Webber & Budd

[2008] FamCA 378

FAMILY COURT OF AUSTRALIA

WEBBER & BUDD [2008] FamCA 378

FAMILY LAW – CHILDREN – Interim proceedings – Notice of Risk of Abuse filed by mother – whether children at risk – no risk of abuse found – orders for management of risk by both parents

FAMILY LAW – CHILDREN – best interests of children – with whom the children should live and spend time pending finalisation

Family Law Act 1975 (Cth)

APPLICANT: Mr Webber

RESPONDENT: Ms Budd

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd

FILE NUMBER: CAF 618 of 2004

DATE DELIVERED: 29 May 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 27 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Jane Godtschalk

SOLICITOR FOR THE APPLICANT: Phillip Davey

COUNSEL FOR THE RESPONDENT: Gavin Howard

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd

Orders

IT IS ORDERED THAT:

1. All previous orders are discharged (with the exception of the order that the children communicate with their father on the telephone) and in place the following orders are made.

   (a)Until further order, the mother will have sole parental responsibility for the children, subject to Order 1(b). 

   (b)The mother will nevertheless, consult the father about all major matters relating to the children’s lives and in particular matters relating to S’s health.  The mother will inform the father on a regular basis of any treatment other than routine treatments in connexion with his diabetes that she has undertaken for S and of any changes in his condition.  She will inform him about any additional information she has in relation to S’s treatment by email, phone or communication book. 

   (c)The father will for his part, make sure the mother is informed of what activities and food S has partaken in during the time that S is with him, any treatment that he has carried out and will carefully and reasonably relate to her any changes or conditions of the child relevant to enable the mother to continue his care after handover and to ensure the best possible management of his health.

2. Otherwise, each of the parents will exercise responsibility for the children when they are in his or her care.

3. The children will live primarily with their mother in the central coast area of New South Wales but will spend every second weekend with their father from after school on Friday until Sunday evening.

   (a)Unless the parties otherwise agree, the changeover will occur at B at a place to be agreed between them and at a time to be agreed between them.

   (b)There is liberty to apply in relation to those details if the parties are unable or unwilling to reach agreement.

4. In addition, the parties will spend time with their father for not less than one half of the coming school holidays. The parties will reach agreement about the period that the children will spend with their father but if they are unable to do so, there is liberty to apply for a determination by me about the precise time involved.  The mother will be responsible for the delivery of the children to the father either at B or in Canberra as the parties may agree at the beginning of the period that the children spend with their father and the father will return them to the mother either at B or in her home town as the parties may agree.

5. The father is hereby restrained from watching E while she is on the toilet.  The father will not have E in bed with him pending a final hearing and will not permit E to sleep in his bedroom and will not refer to her by inappropriate names including “Evil [E]”. 

6. The father is further ordered to attend upon Dr L as soon as this can be arranged or upon other members of S’s diabetes treatment team for the purposes of obtaining all relevant information relating to S’s treatment.  The father will carry out such treatment regularly and diligently and will if necessary seek assistance from the diabetes team if he has any difficulties.  Alternatively, if a member of the team is unavailable, the father will if necessary seek assistance from the mother notwithstanding any order to the contrary about contacting the mother.

7. Each of the parties will share all relevant information about S and his treatment at all reasonable times.

8. The matter is otherwise adjourned to a date to be nominated in approximately four weeks time for the purposes of directions to be given for the material to be put before the court in the finalisation of the Less Adversarial Trial, to be sometime approximately one month thereafter.

9. The interim matter is removed from the pending cases list.

10. The application filed by the father in relation to contraventions are adjourned to the directions date referred to previously for further directions as to their final determination.

IT IS NOTED THAT:

1. In relation to the injunctions imposed in Order 5, they are done so in circumstances for greater caution and not as a determination the father has engaged in such conduct in the past nor is likely to do so in the future.

1. Publication of this judgment under the pseudonym Webber & Budd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 618  of 2004

MR WEBBER

Applicant

And

MS BUDD

Respondent

REASONS FOR JUDGMENT

1. Proceedings in this matter were concluded before me on an interim basis on Tuesday 27 May 2008.  They had begun before me in relation to various applications that the respondent be dealt with for contravention of orders of this Court without reasonable excuse and for what amounted to an interim application about arrangements that were to occur in relation to the children, S born in November 1999 and E born in August 2002.  During the initial part of the proceedings it was agreed by Counsel for the father that the application for contravention would be postponed and that the issue of the interim arrangements ought to be determined by the Court. 

2. The interim arrangements sought by the father are effectively encapsulated in the amended response to the initiating application by the father which was handed up to me in Court.  These in summary seek orders that the children be returned to Canberra.  The orders further sought that the children spend from Friday after school until the following Tuesday morning on each alternate weekend with their father and on the alternate Monday overnight until the Tuesday morning and for half the school holidays.  The orders also sought that the mother be prevented from taking the children to any medical practitioner or health professional without the written consent of the father or order of the Court.

3. The mother sought to remain in the New South Wales central coast area where she was living with her partner and that the children remain with her.  Initially she sought that the children spend no time with their father or very limited time with their father pending a finalisation of matters between the parties.  This arose from certain allegations which the mother made in relation to the father’s conduct with E and from her concern that the father was unable or unwilling, or both, properly to care for S in a way that would keep him safe from the consequences of his condition of diabetes. 

4. During the course of the proceedings Mr Howard on behalf of the mother conceded that the mother would not be pursuing the allegations about E (at this point) and consequently agreed that the arrangements about E would continue except that she would need to be returned from her father to her mother the Sunday evening of weekends that she was with her father.  This was essentially because the children are now at school in New South Wales.  He sought on behalf of the mother that S would only have time with his father if that time was supervised by a person appropriately trained in diabetes management and care.  This related to the mother’s perception that the father failed properly to deal with S’s diabetes condition. 

5. Her concerns in this regard were in part set out in her affidavit filed on 7 May 2008. 

6. I accept that parents who are involved in care for their children who have diabetes acquire a level of expertise in many cases which is superior to even some medical professionals.  However, the mother’s allegations as contained in her affidavit were not sufficient to satisfy me, as her Counsel suggested they should, that there must be an unacceptable risk for S to spend time with his father. 

7. I required the parties to assist me by obtaining the evidence of Dr L, a paediatric endocrinologist who has been S’s treating Doctor for some years. 

8. Dr L gave evidence by a telephone on 27 May 2008 and affirmed the complicated nature of the treatment of S’s condition.  He had (or so he thought) only part of the material of the parties before him which related to the treatment and the diet of S during times he was with either parent.  However, his evidence was clear, cogent, careful and qualified.  What was not possible to derive from his evidence, without any supporting external evidence about factors such as where S was on any particular day, was any conclusive attribution about any failure on the part of the father properly to care for S.

9. Nevertheless, what Dr L said in his careful and measured way was that S’s mother was an involved and caring parent and was both familiar with and very dedicated in her administration of the appropriate treatment for S.  The doctor’s contact with the father had been significantly less and in fact had been non-existent for some months prior to the hearing.  It appears that the father had attempted to contact Dr L not long before the hearing.  From this an inference might be drawn that this attempt was forensically related rather than medically, but at this point in an interim hearing I am not prepared to draw that inference conclusively.

10. It is clear however, that the father has not pursued S’s treatment in the past as rigorously as he might.

11. However, as the Independent Children’s Lawyer pointed out, it is odd that there is something like a two year gap in the materials before the court of the history of S’s diabetes and its treatment and its consequences.  As the Independent Children’s Lawyer also points out, that the mother had not sought previously to restrain S’s father’s association with him on this medical ground. 

12. In intricate proceedings such as these in which there are various applications and cross applications, it is sometimes difficult to be clear about when parties have intervened in various ways.  It is also difficult to follow precisely whether a party should have made a move to restrict some activity at an earlier point.  If, as appears to be the case, when the finalisation of the primary matter is before the Court, the mother wishes to pursue the line that the father is not capable properly of caring for S, then further evidence will be necessary and a more detailed examination of the chronology of the parties will be required.

13. It suffices at this point to indicate that if the father had failed to hear any previous wakeup call about his need to be involved profoundly, diligently and completely in the treatment of S’s condition, the alarm bells (at the very least in a forensic sense) would have rung during the course of the current proceedings.  I believe it is unlikely, given his vigorous pursuit of this matter over a long period, that he would now reject what is no longer a hint but an admonition to obtain such assistance as may be required to enable him to be knowledgeable about and to be able to properly administer the requisite treatment.  I believe that it is probable that his partner will also obtain such training.

14. Put at its highest, the mother’s case would amount to saying that on the basis of her evidence, the father’s past history is such that I should draw the inference that he will not care properly for S and that his failure properly to care for S will result in the development of serious medical conditions, which may in the words of her Counsel, possibly endanger the life of S.  

15. While I do not pretend at this point to have a complete recall of all of the evidence of Dr L, I am not satisfied from my recollection of his evidence that there is any reasonable suggestion that with good will and devotion on the part of the father, there is likely to be any significant and immediate danger for S.  I accept that if his blood glucose levels were to be elevated to an extreme level, he could become comatose and as Dr L points out, could possibly die.  There is nothing in the evidence before me that his levels have reached that critical point and no question was asked of Dr L about the details in relation to this potentially tragic event.

16. Moreover, the mother does not prevent S from going to school where he is away from her for some time.  She does not prevent him having time with other people (so far as I am able to ascertain) and it appears that she does not require S to have what amounts to a perpetual diabetes team guide or guard. 

17. I am not prepared to hold or to infer at this point that the mother’s concern about S’s diabetes is motivated by forensic tactical reasons.  Equally, however, I am not prepared to infer or hold at this point that it is likely that if I were to order that the father pursue and undertake appropriate training about S and if I were to order that the mother were to ensure that the father is informed of S’s condition at any point and the appropriate condition that she believes is necessary, that S will be in any physical danger when he is with his father for the times that have previously been ordered.

18. I come to this determination in the knowledge that provided the parties comply with directions to be administered in due course to enable the matter to be prepared for a finalisation of the Less Adversarial Trial, that finalisation could occur within a relatively short period.

19. The circumstances of the parties have been further complicated by the fact that notwithstanding the orders that presently apply to them, which follow[1], the mother moved to join her partner in the central coast area in New South Wales in January this year.  She advised the father that she was doing so.  She attributed the need to move to a leg injury she had suffered from and it was asserted (and so far as I am able to ascertain, not contradicted) that the father agreed that she might take the children and go but on a temporary basis only.  His consent to her moving was far short of the “acquiescence” asserted by Mr Howard on the mother’s behalf.

20. As is apparent from these proceedings, the mother did not return to Canberra, does not want to return to Canberra and has effectively settled in New South Wales having enrolled the children in the local school.

21. The father wants them returned to Canberra with their mother, at least at this point, and ultimately he wants them to live primarily with him.  There is some level of contradiction in the submissions made on his behalf about this matter as well. 

22. He is concerned that the children’s schooling is disrupted by their being moved to New South Wales but seeks that it be disrupted again pending a final hearing.  As I indicated during the trial, I am not prepared to make an order about that given that the may only be a relatively short period until final orders can be made.  Having dealt with those matters therefore, I turn to the approach that I ought to have in relation to any matters relating to children orders, on an interim basis. 

23. Although there is some suggestion by the father that there should be an order for equal shared parental responsibility, it seems to me that such an order would be quite inappropriate in an interim matter and unless there were a substantial change in the nature of the parents’ attitude towards each other, it may well be difficult for me to make such an order finally. 

24. As the Family Law Act 1975 prescribes, I must regard the children’s interests as my paramount consideration.  When I am able to consider all of the evidence in the finalisation of the Less Adversarial Trial I will be in a better position to determine the possibilities there might be for the parents to be able to share some aspects of parental responsibility. 

25. There is little doubt that there should be a sharing of that responsibility, but it is extremely doubtful that these parents will ever be able to equally share responsibility.  Equal shared responsibility implies and requires a level of cooperation and commitment to the children which at present neither of these parents is prepared to make at the expense of the dispute that they still maintain between themselves.  I say that without attributing blame to either party at this point and without any intention of attributing blame in the long run either. 

26. The plain fact of the matter is that parents who are unable properly to communicate and consult with or to inform each other are totally unable to act in the cooperative way that is reasonably implied by the concept of equal parental responsibility.

27. That of course does not mean that the parents or either of them can operate unilaterally and without consultation.  It is however, an acknowledgement of the relative impossibility of a cooperative and effective relationship between both parents on an equal basis for the benefit of the children.

28. If I had determined that it was in the children’s best interests that the presumption would apply, it would be necessary for me to consider as required by the Act whether or not the children should spend equal time with the parents or significant and substantial time with the parents. 

29. The finding I have made at this point that there should not be equal shared parental responsibility would not necessarily preclude such an order being made in any event in appropriate circumstances.

30. However, these are not appropriate circumstances.  Although Mr Howard was at pains to submit to me that the mother’s move to New South Wales did not constitute a “relocation” in the way in which the term is ordinarily regarded, the distance between the central coast area and Canberra means that there is no reasonable basis upon which the children could share time between the parents equally. 

31. They could not reasonably attend the same school with any measure of convenience.  In addition it would be very difficult for them to share substantial time with one parent while living primarily with the other.  There will even be problems about the children’s weekend activities given the distance between the parents.

32. Nevertheless, it seems to be the case that the parents have chosen, or at least the mother has chosen and the father has chosen in a different way, to live some distance apart and in those circumstances the final orders that I make (to the extent that there is any such thing as final orders in children’s matters) will have to involve the children living primarily either with their mother in New South Wales or their father in Canberra.  This means that in essence, the children will have to spend weekend time with the parent with whom they are not living and will be precluded from having mid week overnight time.  

33. It may be necessary to make some form of adjustment during the period of school holidays to compensate for this.  When I say compensate, I do not mean that there is some need for there to be a mathematical adjustment of time with a parent so that there is some approximation of equality or substance. 

34. It is neither required by the Act nor by common sense that the children must necessarily benefit from spending some precisely calculated equality of time with each of the parents.  More important in each case in my opinion, is the nature and quality of the relationship that the children have with each of the parents and the development of the meaningful relationship said to be a primary consideration by section 60CC(2)(a).

1. The parties themselves will need to give careful consideration to this matter and I will no doubt be guided by the advice of the family consultant as to what is appropriate for the children and their ages and possibly, depending upon the parties views about the matter, by further guidance from another expert.  However the evidence must of necessity be within a relatively narrow compass. 

2. I pause to interpolate that one of the reasons why I stood this matter over when it was first before me was to enable the children to talk to a family consultant.  The family consultant is Ms G who reported that the children were happy to spend time with their father and this confirmed that there were no direct impediments from the children themselves to the sorts of orders that presently exist. 

3. This is a credit I hasten to add, not only to the father with whom there is obviously a relationship of affection and care, but also for the mother, who because of her very significant concerns and perceptions about the father (and what he has done or might have done), might well have, in the vernacular, attempted to “poison the children against their father”.  Although Ms Godstchalk on the behalf of the father would have me believe that this is evident from her actions, the mother’s actions are equally consistent with a concerned parent, even if the evidence so far does not supply the basis for her concerns.  Moreover, the children’s attitude to their father is indicative of her maintaining at least to some extent, an appropriate encouragement of their relationship with their father.

4. It will be important in the course of the finalisation of the proceedings for me to hear from the mother about her approach to the matter and to be able then to form an opinion about the genuineness with which she might encourage a meaningful relationship between the children and the father. 

5. In reaching a conclusion about what would be in the children’s bests interests even on an interim basis, the matters under section 60CC must properly be taken into account and in this regard I take account of the views expressed by the children to Ms G, the fact that there is at least so far as I am able to ascertain in the proceedings thus far, a loving relationship between the children and their father and between their father and the children. 

6. I do not believe that the mother is likely to be willing to happily encourage and facilitate a close and continuing relationship between the children and their father, but I accept that she has, as her counsel has pointed out, for some time facilitated that relationship notwithstanding her personal reservations and the allegations of her recent contraventions.  The father at this stage has had a largely reactive role in the evidence about these matters and it is difficult for me to form any conclusion about his willingness to encourage the children in their relationship with their mother. 

7. I note that his application for final orders, or perhaps more accurately the orders that he is seeking finally, would mean that the children would live primarily with him.  This indicates on his part a view of the mother and her ability to care for the children which will also need to be explored to some extent in the final hearing.

8. In the short term, I am not prepared to alter the children’s current arrangements, notwithstanding the unilateral and inappropriate nature of the mother’s quasi-permanent move to New South Wales.  If there were to be any substantial delay in the finalisation of the matters between the parties I would give very careful consideration to an order that returned her and the children to Canberra at least until all the matters in dispute could finally, so far as these proceedings are concerned, be resolved.  Given the estimated shortness of the period until finalisation, the fact that the children appear to be comfortable and settled in their present environment and the fact that they have lived primarily with their mother for some time, I am of the opinion that it is better that the children remain where they are, at least for the time being. 

9. That in no way pre-empts the final decision between the parties, but the parties, and in particular the mother’s decision to move to New South Wales, has meant that options that might have been open if both parents were living in Canberra, will no longer be open in the finalisation of the matter.

10. There are undoubtedly difficulties about the time the children spend with each of their parents, their travel and some of the complications arising in relation to school.  For example, if as I propose to make an order that the children spend every second weekend with their father, that weekend will need to end on Sunday night.  This will reduce, in part, the time that the father would otherwise have spent with the children and it seems to me that this should be adjusted to some extent during the forthcoming school holidays which will occur probably before the matter comes to a finalisation. 

11. The mother’s case has largely been predicated on the incapacity of the father properly to look after S.  During the course of these proceedings for this hearing only at least, the allegations about E were withdrawn (at least on the basis that I had indicated I would make orders that would enjoin the husband from behaving the way in which the wife asserted even though the husband denied that he had in the past done so).

12. I have analysed above my views about the father’s potential capacity properly to care for S and I do not propose to repeat them.  In my opinion, there is not an unacceptable risk at this point for S in being with his father.  If any event should occur which suggests that there is such an endangerment for him, then either of the parties or the Independent Children’s Lawyer has leave to restore the matter urgently to my list.

13. I should indicate that I am concerned in part about the attitude of the father to his responsibilities as a parent.  This is a matter which no doubt the mother will urge on me with more vigour in the finalisation proceedings.  Nevertheless, I am not satisfied that what the father has not done is necessarily indicative of an overall attitude and in fact his persistence in these proceedings notwithstanding the time and expense and the difficulty and emotional commitment that that represented is in part reflective of an attitude towards the children which suggests that he is determined that he should play his part in their lives.

14. The other matters under section 60CC are not matters which are relevant to take into account at this point.

15. In all of those circumstances, it seems to me that the balance is that the children should remain where they are at least at this point.  They should spend every second weekend with their father except for the school holidays where they should spend at least one half of the time with him.  It would be appropriate that the parties reach agreement about some extended time during the holidays for the children to be with their father but if they are unable to do so I will make the determination in the course of the next few days.

16. The mother has no reasonable basis for failing to continue with the telephone contact between the children and their father.  There was already an order in existence requiring this and I simply affirm that that order is to continue.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  29 May 2008

[1] Endnote