Wilson and Mason

[2011] FamCA 24

FAMILY COURT OF AUSTRALIA

WILSON & MASON [2011] FamCA 24

FAMILY LAW – CHILDREN – Interim parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilson

RESPONDENT: Ms Mason

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6729 of 2007

DATE DELIVERED: 19 JANUARY 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 17 JANUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS SAMSON

SOLICITOR FOR THE APPLICANT: PENSINSULAR LAW

SOLICITOR FOR THE RESPONDENT: MR HOWE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR CURTAIN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CE FAMILY LAWYERS

Orders

1. That paragraph 2 of the orders made 19 November 2008 and paragraph 2 of the orders made 23 March 2010 are discharged.

2. That until further order, the father spend time with the children J born … July 2001 and N born … November 2003 on each alternate weekend from 9.00am on the Saturday until 6.00pm on the Sunday commencing on Saturday 22 January 2011.

3. For the purposes of paragraph 2 of these orders, the mother deliver the children to the father at the commencement of the periods referred to and the father return the children to the mother at the conclusion of such periods and that the handover in each case occur at the carpark of the … shops.

4. That until further order, all communications between the parties be by way of text message and for that purpose, each party maintain a mobile telephone and make that number available to the other party.

5. That the interim application of the father filed 30 December 2010 and the response thereto of the mother filed 17 January 2011 are otherwise dismissed.

6. That reasons for these orders be prepared and delivered.

7. 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6729  of 2007

MR WILSON

Applicant

And

MS MASON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 30 December 2010, Mr Wilson (“the father”) filed an application in a case seeking:

   (a)that orders made on 19 November 2008 “be and remain in full force and effect”; and

   (b)various injunctions relating to the mother exposing the children to domestic violence.

2. Ms Mason (“the mother”) filed a response to the father’s application at court on 17 January 2011.  She sought orders that the father’s application be dismissed. 

3. In the hearing, each party’s position was somewhat different.  The father sought an order that he have the children for the school holiday period forthwith until school resumes.  He also sought the orders set out above.

4. The mother sought orders that the father have time with the children for one weekend per month from the conclusion of the school day until the Sunday evening and that the handover occur at the H police station.  The mother also sought an injunction that the father be restrained from criticising, abusing or denigrating her or anyone with her relating to the children.

5. The children’s interests were represented by Mr Curtain of counsel for the Independent Children’s Lawyer. He proposed that all previous orders be suspended and that the father spend two out of every three weekends with the children from 9.00am Saturday until 6.00pm Sunday.

6. The litigation history in this case is difficult and complex.  Until these proceedings, various hearings have occurred where the parties have represented themselves.  There is currently pending a final hearing before me of the parenting dispute in April 2011.  It is my intention that the orders I made in court on 17 January 2011 cover the period until the determination of those final proceedings.

7. The evidence that each party relied upon was scant and unhelpful.  I have been assisted by counsel for the Independent Children’s Lawyer in pointing to matters that were relevant.  The history of this case can be set out in short compass.

8. On 19 November 2008, the parties consented to orders that the father spend time with the children on each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Tuesday morning.  That was to continue until July 2010 and thereafter, the time was to be extended until the Wednesday morning.  Orders were also made about the parents sharing the relevant school holidays.

9. On 23 March 2010, the orders to which I have just referred were suspended.  They were however to be reinstated if the father complied with certain conditions.  Those conditions were essentially that the parties engage the service of Mr SN who is a psychologist and that both parties abide by his recommendations.  A second condition was that the father authorise his psychologist (incorrectly referred to in the orders as a psychiatrist) to speak to Mr SN.  The father was also to abide by the recommendations of his own psychologist.

10. It as common ground between the parties that Mr SN was engaged but ultimately refused to have anything further to do with the matter.  That led to the current impasse.  The father did not see the children for much of the last part of 2010. 

11. I held a preliminary hearing on 12 November 2010 when I set the matter down for hearing.  Because of the busy nature of the list that day, I did not have the opportunity to consider any formal application by the father and hence he filed that on 30 December 2010.

12. There was clearly a basis for the orders being made on 23 March 2010.  It is not appropriate or necessary for the purposes of these reasons to go behind those orders.  The father’s position as articulated by his solicitor was that I should simply treat the conditions in the order as non-existent as if they were to be ignored.  As I pointed out, no application for variation had ever been made and as there was a clear basis for the orders, an appropriate course of action would have been to have found a substitute for Mr SN.

13. Mr SN filed an affidavit on 16 September 2010.  Much of what he said is not relevant to these reasons.  However, he said the following:

    The protracted nature of the acrimony and disagreement between [the mother] and [the father] has created an unsuitable environment for the future development and nurturance of these two boys.

    My views have been formulated entirely from my interactions with the parents and from comments made by them. 

    I believe the boys are at risk of psychological harm if the current situation continues.

    …

    [The father]…has not met any of my expectations regarding the Consent Orders.  He has been verbally aggressive, threatening, obstructive and paranoid.

    [The father] has been incapable or unable to protect the children from the acrimony of his failed relationship with [the mother] and he has refused to stop discussing these issues with the children.   

14. It was clear from the affidavit of Mr SN that he saw no value in being the person designated in the orders of March 2010 but on any view, someone will have to undertake that role.

15. Mr SN made it clear he could not work with the father. 

16. I also had the benefit of an affidavit of Mr U who is a family consultant attached to the Court.  He said that notwithstanding the children’s positive relationship with their father, both parents had experienced intense and long-standing conflict which resulted in the impasse.  Ongoing counselling or therapy was unlikely to result in any significant improvement in the relationship between the parents.

17. Mr U was of the view that the father did not have the capacity to reflect on his own behaviours to the extent that any significant change was foreseeable.  Mr U provided three options.  The first was that if the conflict was having a detrimental effect upon the children (and upon the mother) the Court might consider ending the father’s time with the children.  That would be difficult because of the positive relationship between the children and the father.  A second option was to minimise the frequency of visits.  That did not eliminate the conflict or reduce the intensity of it but rather the opportunities for occurrences of a problem nature.  The third option was simply to resume the previous arrangements.

18. The limited evidence that I have points to the fact that the conflict has not gone away.  The mother’s evidence was that the father angered easily and referred to her as “insane, evil, sadistic, child abuser and psychopath”.  For his part, the father accuses the mother of treating the children’s health badly by seeking alternative remedies to recognised medical treatment.  The parties even in discussion with their lawyers talked of the failure of contact centres to assist them and the only appropriate place for the handover of the children to occur being a police station.  No-one was seriously able to point to any evidence as to why that was necessary.  The father was heard to articulate his reason for wanting a police station being for his protection but there is no evidence that I could see to enable me to draw that conclusion.

19. The father had also been attending psychologist Dr P who provided a letter in September 2010.  He described the father as suffering from complex post-traumatic stress disorder.  He pointed to the vulnerability of the father but that there were ongoing treatment issues. 

20. Dr P said that the father was able to manage his feelings of anger and appeared to be less irritable and more willing to accept professional advice.

21. All of the evidence points to the fact that the children have a good relationship with their father but the dispute between the parents is one that is highly intensive.  There is every reason for me to find at this preliminary stage that Mr U saw no solution to that conflict.

22. Of the three options, the Independent Children’s Lawyer suggested there should be some ongoing contact between the father and the children and that it should be two weekends out of every three.  That seems to me to fly in the face of the most sensible option which is to reduce the number of conflictual situations that might involve the children.  The mother’s position was that although she commenced by saying she only wanted the father to see the children one weekend per month, she was prepared to compromise and make an alternate weekend.  I must conclude from both the Independent Children’s Lawyer’s position and that of the mother, each believes that the father has the capacity to care for the children to some degree.

23. I am asked to make interim orders pending the final determination of the hearing.  It makes sense to limit the opportunities for there to be conflict between the parents but also for there to be long periods where the father can involve the children in adult issues particularly in relation to medical treatment.  It must be understood that the mother has sole parental responsibility. 

24. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court must consider the best interests of the children when making a parenting order. The best interests are determined by reference to the factors set out in s 60CC of the Act. All of those matters were contemplated by the orders of the Court in 2008, 2009 and no doubt in the early part of 2010 that led up to the consent orders being made in March 2010. No party suggested that there had been any change. I do not therefore propose to canvass each of the issues nor is it necessary for me to do so. What is important is that I consider the proposal that best meets the children’s needs until the matter can be comprehensively examined in April.

25. I am satisfied that having regard to the nature of the relationship between the father and the children and their desire to see him that limited periods of time must commence. I say that also with the warning that the provisions of s 60CC(4) and (4A) will be very much in my mind when I determine the matter in April.

26. The parties argued about the handover and in my view, there was no basis upon which I could make an order that the children be handed over at a police station. Apart from anything else, the children would be presumably “supervised” in some way by an unnamed police officer with little or no understanding of the case let alone experience in these sorts of problems.  This is a case which required not so much the prevention of a breach of the peace but rather someone to ensure that the children change households without being exposed to the infected dispute between their parents.  Whilst a contact centre may be a better environment for that to occur, no party suggested that that was practicable in the circumstances.  The only solution I could come up with was that it occur at the shopping centre.  The father’s position was that it should be at the school but the children are currently on school holidays and even if that were to occur, the mother complained that the father had threatened in the past not to return them on the Monday.

27. The father also sought orders that the children not be subjected to domestic violence.  No evidence was presented of any credible nature that would enable me to make an order.  The mother sought an order that there be an injunction in relation to the denigration of her and others by the father but equally, all of that occurred prior to August 2010 and if orders were made, I have doubts having regard to the nature of the father’s psychological state that he would be able to comply with them. 

28. In the circumstances, it seems to me that the most logical conclusion is that proffered by Mr U that the opportunity for exposure to conflict by these children should be extremely limited.

29. It seems to me in the circumstances that these orders are in the best interests of these children and pending the April hearing, I shall make those orders.

30. In every parenting case, the presumption of equal shared parental responsibility applies unless in an interim situation, the Court is unable to determine the matter on the basis that the legislation requires.  Not only am I working on untested evidence here, it is also extremely limited.  In those circumstances, it is not a question to be determined in this environment.

I certify that the preceding Thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 January 2011.

Associate: 

Date: 19 January 2011