Walkin and Walkin

[2007] FamCA 870

FAMILY COURT OF AUSTRALIA

WALKIN & WALKIN [2007] FamCA 870

FAMILY LAW – CHILDREN – Interim parenting orders – Parties not represented – Paucity of evidence

Family Law Act 1975 (Cth)

APPLICANT: MR WALKIN

RESPONDENT: MRS WALKIN

FILE NUMBER: AYC 307 of 2007

DATE DELIVERED: 21 AUGUST 2007

PLACE DELIVERED: ALBURY

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 21 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the orders made by the Local Court at Albury on 22 June 2007 and 18 June 2007 are discharged.

2. All outstanding applications are adjourned to a Pre-Trial Conference on 1 November 2007 at 3.30pm.

3. That pursuant to section 62G(2) of the Family Law Act 1975 the parties and children S … born … July 1995, M … born … April 1998 and N … born … June 2006 (“the children”) attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Albury Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. 

4. That pursuant to Section 68L(2) the Family Law Act 1975 the children be separately represented AND IT IS REQUESTED that Legal Aid Commission of NSW arrange such separate representation.

5. That forthwith upon appointment by the said Legal Aid Commission of NSW or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

6. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

7. That the husband file and serve any further application and affidavit of material upon which he intends to rely by 4.00pm on 21 September 2007.

8. That the wife file and serve any further response and affidavit of material upon which she intends to rely by 4.00pm on 19 October 2007.

9. That until the wife obtains accommodation to cater for herself and the three children, the children live with the husband and spend time with the wife as follows:

   (a)       from 4.30pm to 6.00pm between Monday and Friday; and

   (b)       on each Saturday from midday until 6.00pm

   and the handover point shall be the library in respect of the two older children and the day care centre shall be the handover point in respect of the child N and on Saturday, the wife shall take the children from the husband at netball and return them to the husband’s residence at 6.00pm.

10. That upon the wife obtaining the said accommodation and until further order, the children live with the husband from 1.00pm on Sunday until 4.30pm on Wednesday and with the wife from 4.30pm on Wednesday until 1.00pm on Sunday.

11. That for the purposes of the changeover, the children shall be collected by the wife from the parties’ church on the Sunday and on the Wednesday at the library and childcare centre.

12. 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.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Walkin & Walkin.

FAMILY COURT OF AUSTRALIA AT  ALBURY

FILE NUMBER: AYC 307  of 2007

MR WALKIN

Applicant

And

MRS WALKIN

Respondent

REASONS FOR JUDGMENT

1. This matter is being heard as an interim hearing on circuit in Albury.

2. The husband and the wife are both unrepresented.  Each has filed a number of documents much of which has not been particularly helpful for the purposes of this hearing.  I have treated the matter as an interim hearing on the basis that it is not ready for a final determination.

3. The husband is aged 34 and the wife 30.  The husband is in construction and the wife a professional.  They were married in November 1995 and separated on 12 April 2007.  There are three children of their relationship (“the children”).

4. I have read the various affidavit material filed by the parties and each suggests that a different role was played by the other in respect of the care of the children.  Those issues will no doubt become important if the matter proceeds to a trial.

5. On 31 May 2007, the wife filed an application in the Magistrates Court at Wodonga for an intervention order alleging violence against the husband.  That application proceeded on an ex parte basis and an order was made for 14 days precluding the husband from being within 200 metres of the former matrimonial home.

6. On 4 June 2007, the husband filed an application in the Local Court at Albury seeking injunctions against the wife and orders that the children live with him.

7. The record of the Albury Local Court proceedings is confined to an interim order signed by the registrar of the court.  It adjourned the proceedings to 18 June and restrained the wife from relocating the children away from the Wodonga area without the permission of the husband or an order of the court.

8. The parties then attended the Wodonga Magistrates Court on 14 June 2007 in relation to the intervention order.  The husband gave an undertaking which was more or less in the terms of the orders that had been made on an interim basis and particularly, excluding him from being within 200 metres of the former matrimonial home except to exercise “access” and to maintain the home.  On the same day, a document headed “Agreed child contact” was signed by the parties relating to the three children but does not say to whom it relates other than the fact that it refers to someone spending time with the children each week day from 4.00pm to 5.30pm and then “at netball” and then “each alt. weekend FR 4.00 to Sun 8.30”.  Apart from the fact that the agreement was understood by the parties, it does not say who was to spend time with the children and the cryptic wording is to be criticised.  When I turn to the affidavit that was filed for the hearing in the Albury Local Court, the wife made reference to the intervention order and then referred to the fact that she found herself “forced into a situation where” she had to leave the children with their father.  She went on to say that the husband had had weekend “visitation” with the children but that she had to go to Melbourne to start life afresh and had every intention of taking the children.

9. The orders of 18 June 2007 prevented that.

10. When the matter returned to court at Albury on 21 June, there is no reference to what occurred but I have a sealed document which purports to be an order dated 22 June 2007 indicating that the children were to live with the husband in the home at Wodonga.  Thereafter was set out an arrangement for the wife to spend time with the children on a three week rotating basis.

11. The Local Court transferred the proceedings to this Court and on 19 July 2007, Registrar Kaur had a procedural hearing in which she adjourned the matter for interim “property” proceedings to 20 August 2007 which was the first day of my circuit.  The wife did not attend the procedural hearing.

12. I held a callover on 8 August 2007 but neither party was able to be contacted notwithstanding the Court had the telephone numbers for each person.  Accordingly, I listed the matter for 9.00am this day.

13. It soon became apparent that this was not really a dispute about property matters.  The husband told me that he and the wife had agreed to split the proceeds of the sale of the home equally and that they had made arrangements about that with the conveyancing firm.  He said that the dispute was now about the children and what time each was to spend with them.  It appears however from the wife’s perspective that whilst she has agreed to an equal division of the proceeds of the sale of the home, there are still outstanding issues associated with superannuation and chattels.  Neither party had addressed those issues in their documents.  I have made it very clear that if this Court is to resolve those issues, an appropriate application has to be made and the parties needs to get some legal advice about how the Court will approach that issue.

14. The issue was about the interim arrangements for the children.  The husband offered that the children live with him from Sunday through to Wednesday and with the wife from Thursday to Sunday.  He said the wife could collect the children on Thursday from school.

15. That proposal came in the context of the fact that the wife had now returned to the Albury area having lived in Melbourne since the orders were made in the Local Court in June.  During that period of time she had hardly seen the children, if at all.

16. I indicated that I was not prepared to determine the matter on a permanent basis because I did not have sufficient information about the future for each of the children.  To compound the problem, the wife was still looking for employment which regulated her capacity to obtain accommodation.  At the moment she is living with friends and that is not a suitable environment to raise the children.  She is boarding in H.  She has a job interview for a position in A and otherwise is doing some casual work and seeking Centrelink benefits.  From what I can gather from the husband’s material, he is also in receipt of some benefits as he has entered into a six month lease and any order affecting the children may affect that lease.

17. I explained to the parties that I was not particularly interested in their philosophical views about the sharing of the children but rather was interested in what they were proposing and more importantly, trying to make an interim arrangement for the children whilst I put in place some orders to enable the case to be properly heard in November.

18. The wife indicated that her position was that she thought that the husband’s proposal was disruptive.  She wanted a week about arrangement.  I indicated that I did not have sufficient information to make that judgment.  I pointed out that on the material I had read, the youngest child had been in day care for a long time and was therefore accustomed to various changes.  The two girls apparently leave school and catch a bus to the library near their home and are then collected by the husband at 4.30pm.  According to the husband that is what has occurred for a long time as well. 

19. There was considerable angst between the parties.  The husband made it clear that the wife had abandoned the children and he had taken on the task of caring for them in the wife’s absence.  Whilst there may be an emotive issue in that statement, it seemed clear to me that the wife’s application was always that the children go to live with her in Melbourne and she has endeavoured to give some explanation as to why she was absent from the children during that period of time.  I indicated to the parties that I was not particularly interested in their beliefs and opinions but rather I was looking for an understanding of how each of them was going to care for the children in the future if they were both in the same area.  In that context, it is interesting to note the husband’s offer that the children be shared between them indicating that he has little concerns now about the capacity of the wife to care for the children.

20. The husband’s view however is that if he has less than half of the time with the children, it will affect his government benefits and that may affect his capacity to pay the lease which he has taken for six months.  The wife’s position was that there should simply be an equality of sharing because that was in the best interests of the children.  In reality, neither party was focussing on what was in the best interests of these children.

21. The Family Law Act 1975 (Cth) (“the Act”) sets out that any decision I make must be in the best interests of the children.

22. To assist me in making any decision, I propose to order a family report.  I also consider that this is a case in which I would benefit from the assistance of an Independent Children’s Lawyer having regard to the fact that both parties are unrepresented and seem to be dwelling on their own personal needs rather than the future needs of their children.  Having said that, I do not criticise the husband for endeavouring to establish himself with the children but even he acknowledges the need for the parties to share in the lives of these children.  Interestingly, both parties attend the same church and will continue to do so and the girls are significantly involved in netball at which both parties will attend.  Each of those particular events cuts into the weekend of the parties and the children and it is my clear intention that the parties both attend the church events and the netball and if possible, spend time together as a family so that the parents can show the children a united front.  I shall also use those events as a point for the handover of the children until the matter can be more adequately examined.  I propose to appoint an Independent Children’s Lawyer to give some assistance to these issues.

23. When making a parenting order such as I propose, the provisions of s 61DA and s 61DB require that I must apply the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. There are a number of exceptions that enable the presumption to be rebutted. One of those is where there are reasonable grounds to believe that there has been abuse of one of the children or family violence. In this case, there is ample evidence of problems between the parties culminating in an undertaking being given by the husband. I do not propose to make any findings about that nor should I. Accordingly, the issue of family violence may become significant in the future. More importantly, the Act provides that when making an interim order, the Court does not have to apply the presumption if there is not sufficient information upon which a proper examination of that issue could be determined. In my view, that is a classic example of what has occurred here.

24. Furthermore, the presumption may be rebutted if the Court is satisfied that it would conflict with a child’s best interests.  I am not at all sure what the impact of any of these orders would have on these children having regard to the paucity of information.

25. However, to determine an interim matter, one still has to examine the matters set out in s 60CC. 

26. The provisions are divided into two parts.  The first relates to primary considerations and the second relates to additional considerations. 

27. Primary considerations include the benefit of the child having a meaningful relationship with both parents.  I am particularly concerned in this case about the absence of the wife and what damage that may have been done particularly to the youngest child, N, but the husband was certainly willing to provide significant time between the wife and the children and the orders I propose will enable the relationship to be resumed.

28. The second of the primary considerations relates to the need to protect the children from physical and psychological harm and it is abundantly clear from the demeanour of both parties that they are communicating but not comfortably and each is unhappy with the other.  The orders I propose will potentially reduce the conflict on the basis that there will be a number of persons around both at the church and at the netball at least on an interim basis.

29. In relation to the additional considerations, I do not have any objective understanding of the views expressed by the children and clearly the youngest child N is too young in any event.

30. There is a very significant dispute about the relationship between the children and each parent but that seems more to be around emotional issues that each has about their entitlements and issues of equality and fairness rather than what is in the best interests of the children.  It is my hope that the family consultant report will resolve a lot of those issues.

31. Each party has expressed a willingness to involve the children in the lives of the other and that is encouraging.

32. I do not have any understanding of the likely effect of any change in the children’s circumstances and more particularly, the effect on the children of separation and for that reason, I have taken a conservative approach and endeavoured to enable each parent to have significant time each week until the matter can be properly assessed.  That will include time where the parties will spend with the children at church and at netball and as I have indicated, it is my intention that the parties can if possible, act as a family at those times.  It would be sad if it were otherwise.

33. There are no difficulties now that the wife has returned to the Albury area in spending time with the children and subject to the wife obtaining appropriate accommodation, I understand that she has the capacity to resume what she had been doing in the past in caring for the children in the same way that I have no concerns about the husband’s capacity to care for the children.  The husband has made it clear that he has some concerns about the orders I propose on the basis that he will lose his lease but that is some time away and the more important issue from my perspective is that he has the capacity to care for the children as he has done in the absence of the wife until now.  In respect of his own accommodation, that is a matter that needs to be assessed with the assistance of professionals.

34. There are no issues of maturity or aboriginality in this case.

35. Each of the parents has shown a responsible attitude as best I can determine on the papers and I repeat what I had earlier said about the husband’s accusation that the wife had abandoned the children. 

36. I am extremely concerned about the suggestion of family violence and in the courtroom, the husband has expressed frustration about the proposed orders having an impact upon his lease.  As I have indicated, it is not my intention to make that difficult nor was it my intention to try and achieve some equality between the parties but rather to enable each of them to spend time with the children at a time when the children can continue the participation in activities such as netball and church and the parties can spend time at those activities together.

37. I have taken into account the provisions of s 60CC(4) and say that I am satisfied on what I have heard and read that there has been no suggestion of the husband endeavouring to restrict the involvement of the wife in the lives of the children nor of the wife having abandoned them.

38. In the circumstances, I propose to make orders which will enable both parties to spend significant time both of a leisure nature and in the daily activities of the children.  I propose to make some temporary orders whilst the wife endeavours to obtain her accommodation.  She will see the children each day and for some time at a weekend and when she ultimately obtains accommodation which is sufficient for the children and herself, then the orders will provide that there is some time during each week and also on the weekends bearing in mind that the children will attend church and netball.

39. It is my intention that the matter be returned to a pre-trial conference following which it can be heard at the circuit in November if the parties have otherwise not resolved the ultimate determination of the matter.

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  23 August 2007