Watson and Watson

[2010] FamCA 788

FAMILY COURT OF AUSTRALIA

WATSON & WATSON [2010] FamCA 788

FAMILY LAW – CHILDREN – With whom a child spends time – School holidays – Interim orders for father to spend time with children

APPLICANT: MR WATSON

RESPONDENT: MS WATSON

FILE NUMBER: MLC 5375 of 2009

DATE DELIVERED: 1 SEPTEMBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 1 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DICKSON

SOLICITOR FOR THE APPLICANT: WEBB KORFIATIS

COUNSEL FOR THE RESPONDENT: MR BARTFELD QC

SOLICITOR FOR THE RESPONDENT: MAEVE O’BRIEN & ASSOCIATES

Orders

IT IS ORDERED:

1. THAT during the September 2010 school holidays the husband spend time with the children M born … January 2003 and R born … September 2004 (“the children”) from the conclusion of school on Friday 17 September 2010 until 6.00 p.m. on Thursday 23 September 2010 at which time the husband deliver the children to the wife’s home.

2. THAT for the purposes of the time spent as ordered in paragraph 1 hereof:

   (a)the husband is to be in substantial attendance throughout that school holiday period with the children;  and

   (b)the time spent be within Victoria (though the husband denies the need for any such restriction upon this order but has indicated to the Court that he has no plans at this time to travel out of Victoria).

3. THAT each party be restrained by themselves, their servants and agents, until further order, from discussing with the children or the eldest child L, of any of them, the court proceedings of and related to this day, save that the parties and L and the children may comply with any reasonable instruction or request from Mr P, psychologist, in conference or other discussion with him or at his direction.

4. THAT the orders of Dessau J pronounced 16 December 2009 otherwise are to remain in full force and effect on an ongoing basis but subject to:

   (a)the husband’s alternate weekend time spent periods with M and R shall resume in Term 4, 2010 at the conclusion of school on Friday 8 October;  and

   (b)paragraph 3(e)(vii) of the orders be varied by substituting the words “between 6.00 p.m. and 6.30 p.m. inclusive” in lieu of “from 6.00 p.m.”.

5. THAT the husband and wife each jointly instruct Mr P, psychologist, to prepare an updated report of and related to the family and three children and all relevant issues of and concerning each of them and matters previously reported upon and that such final written report be in preparation for the defended final hearing of these proceedings.

6. THAT this further report of Mr P is to be released (as far as practicable and subject to notice able to be provided by the Court of the first day of the defended trial) thirty (30) days prior to commencement of trial.

7. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and Mr P.

9. THAT all interim applications, inclusive of the husband’s application in a case filed 13 August 2010 be otherwise dismissed.

10. THAT all applications for final orders outstanding be otherwise referred to Registrar Field for the allocation of a judge docket listing for a defended hearing as soon as practicable.

IT IS FURTHER ORDERED BY CONSENT

1. THAT each of the husband and wife forthwith do all acts and things, sign all documents and give necessary and proper instructions to extend the current borrowing over the property situate at S in the State of Victoria by a sum of $100,000 and all such additional funds are to be paid to the wife as an interim property settlement with the additional borrowing fees, costs and charges to be serviced by the husband pending trial.

2. THAT the husband, or his professional advisers on his behalf, continue to provide all documents, records and information to M Firm (the appointed single expert accountants) promptly and as requested and both husband and wife be entitled to request and receive copies of any documents from that firm for the purposes of case preparation of these proceedings.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel appearing for the wife and Counsel appearing for the husband.

IT IS NOTED that publication of this judgment under the pseudonym Watson & Watson is approved pursuant to s 121(9)(g) of the family law act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5375 of 2009

MR WATSON

Applicant

And

MS WATSON

Respondent

REASONS FOR JUDGMENT

1. I have before me an application by the father to spend time with two children of the marriage, M, who is seven years of age, and R, who is almost six years of age.  There is another child, L, who is 14 years of age.  L now lives with his father and there are issues as to the time that he spends with his mother, but those issues are not before me in the limited interim application that I am hearing on parenting matters.

2. The father’s application is for M and R to spend time in the September school holidays with him.  He has modified the order sought in his application in his further affidavit, filed 30 August 2010, and, in particular, paragraph 50 thereof.  What he now seeks is to have those two children, M and R, spend time with him from after school on 17 September until 6.00 p.m. on 23 September, when he will return them to the wife’s home.  That is six nights.  For the purposes of those six nights he will not travel out of Victoria.  He will not be working and he will spend that time with those two children and with L.

3. In support of that order sought the father relies upon his primary affidavit, filed 13 August of this year, and the supplementary affidavit, filed in reply to a very substantial affidavit of the wife; that further affidavit of the father being filed 30 August 2010.

4. The response to the application in a case was filed 24 August 2010.  It seeks both parenting and property and financial orders and for the purposes of these brief ex tempore reasons, I deal only with the parenting orders.  What is there sought by the mother are the discharge of orders made by the Court on 16 December 2009.  Additionally an order is sought for an updated report from Mr P and a significant variation by way of ongoing time that the father would spend with M and R.

5. Substantially what is proposed by the mother is that there would be no overnight time and that each of those two younger children would be with their father from 9.00 a.m. until 6.00 p.m. inclusive on Saturday and Sunday and for a few hours after school on a Wednesday evening.  There are further and substantial restrictions sought as against the father’s time with the children, including required supervision, non-alcohol consumption and injunctions, as identified in paragraph 8 of those orders in response.

6. The orders of Dessau J were pronounced on 16 December of last year.  The parties were represented then by experienced but different counsel.  The orders are somewhat curious in that some are made by consent and others made by the Court.  To the extent that there are orders made by the Court, there are no available reasons for judgment and I am advised by practitioners this day that no reasons were delivered.  The effect of those orders was that, until further order, M and R were to live with their mother.  It is of significance that they were interim orders pending a defended hearing, which is yet to occur.

7. Likewise, and not with the consent of the parties, M and R were to spend time with their father on an ongoing alternate weekend basis, from after school on Friday until the commencement of school the following Monday.  That is three consecutive nights.  Additionally, they spend Wednesday after school until Thursday morning on a fortnightly basis with their father.  Orders were made for Christmas, Easter and the June/July 2010 school holidays, but no further holiday periods were then ordered.

8. I have given particular consideration to paragraph 15 of those orders in that her Honour adjourned the final orders application to a direction hearing before a Registrar and fixed that hearing for mid-February of this year.  Whilst it is not spelt out in the orders I have a very clear direction that what was intended was that there would be a defended hearing some time before or about the middle of this year and there was no then requirement for the Court to determine September school holidays and ongoing school holidays thereafter.  That intention has proved misplaced for reasons that I do not wholly understand, but which, in part, may be the delay of the Court and the volume of work before the Court, or otherwise the ongoing evidence issues, preparations of family reports by Mr P and/or the lack of progress by the legal practitioners or the parties in giving instructions in that regard.  I carefully make no critical finding whatsoever in any way.

9. In terms of the matters before the Court today, Mr Bartfeld QC has limited the interim orders sought on parenting issues.  At the heart of the mother’s ongoing application is for the orders pronounced, by consent or otherwise, by Dessau J to be discharged.  Her ongoing scenario would be that M and R live with her and spend time, but not holiday or overnight time, with their father.  I do not determine those issues this day.  They must await a more detailed hearing upon proper evidence and an updated family report.

10. The issue upon which I heard submissions from Mr Bartfeld and Mr Dickson of counsel appearing for the father was as to the upcoming September holidays.  I have read the substantial affidavit of the mother, filed in response, on parenting issues.  In particular, I was directed to the discharge of the interim orders in paragraphs 164-171 (inclusive) of her affidavit, which deals with those issues and with the further issue of the specific telephone time at which the father can or should ring M and R.  I identify paragraph 168 thereof as a summary of her orders sought, as are more particularly outlined in her response.

11. Mr P is the ongoing family consultant.  I have been referred to his affidavit, filed 10 December 2009, and its accompanying and substantial report.  In particular, Mr Bartfeld took me to paragraphs 53 and 54 thereof, which I have carefully read.  That report was before her Honour and no doubt substantially contributed to the basis upon which orders were made on 16 December of last year.  It was there recommended that the father see the children alternate weekends from Friday until Monday inclusive.  It was recommended that the children remain primarily in the care of their mother.

12. What Mr P highlighted, however, was the ongoing issues and the intensity of feelings as between the parents.  He recommended that he remain involved with the parties and the children and fill a supervisory and reportable role.  His suggestion was that the parents consult with him on a four to six weekly basis over twelve months and he provides regular summaries to solicitors as to their progress.  He emphasised in paragraph 54 that all such meetings would be reportable and absolutely not private or confidential.  The parties have elected to maintain an ongoing professional association with Mr P, as a result whereof, he has seen them and perhaps has provided various comments or observations to the parties or solicitors.

13. I have the benefit of a brief summary report dated 28 July 2010, written by Mr P and forwarded to both solicitors.  It is exhibit “EJW6” to the wife’s substantial affidavit.  I have read that report.  It was volunteered to the Court on behalf of the wife and has been relied upon by counsel for the father.  His concerns as to the family remain and he cross-references this supplementary report to paragraph 54 of his original report.  He acknowledges that he has not been successful in achieving the goals outlined in his earlier report and concludes that the prognosis remains “poor in the extreme”.  His penultimate paragraph reads as follows:

    “By way of brief summary, the younger two seem happy with the current arrangement.  [L] is of great concern.  I would implore that efforts be made to reconnect him with his mother as soon as possible.  Again, my views are clearly outlined in my notes and I simply draw your attention to the differences in [L’s] separate presentation to me and the rapidity of the decline in their relationship (that is, with his mother) and the obvious benefit to [L] of not losing this important relationship”.

14. That is a most disturbing report and observation.  On the one hand, the two younger children are said to be, or to seem, happy with the current arrangement, which includes spending four nights overnight with their father in each fortnight and having holidays with him.  The issues of and concerning L are far more substantial, but are not before me for determination this day and I, therefore, pause and do not touch upon those significant issues.

15. The father has continued four nights in a fortnight with M and R.  That has continued post-July and the report of Mr P.  The father is the applicant in seeking to identify the six nights that he now seeks in September.  The mother is the respondent to that application, but, by her response document, has substantially increased the area of litigation, both on a parenting and a financial basis.  I make no criticism of her in that regard.  I understand that she may well have been moved to approach the Court of her own motion, but is second in time and that is perhaps merely a fact of litigation.

16. The mother has relied upon her affidavit and, as part thereof, substantial and concerning transcripts of evidence taken in phone conversations, first, as between the father and L and, second, as between father and the other children.  The first of those transcripts is exhibit “EJW11” to her affidavit.  That records a conversation on 12 December 2009 at 7.27 p.m. as between the father and L.  It has been explained to the Court that the mother recorded that conversation by placing a digital tape recorder (which was held and shown to the Court by her Senior Counsel) near to the phone.  Thus it meant that L knew that the telephone call was being recorded because it was within his vision. 

17. Initially Mr Dickson sought to take objection to the transcript on the basis of a breach of the listening or telecommunications legislation of the Commonwealth.  Upon the assurance of the mother given through her counsel that there was no direct interference with the telephone line and no bug or recording device implanted within the telephone itself, but merely recorded by way of a telephone conversation (presumably on loud speaker), then that objection was withdrawn.  I take that matter no further and have proceeded to read the transcript which is revealing of the matters raised. 

18. Mr Bartfeld has highlighted the improper, somewhat unbelievable, level of discussion and vitriol directed towards a gentleman identified as Mr F, and also the imprudent and highly inflammatory comments directed towards the mother, in particular, the reference to her “being crazy” which were repeated in an emotional and crying scene as recorded in the document.  Otherwise, the tenor and flavour of the telephone conversation is highly disturbing.  The second telephone conversation brought to the attention of the Court is exhibit “EJW2” to that affidavit.  This is a conversation likewise recorded (according to the mother) on 27 April 2010 with M and R.  Likewise, it is disturbing, influential of them, unbecoming of the father and wholly inappropriate in the content and direction thereof. 

19. Mr Bartfeld was at length to emphasise the number of repeated issues and concerns and the tenor and direction of the conversation, of course, directed by the adult.  That is apparent and falls within my overview of a disturbing and premeditated conversation.  Having made those brief observations and noting that Mr Dickson has not responded thereto because of the direction of the case, I make no other comments upon that matter.

20. I am particularly alert to the fact that L now lives with his father.  I make no comments upon that scenario, merely to record it is the fact of life as currently exists.  R and M live with their mother.  That will be the ongoing situation under the Court order and subject to all further applications.  The reality, however, is that these children should spend time with each other.  The only way M and R can spend any time with L currently, and subject to any change in order or circumstance, is for them to spend time at their father’s home with L.

21. I give significant weight to the importance of three children, brothers and sisters, spending time with each other.  As such, that is one of the reasons, and in the best interests of all children, why I will authorise and permit those six days in September to be spent by the two younger children in their father’s home, on the basis that they are, and remain, in Victoria and that the father spends very substantial time with them.

22. In making such an order, the Court must be mindful of the best interests of children and that is central to my various questions of counsel in their helpful submissions and in the approach that I have to this difficult task at hand.  The children’s interests are paramount.  That is fundamental to the operation of the Family Law Act and the approach by judges to making orders of and concerning children.  How a court determines what is in their best interests is carefully recorded in section 60CC of the Act, both as to the primary considerations in subparagraph (2) thereof and all of the additional considerations within subparagraph (3) thereof.

23. In my reading of the affidavits and carefully listening to counsel, I have regard to all relevant primary and additional considerations.  Mr Bartfeld has carefully identified the primary consideration of the need to protect children from being subjected to psychological harm or being exposed to abuse, neglect or family violence.  Having read the mother’s affidavit and, in particular, the exhibits thereto, I well understand the direction of his submission.

24. The content of the telephone discussion and, seemingly, the emotional manner in which it was conducted by the father may certainly raise those issues of psychological harm and exposure.  I make no conclusion thereon and again I repeat that Mr Dickson was not required to respond, on behalf of his client, to matters raised by the wife’s Senior Counsel.  However, I am alert to the disturbing issues before the Court that will need to be answered at a future hearing date.

25. The other primary consideration is, however, the benefit to children of having a meaningful relationship with both parents.  I do not address these comments to L.  It is, therefore, important for M and R to have that meaningful relationship with both parents and, in the context of the interim July report of Mr P, it seems to be important to him, that is, Mr P, and of necessity to the Court, to understand the importance of the children to have that ongoing relationship.

26. There is no evidence before me of such strength or intensity that would permit me, acting in the interests of the children, to interfere with the current interim orders, certainly as to these September holidays to which my focus has been wholly directed.

27. There are a number of additional considerations that, likewise, are important in the fabric of these children’s upbringing.  Their views are and would be important.  The willingness and ability of parents to facilitate a close relationship between the child and the other parent may ultimately be at the foundation of matters in this case that are both relevant and important to the children.  Likewise, the attitude of parents and the capacity of parents, as identified in sub-paragraphs (f) and (i) of subparagraph (3) of this section (s 60CC) are of significant importance.

1. Generally counsel have not otherwise addressed upon all of the additional considerations within the confines of an interim hearing on a limited issue as to the order sought by the father in paragraph 1 of his application in a case.  I emphasise, however, I gave due thought and consideration to all of those primary and additional considerations.

2. As an overview, I find that R and M’s best interests, certainly in the short term, which is the focus of this ex tempore judgment, support September holidays and I will order from 17 to 23 inclusive, with the continuation of the injunctions pronounced by Dessau J, including non-alcohol, but also with the requirement that the children be not taken out of the State.  I emphasise that is not a matter that I have independently found, but it was volunteered by the father that he would not be taking them outside of the State and that order is made not for any particular reason, but to have the children not travelling, but spending time as a family with their father and elder brother.  I am aware that on 24 September the father and elder brother head for a planned school excursion overseas and at that time M and R will be with their mother.

3. On a procedural basis, there remains alive the balance of the parenting applications which, seemingly, would need to be adjourned to a Registrar to be fixed as a defended hearing.  This matter had waited its time and had reached the point of being allocated a defended hearing on all financial and parenting matters.  That, however, was placed on hold because of the assignment of the interim hearing to me and I intend to refer all matters back to Registrar Field to reassess them and, if appropriate, to docket them to a judge to hear and determine matters on a final basis.

4. The remaining matter before me that I will shortly turn to is the financial request by the mother for a sum of $100,000 by way of an interim property settlement, but I take that matter no further in these ex tempore reasons.

I certify that the preceding thirty one
(31) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young 1 September 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………