Wester and Wester

[2010] FamCA 1228

FAMILY COURT OF AUSTRALIA

WESTER & WESTER [2010 ] FamCA 1228

FAMILY LAW – CHILDREN – Interim

APPLICANT: Ms Wester

RESPONDENT: Mr Wester

INDEPENDENT CHILDREN’S LAWYER: Ms Power

FILE NUMBER: SYC 4158 of 2007

DATE DELIVERED: 20 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 30 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT: Janice L Lindop

COUNSEL FOR THE RESPONDENT: Mr Wester representing himself

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney

Orders

1. That the mother’s application to vary the orders of 15 August 2006 is dismissed without prejudice to a further application when an expert report is available.

IT IS NOTED that publication of this judgment under the pseudonym Wester & Wester is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4158  of 2007

MS WESTER

Applicant

And

MR WESTER

Respondent

REASONS FOR JUDGMENT

the proceedings

1. On 27 October 2010 the mother filed an Amended Application to vary final parenting orders made by consent on 15 August 2006 in relation to the parties’ children:

   S born … July 1999 (11)                and

   R born … February 2001 (9).

   These orders provide that the children live with the father from after school on Monday until the commencement of school on Wednesday in each week and from the conclusion of school on Friday until the commencement of school on Monday in each alternate week.  The children live with the mother from after school on Wednesday until the commencement of school on Friday each week and from the conclusion of school on Friday until the commencement of school on Monday in each alternate week.  The school holidays are shared equally and the orders make provision for time with each parent on special occasions. 

2. The mother sought that the children live with her and spend time with the father on each alternate weekend and for half of all school holidays.  The father sought that the existing orders continue and claimed that there is no change in circumstance sufficient to warrant a reconsideration of parenting arrangements on either an interim or final basis:  Rice and Asplund 1978 6FamLR 570. This authority is so well known that it is not necessary that I recite the relevant passage in these short reasons.

3. The Independent Children’s Lawyer (‘ICL’) proposed that the children live with the mother and spend time with the father from 6:00pm on Friday until the commencement of school on Tuesday in each alternate week; each Wednesday from the conclusion of school until 7:30pm and for half of all school holidays.

4. The ICL arranged for the children to be interviewed by a social worker, Mr B, who is employed by the Legal Aid Commission of NSW.  He prepared a report dated 2 November 2010. 

5. A Magellan Report was prepared pursuant to an order made on 20 August 2010.  This report detailed allegations by the mother that the father had masturbated in front of the children and that they had accessed pornography on his computer.

6. A Joint Investigation Response Team refused to accept this referral and the case was closed.  During the interim hearing the mother specifically withdrew her allegations of sexual impropriety on the part of the father. 

7. Inferentially, the change in circumstances identified by the ICL was the “clear and cogent wishes” expressed by the children to Mr B.  In relation to S he reported: 

   “7.      [S] told me she does not like the current arrangements of spending time with each parent.  When asked ‘how is it for you?’ [S] responded ‘I would prefer it if I was with Mum more.  I want to be at Mum’s Monday and Tuesday and Thursday and for Wednesday I will have dinner at Dad’s and Mum will pick me up.  I don’t want to go to school from Dad’s.

   8.        Effectively [S] is wanting to spend every second weekend at her father’s and is only wanting a mid-week dinner at her father’s each Wednesday rather than a sleepover at his home through the week. 

   9.        [S] told me that her father is ‘not as organised’ as her mother and she considers she is unable to rely on him as much as her mother.  In her words ‘he is not very organised, not organised at all really’.  When I asked [S] how long this has been a problem for her, she said ‘Once I was really looking forward to gong on a Guide thing and he didn’t remember and I didn’t.  We stay up late at Dad’s.  I slept in.  Mum tried to tell me, she tried to ring me, that sort of thing.  It is something you would expect from a dad’.

   10.      When asked if either parent had attempted to influence her viewpoint on the time she should spend with each she said ‘Mum hasn’t put pressure on me – it is more Dad who does that.  I don’t know whether this is blackmail – I was telling him how I didn’t feel he was very organised.  He asked me why.  I told him about the Guide thing.  He said if you live with Mum more you won’t be able to go to Guide things and parties because I will have to spend time with him.’

   13.      Apart from her concerns about her father’s apparent lack of reliability and organisation, [S] said she fundamentally enjoys the time she spends with her mother more.  [S] spoke in quite an animated way about the time at her mother’s.  She said: ‘I feel much more comfortable at Mum’s house than at Dad’s house.  At Mum’s place we usually do stuff together all of us.  Mum, [Mr C], [R] and me.  At Dad’s we feel more separated in the house.  I do enjoy doing things with Dad but not as much as I do at Mum’s.  It is more exciting at Mum’s.  We do things – they are all planned and more exciting.’

   16.      Perhaps not surprisingly, when asked to rank her certainty about wanting to spend less time with her father, using a 10 point scale with 10 representing ‘very certain’ and zero representing ‘not sure at all’, [S] said she was ‘8 or 7½ out of 10’ sure that she wanted to spend less time with her father.”

8. In relation to R Mr B reported:

   “22.     Using the genogram developed with [S’s] earlier assistance, [R] was asked to rank his ‘sense of closeness’ using a hierarchy of closeness.  As in the case of [S], [R] declared a strong preference for his mother, whom he placed in first position, followed by [S], then the mother’s partner [Mr C] and his ‘nanny, poppy and grandma [T]’.  He said after this ‘Dad sort of last.  We don’t spend that much time with him.  I am very close to [the dog] ([R’s] fox terrier cross) pretty much more than Dad’. 

   23.       [R] told me despite placing his father last on his hierarchy that he mostly likes the current 50/50 parenting arrangement.  He quickly added ‘I like it but I would like one more day with Mum’.  He continued ‘I would like to sleep over an extra night at Mum’s and wake up there.  Tuesday night would be best as Wednesday is a really confusing day.  It is more a problem getting to school and crossing the road.  But I don’t care what day it is – I would just like one more day with Mum’.

   24.       When I asked [R] a little more about his reasoning for wanting more time at his mothers he said ‘Dad’s dating a lot of women and pays a lot of attention to them not us.  In Year 3 and most of Year 4 I wanted half with each but now I have changed my mind and I want one more day with Mum.  I said that to my solicitor.  I told Dad I wanted one more day at Mum’s and he said ‘no you don’t mate’.  I am worried Dad will be really mad and angry.  He will kill me.’

   29.      After this discussion I asked [R] about his certainty about wanting to spend more time with his mother.  Using a 10 point scale, [R] told me he was ‘9 out of 10’ certain he wanted to spend an extra day at his mother’s.  He said ‘I am a little bit scared of hurting Dad’s feelings but I am very sure I want that.”

9. The father challenged Mr B’s expertise and objectivity.  I was not told why Mr B would favour the mother or, to use the father’s actual words, be “tremendously biased”.  I have no reason to think that Mr B did other than interview the children professionally and appropriately, then accurately report their views.

10. On the other hand, Mr B recognised the limitations of his assessment.  When dealing with issues of potential difficulties in R’s relationship with his father he stated:  “These judgments are always difficult to make however without a detailed family assessment involving interviews with the parents.”

11. There were many disputed allegations of fact in these proceedings.  In the context of an interim hearing it is impossible to make any findings in relation to these issues.  The question, ultimately, is whether the children’s expression of views to Mr B warrants an interim reconsideration of parenting arrangements.

12. I appreciate that the mother made a number of complaints about the father’s behaviour.  These complaints will be fully explored and investigated during the final hearing.  The court will then have the assistance of a full assessment by a single expert or Family Consultant. 

13. It may well be appropriate for the interim arrangements for the children to be reconsidered when an expert report becomes available.  This decision should not be interpreted as a bar to further consideration of interim arrangements.  My difficulty is that there may well be countervailing considerations to the children’s views.  I am not inclined to vary the existing parenting orders, on an interim basis, at this stage.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on December 2010.

Associate:     

Date:              20 December 2010