WILLIAMS & WILLIAMS

[2012] FamCA 1034

FAMILY COURT OF AUSTRALIA

WILLIAMS & WILLIAMS [2012] FamCA 1034

FAMILY LAW – CHILDREN –Interim parenting Order– Where there is a status quo or well settled environment, unless there are protective or significant risks for the children, Court to follow structure of the Family Law Act 1975 (Cth) and consider equal or shared involvement by both parties in care arrangements of the children – Where there is a week about arrangement in place – Where both parties contend to be the primary carer giver – Where the Mother is suffering from ill health and post-traumatic stress disorder – Children to spend time every alternate weekend with Mother and on the off week, to have mid-week contact – Mother to have use of one of Father’s cars but, due to ill health, car not to be used to transport the children.

APPLICANT: Mr Williams

RESPONDENT: Ms Williams

FILE NUMBER: SYC 6952 of 2011

DATE DELIVERED: 28 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 28 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Michael Lynch Lawyers

COUNSEL FOR THE RESPONDENT: Ms Carew of Counsel appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim, Lawyers

Orders

IT IS ORDERED THAT:

1. The interim property, spousal maintenance and costs proceedings be adjourned to the Judicial Duty List at 10.00 am on 18 February 2013 at the Brisbane Registry of the Family Court.

1. Leave is given to the parties to inspect and copy the following subpoenae directed to:

   a.  B Hospital;

   b.  C Hospitals;

   c.  D Hospital;

   d.  E Hospital;

   e.  F Clinic;

   f.  G Hospital;

   g.  H Hospital; and

   h.  I Centre

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, J born … April 1998, K born … May 1999, L born … November 2002 and M born … October 2004, live with the Father.

1. The Mother and Father shall have equal shared parental responsibility for the children.

1. The children spend time with the Mother every alternate weekend from after school

   Friday until the commencement of school on Monday.

1. The week the children do not spend the weekend with the Mother, the children to spend time with the Mother from after school Wednesday until the commencement of school on Thursday.

1. The Father deliver the Toyota … motor vehicle to the Mother within forty-eight (48) hours of today’s date and unless otherwise agreed in writing between the parties, the Mother shall have the possession and use of that vehicle and the Father shall do all things necessary to keep the said vehicle registered, insured and maintained.

1. The Mother will not drive the Toyota … motor vehicle or any other motor vehicle with the children as passengers.

1. The Father to file response material in relation to the Mother’s property, spousal

   maintenance and costs issues within twenty-one (21) days of today’s date.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and

   notations be made in terms of the document titled “Minutes of Consent” sealed and

   attached hereto.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 “Parenting orders –

   obligations, consequences and who can help”, a copy of which is annexed to these

   Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams & Williams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

MINUTES OF CONSENT

1. Independent Children’s Lawyer:

   (a)That pursuant to s 68L(2) of the Family Law Act, the interests of the children J born … April 1998, K born … May 1999, L born … November 2002 and M born … October 2004 (the children) be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children's interests.

   (b)That forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

   (c)That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

   (d)That within forty-eight (48) hours of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

2. Expert psychiatric evidence:

   (a)That forthwith upon the making of these orders, the parties do all necessary acts and sign all documents as may be necessary to appoint psychiatrist Dr N as a single expert pursuant to Rule 15.45 of the Family Law Rules 2004 to prepare a report in relation to the psychiatric health of the parties and in relation to this:

   (1)By 30 November 2012, all necessary documents and written instructions shall be provided to the single expert, such documents and written instructions to be as agreed between the parties, and in the event of dispute, shall be as directed by the single expert.

   (2)That the father meet payment of the costs of preparation of the single expert’s report with the mother’s half share of those costs to be taken into account as part of her final property settlement.

   (3)The report is to deal with all matters considered relevant by the agreed expert, including:

   (A)QML Testing of both parties;

   (B)The psychiatric health of the mother and father and what, if any, treatment is recommended;

   (C)Whether the mother’s focus on the children’s health is contrary to their best interest;

   (D)The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs;

   (E)The need to protect the children from physical, sexual and psychological harm and in particular, the nature of the risks associated with the mother’s future care of the children with or without assistance;

   (F)The maturity, sex, lifestyle and background of each parent;

   (G)Any recommendations as to therapeutic assistance for the parents and or children thought to be appropriate.

   (4)Doctor N has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

   (5)The parties shall attend all necessary appointments for the preparation of the report.

3. Family Report:

   (a)That the parties do all acts and sign all documents as may be necessary to appoint Mr O as single expert pursuant to Rule 15.45 of the Family Law Rules2004 to prepare a family report  and in relation to this:

   (1)Within seven (7) days, the documents and written instructions shall be provided to the single expert, such documents and written instructions to be as agreed between the parties, and in the event of dispute, shall be as directed by the single expert.

   (2)Mr O has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

   (3)The parties shall attend and ensure that the children attend all necessary appointments for the preparation of the Family Report.

   (4)The father shall meet payment of the mother’s half share of the family report writer’s fees with her share of those fees to be deducted from her property settlement.

   (5)The report is to deal with all matters considered relevant by the expert, including:

   (A)The religious beliefs of the mother and her mother and how that impacts on the children;

   (B)The views expressed by the children and any factors the expert considers relevant to the weight to be given to those wishes;

   (C)The nature of the children’s relationship with each of the parents and any other person;

   (D)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

   (E)The likely effect of any changes in the children’s circumstances, including the likely effect of separation from either parent;

   (F)The attitudes to the children and the responsibilities of parenthood, demonstrated by each parent.

4. Partial property settlement

   (a)Within seven days, by way of partial property settlement, the husband pay to the wife the sum of $10,000.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 6952 of 2011

Mr Williams

Applicant

And

Ms Williams

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Williams for various, and I must say, extensive orders, as set out in his application filed 5 November 2012.  If I may ….. these orders – unfortunately, because of the experience of counsel in this matter, most of – quite a few of the orders, as sought, have been agreed upon between the parties.  But basically what I have to look at is whether or no the children of the relationship between the applicant, Mr Williams and his wife are to undergo shared time for parenting.  That is, alternate weeks, up until this matter comes on for trial or some other order is made at a subsequent date or whether, as is submitted by the applicant, that the children should have more restricted contact with the mother as particularised in particular, paragraph 2 of his application.

2. Very briefly, may I say that I find this quite distressing, this case.  It is distressing, not only on the part of the parties; it is distressing for myself, in that it is a matter of some degree of importance, not necessarily for the parents because, as I have said frequently in this Court, as far as I am concerned the parents do not have any rights in this case.  The rights are totally those of the children.  They have duties, and this is a case which is not easy.  It is a matter which I think that any judge should be entitled to have a little bit more time to be able to read the material.  I have had no time to read the material.  In fact, the respondent’s material was handed up by leave this morning at approximately 11 o’clock or thereabouts, if my memory serves me correctly.  Consequently, I have been laboured under a great deal of difficulty.

3. Notwithstanding that, I will do the best I can.  I have read the material that has been put before me.  I would have preferred some time to further read so I could completely digest it, but I have, got to the crux of the matter.  I say, very briefly, in cases ….. another place, that according to the material the parties were married in 1997.  From such union, as aforesaid, four children were born; J in April 1998, K, in 1999 and L, in November 2002 and M, in October 2004.  At or about the time of the marriage, I am right in saying that the applicant, at that time, had no qualifications.  He subsequently became qualified as a pharmacist and has practised his profession in the northern New South Wales, particularly around the P Town area which, as I have said on several occasions, is a most salubrious area in – well, in New South Wales anyway.  It appears, on the material before me, and this is not a finding of fact, it being an interim matter, he has done particularly well and has amassed what may be suggested to be a considerable fortune with a considerable amount of properties which are particularised particularly in the mother’s affidavit.

4. It is quite clear, on the evidence before me, that the mother has had some considerable health problems.  She sets it out at paragraph 57 – commencing at paragraph 57 – at paragraph 58 of her affidavit filed by leave this morning and she has made it quite clear to me that during the period of cohabitation – not only during the period of cohabitation but prior to that, she has had a great deal of difficulties, not only physically but mentally.  It appears that prior to her becoming involved with the applicant that she had a most unfortunate experience with a previous partner, I think it was, and she has briefly touched upon the cowardly attacks upon herself – perpetrated upon herself by this man.  As a result thereof, she says that she has suffered and is continuing to suffer, albeit is now in a much better frame of mind than she was, post-traumatic stress disorder.  This occasions her a great deal of distress.  It can affect her in various ways; words such as “catatonic”, staring into space, being unable to speak, have been bandied around in both the affidavits.  I am more than satisfied that she was not well in relation to that.

5. She also has other disorders which are particularised in paragraph 58 and she goes on further to set out in full what medical procedures she has undertaken, and one of them, Postural Orthostatic Hypertension (“POTS”), see 58B, if my memory serves me correctly it has caused her on occasions to faint.  This is a problem with blood pressure which, on occasions the blood pools, in the lower part of her body and naturally, of course, lessens the amount of oxygen going to the brain and her brain shuts down and she collapses and faints.  She has indicated that this has happened to her over many years and that on one occasion – I am not quite sure whether it was for post-traumatic stress disorder or POTS, that as a result of this – of an attack upon her, she fainted whilst at the wheel of a car and crashed and wrote the car off.  This was back in 2000 or 2001.  She indicates, on her material, that she has not had a fainting fit since about 15 months ago and feels much better.

6. Notwithstanding that, she has been, in the last 18 months, admitted to hospital, psychiatric and otherwise, on at least three occasions.  Two of which she says were engendered by a post-traumatic stress disorder; another occasion she has been in for some physical restoration, in effect, plastic surgery in relation to her pelvic floor and she generally, I think it must be quite clear, has struggled with her health and I compliment her upon that, it must be exceptionally difficulty.  Not only do I compliment her on that, but on the material before me, notwithstanding there are diverse views, I compliment the father, the applicant, because it appears as though he has been, as much as he can, of assistance to the mother.  Once again, I emphasise that is not a finding of facts, as this is an interim matter and there could be no suggestion of issue estoppel or anything of that nature.

7. The parties separated last year and a consent order which staggers me – a consent order was made before Justice Ryan of the Family Court in Sydney which, by consent, the parties indicated that they would have themselves psychiatrically examined as well as the children.  This year, of course, that is no longer any way accepted, in that the parties both agreed that it is unnecessary for the children to be psychiatrically examined; notwithstanding, I am sure the children have undergone an enormous amount of pressure as a result of the distress they would have suffered because of their parents’ disagreement, and that they appear to be generally well stabilised, although it might be that the second girl, who is K, may suffer from some anxiety.  I note that she has what, just recently perhaps come into puberty and that may have something to do with it, or she may have had it all her life.

8. They separated, as I said, last year.  They resumed cohabitation, or attempted to reconcile earlier this year, and unfortunately the attempt at reconciliation was a failure and they separated, as I understand, finally on or about in August of this year.  During the last separation, that was up until early this year, the parties had separated under the one roof.  Subsequently, there was a separation, as I have said, and that eventually the parties have physically separated.  The mother is residing in rented accommodation and the father is still residing in the former matrimonial home.

9. There is an enormous amount of material put before me in relation to the parenting matter.  There are some cheer squad members, there are members who have indicated their being nannies, they have seen what either of the parties or both of them do in relation to the children, particularly insofar as it falls from the father.  That the mother’s health has been such that she has been unable to really mother the children, as I am sure she would have liked to have done and that her health has precluded her from doing those things and it is – not necessarily necessitated but the parties have had the benefit, some people might say not, of nannies.  And they have had, I think the father says, up to 28 nannies during their cohabitation.  I must say, in passing, it surprises me that if, in fact, the mother says that she does as much as she does for the children that there was any necessity for nannies.  I would have thought that perhaps her health is perhaps a little worse than what she has indicated.  I mean, she has said it is not good, but she is emphasising the fact that since about July or August, it was, of this year, and since she has physically separated from the father now her health is much better, that she is now able to adequately look after the children.

10. Regrettably, as happens so frequently in this Court, the separation was not harmonious by any means at all.  The children, as I understand, were taken into possession of the respondent’s mother from school and they were kept away from the father, as it appears on some material, for a period of at least two to three days.  The father was unable to ascertain the address of two of the children or the mother, for a period of approximately seven days, before a regimen of alternate weeks was agreed to between the parties.  The mother says she offered this; that the father have contact with the children on alternate weeks, commencing on a Wednesday.  The father says he did accept this, but did so purely as a result of pressure brought to bear upon him in his being unable to ascertain where the children were.  I do not think it is cavilled with by the mother that she did not disclose the residence of the children for a period.  I can imagine the pressure that would be brought to bear upon the father.

11. However, there has been a regime since 7 November 2012, wherein the father has one week and the mother has the other week.  I have expressed myself on many occasions in this Court about sharing time of this nature.  I recognise that I am required to consider whether, in fact, there should be significant contact between the so-called non-possessory parent or the non-primary parent and the other but I am very strongly of a belief; if the parties cannot agree on matters when they come before this Court there is no way that separate parenting or shared parenting can work.  It happens frequently, out in the big, bad world, as I have said before, but we never see it because the parties put the welfare of their children first and agree on things.  And consequently, no order is ever necessarily made or if it is made, it is made by consent.

12. But that is not it and I have to consider the Act, as it has been put before me, and I, in particular, refer to the authority of Goode & Goode [2006] FamCA 1346 which is reported in 2006, and it has been looked at subsequently thereto, particularly in the matter of Zabini & Zabini [2010] FamCAFC 10, which was (2010) Family Court, page 10 and Goode was Family Court of Australia 1346.  It appears to me that the previous cases of Cowling v Cowling (1998) FLC 92-801 and Cilento & Cilento (1980) FLC 90-847, which put up, on an interim basis, a principle that if there was an established status quo, such status quo, pending the full hearing of the case, should not be interfered with unless the children’s welfare was gravely at risk. Goode has clearly indicated that principle, and it has been enunciated in Cilento and in Cowling, which I think was a very proper type of test, is no longer the test and that the test appears to be a tiered test as set out, not only in Goode but referred to with approval, as ….. stand, in paragraph 72, as in Zabini.  And I read from the decision of Goode (paragraph 72):

    In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in the best interests and reasonably practicable.

    The reasonably practicality has, of course, been approved of by the High Court in Rosa & Rosa [2009] FamCAFC 81.  That means that where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interest concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parties in the care arrangements of the child.  I also refer to and incorporate paragraph 63 which deals with the various sections and subsections which the learned Full Court indicates that judges put in the position that I have had to consider, on an interim basis.

1. But I also emphasise that paragraph 74 of Goode said:

   We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.  So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

2. I put in apposition; there are the clearly disputed facts in this case, quite clearly.  There is, on the one hand, the mother’s allegation that she has been the primary care giver.  There is, on the other hand, the father’s allegations that she is not; because of her ill health, she has been of little assistance to the children for a considerable period and they have relied upon nannies.

3. There have been affidavits put in by nannies, particularly the latest one, obviously, Ms Q, whereas she sets out that for perhaps days on end, the mother, because of illness, particularly her migraines, as I understand – which I can relate to – cause her to, in effect, cosset herself in her own room and be unable to assist the children in just general every day matters, which are necessary for the proper upbringing of these children.

4. They are contested.  If I found that the mother was the principal caregiver I would be concerned.  If I find that the father is the principal caregiver I would be equally concerned.  I am left in the most invidious position of having to have a general feeling of what is going on in this case and endeavour to say that my general feeling is such that I think X should be the way that the children’s best interests are encouraged.  I have had a look at the various subsections, which are set out in paragraph 73 of Goode.  They refer in particular to

   
   

   s 60CC(3)(d), s 60CC(3)(m) and if appropriate s 60CC(4) and s 60CC(4A).  I have also taken into consideration that this matter is a matter that should come into existence subsequent to the amendments and consequently I am looking at the new amended section dealing with parenting matters and I have those matters before me.

5. It is not contested, as I understand it, that the mother’s health is not good.  She says it has improved tremendously, she can see no reason why she cannot adequately advance the children’s welfare by their contact with the parents being shared.  The Act and the politicians have decided that there should be equal parental responsibility and I understand that that is not in issue.  Quite properly so to as well.  The Act also suggests that I should, as far as possible, unless it is not in the interests of the children, have equal shared parenting or significant time for the parties to have contact.

6. It has fallen from Carew of counsel, who appears on behalf of the applicant father, that his proposal - that is, there be alternate weekend contact, albeit of a somewhat limited duration – is significant in all the circumstances;  that the children should not be removed from their house in which they have resided for at least 12 years, all the life of two of them, and most of the life of the elder two, that they should be allowed to reside there and that the matter should be examined in full.  I must say, notwithstanding, I do feel that I have been able to put before the parties sufficient in-depth consideration about this matter.  To me it appears that the mother’s health is primary.  She has not been well.  She has improved out of sight.  I note the evidence of Dr R and Dr S.

7. Consequently, I hope – and I really hope – that her health has been corrected, that she can look forward – she would be apparently a young woman;  I think she is only 38 or something of that nature – to a future of much better condition than what she has been before.  The father has called upon me to make certain orders or to ask for undertakings from the wife insofar as driving of a car is concerned.  As I have touched upon some 12 years ago or thereabouts the mother, as a result of her illness, crashed a car and he is concerned that if the fainting fits, which she concedes she had up until some 15 months ago or her catatonic state which she puts to the Court as late as July, if my memory services me correctly, would be such that it would be dangerous for the children to drive.

8. Mr Jordan, of counsel on behalf of the mother, has countered this by saying that the department responsible for determining whether or no a person is entitled to receive a licence and therefore drive, has accepted that her health is such that there is no concern to them and they have reinstated her licence.  She concedes - and readily concedes she has not driven a car for some 10 or 12 years, but she has, with the assistance of a gentleman whose affidavit is before me, a qualified driving instructor, taken tests and has now reinstated her licence.

9. The father still says that he is concerned that the welfare of the children is such that it may be - but he does not go any further than that, it may be that she will have an attack either by way of low blood pressure … or the catatonic state engendered by the post traumatic stress disorder, and as a result thereof cause the children some harm.  She is also seeking an order that the father supply to her one of the cars which he has.  There appears to be two available and there are three cars available in the family.  I must say, as I put to Jordan, I do not feel that I should be put in the position - notwithstanding what the Department of Transport or whatever it is called in New South Wales, is of the view that she is capable of driving - that I should allow the children to drive with her.

10. If she wishes to put herself at risk and wishes to perhaps put other users of the road at risk, so be it, but I am duty bound to ensure that the children’s best interests are looked after.  I can see no reason in those circumstances, since the applicant has only two legs and two arms, that he would be unable to drive three vehicles, that he should make available to her a Toyota on the basis that she does not transport the children in it or a like vehicle.  I note that she has said in her affidavit that she does not have a car and that at present she is using her mother’s, if my memory serves me correctly, and she is some

    
    

    15 minutes from the children’s school at T Town and she is about the same distance from the former matrimonial home.  Naturally, of course, I would expect that to be resolved by discussion between the parties; but I will order it anyway.

11. I therefore am of the view that there has been a status quo.  There is a status quo for at least 12 years of two of the children’s lives and for the whole of the life of the younger two.  I do not believe that there is anything of such significance – taken into consideration those principles which are enunciated in Goode that would detract me from saying, pending the determination of this trial and it is not going to be simple, that the children should remain in their former home.  Insofar as contact is concerned, I do not believe that contact from 9.00 am on Saturday morning until 5.00 pm on Sunday afternoon is adequate.  I do not think it is substantial.

12. I believe that there is no reason why the children should not go and stay with the mother from after school on Friday until the commencement of school on Monday.  I can see no reason.  I am a little against mid-week contact, but I do think that in this case that the relationship between the mother and the children must be encouraged, and consequently I would order him the off week that the children reside with the mother from after school on Wednesday until the commencement of school on Thursday; that is in the off week.  There is one further undertaking sought – well, there is not one, I think there are several others, but one of some importance and that is that the mother do not discuss with the children the principles of her religion.  I would not make an order to that effect at this stage.  I would have to have a lot more before me to consider that the mother should not be entitled should she so wish – and I doubt whether she does – to discuss the question and principles of her religion.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 28 November 2012.

Associate: 

Date:  28 November 2012