Watson and Watson (No 2)

[2010] FamCA 1255

FAMILY COURT OF AUSTRALIA

WATSON & WATSON (NO. 2) [2010] FamCA 1255

FAMILY LAW – CHILDREN – Holiday time – Injunctions

APPLICANT: Ms Watson

RESPONDENT: Mr Watson

FILE NUMBER: MLC 5375 of 2009

DATE DELIVERED: 10 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfield & Ms Vohra

SOLICITOR FOR THE APPLICANT: Maeve O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Mr Davis

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

1. That for the purposes of the 2010/2011 long summer school holiday the husband shall spend time with the children M born … January 2003 and R born … October 2004 as follows:

   (a)From 10.00am Saturday 11 December 2010 until 10.00am Wednesday 15 December 2010;

   (b)From 10.00am Wednesday 22 December 2010 until 3.00pm Christmas Day 2010;

   (c)From 3.00pm Boxing Day 2010 until 10.00am on Wednesday 29 December 2010;

   (d)From 10.00am on Wednesday 5 January 2011 until 10.00am on Wednesday 12 January 2011; and

   (e)From 10.00am Wednesday 19 January 2011 until 10.00am Wednesday 26 January 2011.

2. That during the 2010/2011 long summer school holidays the children shall otherwise live with the wife.

3. That the children shall spend time with the husband for one half of the Easter 2011 school term holiday and unless otherwise agreed the first half.

4. That the children shall spend time with the husband for the June/July 2011 school term holiday for half of such holiday being from 10.00am on the first Saturday until 10.00am on the next Saturday AND then from 10.00am on Saturday 9 July 2011 until 10.00am on Thursday 14 July 2011.

5. That for the purposes of the husband’s holiday time in paragraphs 1, 3 and 4 of these orders the husband’s time pursuant to paragraph 3(e) of the orders made on 16 December 2009 shall be suspended at the commencement of the school holiday and recommence in accordance with the pre-existing cycle at the conclusion of the school holiday.

6. That the husband shall not allow any of the children to be driven in the front seat of any motor vehicle, and shall ensure the children are properly restrained when driving.

7. That the husband shall abide by all road rules when he drives with the children in any motor vehicle.

8. That paragraph 6 of the orders of 16 December 2009 shall be varied such that if changeover occurs at the gate of the wife’s residence, the husband shall use the intercom to alert the wife that he has arrived.

9. That the orders of 16 December 2009 shall otherwise remain in full force and effect.

10. 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.

DOCUMENTS – BY CONSENT

1. That on or before 14 February 2011 the husband shall provide or cause to be provided to the single expert valuer M Firm for the 2010 financial year the documents listed in the wife’s Application in a Case filed 12 November 2010 paragraph 4.

2. That the husband shall pay or cause to be paid any expenses associated with obtaining any updated valuations that may be required from the O Group at first instance and the ultimate payment of any such updated valuations be reserved.

3. That all extant interim applications shall be otherwise dismissed.

4. That the applications for final orders shall be adjourned for directions before Registrar Field on a date to be advised in March 2011.

5. That the matter shall be placed in the docket of Dessau J.

6. That the husband shall pay the wife’s costs of $3,000 for the applications heard this day, with a stay of 14 days.

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

MS WATSON

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

1. On 16 December 2009, I made orders for the husband to spend time with his children M, now seven and a half, and R, now six, on alternate weekends from Friday to Monday, and on alternate weekends overnight, and for half of the Easter school holidays and half of the July school holidays in 2010.

2. On 1 September 2010, Young J made orders for him to spend six nights with the children in the September school holidays. 

3. Today, the father seeks orders for holiday time over the upcoming Christmas school holidays.  The mother seeks orders that any time spent with the children now be fully supervised by a paid supervisor.  It is submitted for the father that the mother simply persists in a campaign for supervised time, effectively, I take the gist of the submission, to undermine his relationship with the children or to constrain it.

4. He points to the serious issues alleged by her, that were told to Mr P in the course of the Family Report prepared about this time last year, in which Mr P ultimately proposed unsupervised time.  He points too to the serious issues alleged by her before Young J when his Honour made the holiday contact orders sought by the husband in September of this year. 

5. I would be concerned that the wife was blindly persisting with serious allegations of the husband’s excessive use of alcohol, unsafe driving, and abusive, threatening behaviour to her, amongst other things, except that today I have found proven a contravention application against him for drinking alcohol when the children were in his care on 18 September 2010, just several weeks after Young J had reminded him that my orders of December 2009, restraining from so doing, remained in force. 

6. The short version surrounding that contravention, for these current purposes, is that the wife had the husband observed by private investigators on several occasions.  Only one of those investigators was called this morning.  The others were going to be very delayed in coming to Court even though they were the applicant’s witnesses.  Mr Bartfeld, Senior Counsel for the wife, proceeded without them, choosing not to seek an adjournment of the proceedings after an indication that I was not prepared to wait for them to attend Court for up to several hours today.  The choice was either to go ahead, or to have the matter adjourned, and he chose to go ahead. 

7. Accordingly, although there was further evidence of covert alcohol consumption on the part of the husband, I have not heard that evidence challenged. 

8. Similarly, there was what would amount to troubling evidence of the husband driving at greatly excessive speed, and erratically, on a freeway on two separate occasions, each time with the parties’ seven year old son in the front of the car.  Again, I have not had the opportunity to hear that evidence challenged. 

9. The husband concedes a problem with alcohol and depression in the past, and I recall that after separation, he spent several weeks, unwell, in a Clinic.  Since this case first started, the wife has nursed concerns about his behaviour.  If her evidence is accepted at trial, her concerns appear to be based on real and unpleasant experiences of the husband’s behaviour when drinking to excess in the past.

10. But I note equally that since this case first started, the husband has claimed that those problems are well behind him, and that he is a highly functioning professional who simply could not perform the very fine precision work for which he says he is known as an expert, if he were drinking and thus had an unsteady hand. 

11. In his December 2009 Family Report, Mr P considered supervision.  He referred to the reports of the husband’s treating psychiatrist, Dr H, and the forensic psychiatrist Dr E, who also prepared a report for the Court.  Mr P considered the reports as being positive about the husband’s mental state at the time. 

12. Mr P said that the issue related to how much weight should be attributed to the husband’s proclamation of change at that time, given the past problems.  At paragraph 53, Mr P said:

    Obviously, the best outcome is for these concerns to be completely invalidated and for the problems of the past to remain in the past.  However, this also entails a somewhat naïve and idealistic view.  There can be no escaping the history of past concern.

13. Subject to managing the evidence that the parties still require in this case, I am keen for the case to be listed in the first half of next year, and for the opportunity to have all that evidence tested, so that what can be evaluated is the claims on both sides.

14. As with final orders, in making interim orders, the children’s best interests are the paramount concern of the court.  Section 60CC(2) and (3) set out matters to be considered.  The children’s safety and needs are obviously extremely important.  So is the need to maintain meaningful relationships with their parents, as is their parents’ capacity to facilitate such relationships.  I am not saying they are the only issues to be considered in this case, but they are the significant ones for the current purposes. 

15. Mr P has made it clear that the children need the relationship with their father.  The private detective this morning said it was clear that the children were happy and sharing fun with their father at the lunch, when neither the father nor the children knew that they were being observed.  For their time to be prescribed or proscribed by paid supervision, to become what would most likely be day time only and, quite probably over the holiday period, intermittent, would greatly reduce the enjoyment the children have in their father’s company and would interrupt the relationship that they enjoy with him. 

16. I need to assess whether the children’s safety demands that interruption.  It is always difficult with untested evidence.  I am satisfied that the husband had at least one mouthful of wine, against court orders.  He has been dealt with for that.  I have no evidence of him being drunk or drinking to excess, or of the children complaining, or concerns of his care of them or any concerns when observed by anyone.

17. The subterfuge with which he may have taken wine, if the evidence of the investigators is accepted once cross-examined, is naturally a concern.  But what I cannot tell at this stage is whether, if there was subterfuge, it depicts an ongoing battle with alcohol, or an arrogant disregard of court orders. 

18. Today the husband will enter a six-month bond to be of good behaviour.  I have explained to him the risks of a breach of that order.  He can then be dealt with more harshly.  But the stakes for him are higher in terms of the time he would then be permitted to spend with his children, or the time that he would not be permitted to spend with his children, the restraints that would be put around any such time, and even in terms of his professional reputation.

19. I am naturally concerned about the observations of his driving.  I do note, however, that not only is that evidence untested, but it is certainly not evidence of any expert nature, either.  I cannot put enormous weight on a layman’s attempt at clocking speeds.  But the concern exists, and I propose an order that neither child travel in the front seat of the car with the husband, and that the husband must abide all traffic rules.

20. Of course, that is really only providing that he comply with the law, but I want the extra onus on him.  He must now realise that he can be watched at any time.  He must know that a breach in this regard can be dealt with by this court as well as the possibility of facing charges in the Magistrates Court, and he must again know that today’s bond hangs over his head. 

21. To make orders that the husband cannot drive the children would severely limit their activities in holiday time.  To order that his partner or another person must drive is inappropriate when I know little about them. 

22. So he is now on notice.  I do not propose making his time with the children supervised.  I do propose adding these orders.  I still did need some submissions about the structure of school holiday time.  There should be holiday time.  I am absolutely satisfied of that.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 10 December 2010.

Associate: 

Date:  10 December 2010