plans.

3. The extent to which X can be divisive is evidenced by Y’s disclosures.  He reports that “[X] urinated in his shoes and messed up his fishing rods” and that he has pinched Y and corners him.

4. X’s behaviour towards Y has come to the attention of his father and step-mother and they have used their best endeavours to stop it occurring.

5. It appears that X’s behaviour is just as difficult in the mother’s home, although his opportunity for defiant and oppositional behaviour is limited by restricted time.

6. On a positive note, Y appears to have a good relationship with Mr S and the activities that he describes are all appropriate and likely to be enjoyed by a 10 year old.

7. Whilst younger than Y, Z impressed the family consultant as a self-assured child.

8. He was aware of the purpose of the interview and he reported that “he mostly enjoyed living with his mother”.

9. He did not have any apparent worries and was positive in his view of life in each household.

10. His relationship with X seemed more harmonious than as enjoyed by Y and he denied that he had engaged in any bullying activity directed towards Y.  He conceded that it was X who had bullied Y.

11. The observations of interaction with the adults and the children were largely unremarkable.

12. In particular it was noted that each of the parties’ partners took an active role in their engagement with the children and there appeared to be a positive reaction.

13. The family consultant obtained information from each of the children’s schools.

14. Whilst X’s attendance has been problematic with it being noted that X had been reported for poor behaviour on 71 occasions, in comparison Y and Z’s school principal reported that they “were lovely boys who were respectful towards their teachers and peers.  There were no significant behaviour issues with either child”.

15. Z was reported to engage well socially and there was no suggestion that he was on the Autism Spectrum.

16. The school acknowledged that the children were struggling academically but within reasonable parameters and “not to the degree to require NDIS or Departmental funding”.

17. Of the two children, Y’s teacher reported that he was the more emotional.

18. There was no indication that the mother was not co-operative or appropriately engaged in the children’s schooling.

19. The family consultant considered that the overwhelming issue was to explore “how best to support X’s time spending with his mother”.

20. It is a common thread through the course of the litigation that X’s challenging behaviour has commanded the most attention.

21. The family consultant summarises her assessment of Y and Z in the following terms:-

    101.In regard to [Y] and [Z] there would seem no pressing reason to change their parenting arrangements.  They have been in that arrangement since August 2016.  It is assessed they have a positive relationship with their mother and [Mr S] with no significant issues.  In this arrangement they spend five consecutive nights with their father, step-mother and [X].  Notwithstanding concerns about splitting the sibling group, [Y] benefits by being protected from what appears to be bullying behaviour by his siblings, and the younger boys have an opportunity to be free from continually being exposed to [X’s] issues.  The school reports that despite [Y] and [Z’s] learning issues they are happy, polite children who are incorporated into the school community and have established friendship groups.

INTERIM PARENTING

1. In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the caution that should be exercised in interim proceedings. The issues of findings on contested evidence was considered as follows:-

   [120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

2. The Full Court in Goode & Goode [2006] FamCAFC 1346 considered the principles applicable to parenting and interim proceedings and the principles have been reaffirmed by the High Court in MRR v GR (2010) 240 CLR 461.

3. Section 60B of the Act outlines the principles underlying Part VII of the Act.

4. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.

5. The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).

6. Whilst I am obliged to give independent consideration to the proposed parenting orders even where they have the consent of the parties, in the current circumstances the significant concession by the mother in relation to the truncated time that X will spend with her is supported by the father, and is properly reflective of X’s at times difficult presentation.

7. The family consultant did not consider that X’s interests would be served by an order that required him to spend significant time with the mother unless it was in accordance with his wishes.

8. I propose to make orders that X spends time with his mother each Tuesday from after school until 7.30pm and that any further time, whether it be overnight or during the day on each alternate weekend to coincide with Y and Z’s time with their mother, will be subject to X’s wishes.

9. The father seeks to alter the current arrangements with respect to Y and Z that have been in place since August 2016.

10. The family consultant was aware of Y’s preference to spend equal time with his parents.  Z was content with the current arrangements.

11. Appropriate enquiries of their school did not disclose any significant issues of concern.  Despite a level of underachievement academically, it was not at a level that required specialist intervention and the family consultant considered it important that the children presented as well-adjusted, polite and having a good peer group social network.

12. The children maintain a positive relationship with the partners of the parties.

13. It could not be said that the current arrangements have the effect of splitting the siblings as asserted by the father. 

14. In his home the children spend substantial time together.

15. The family consultant considered that it might be a positive advantage to Y, given X’s bullying behaviour, that he gains some respite in the mother’s home.

16. In circumstances where the experience of Y and Z living primarily with the mother but spending significant and substantial time with the father has been positive and in the absence of any support for a different arrangement from the family consultant, I do not consider it would be in their best interests to accede to the father’s application.

17. Whilst it is necessary to acknowledge Y’s views, they are not shared by Z.

TRANSFER OF THE PROCEEDINGS

1. The prime focus of the litigation leading up to the final orders in 2016 has been to consider how best to manage X’s behaviour.

2. The focus of the mother’s current Initiating Application was to consider alternative arrangements for X to spend time with her acknowledging that the final orders did not represent X’s best interests and were not reflective of the current circumstances.

3. Matters in respect of X have now been largely resolved.  The mother’s concession is appropriate and effectively removes from the litigation the significant issue which has vexed the parties.

4. Taking into account the observations of the family consultant, the issues that impact upon Y and Z lack any significant complexity.

5. Whilst the father seeks equal shared parental responsibility to enable him to better engage in the educational needs of Y and Z, in all other respects the parties share parental responsibility.

6. In the circumstances of this case the interests of the children are likely to be better served by the proceedings being transferred to the Federal Circuit Court of Australia.

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy-three (73) paragraphs are a true copy of th reasons for judgment of the Honourable Justice Berman delivered on 1 June 2018.

Associate: 

Date:  1 June 2018