Wootton and Hillier
[2009] FMCAfam 1513
•23 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOOTTON & HILLIER | [2009] FMCAfam 1513 |
| FAMILY LAW – Children – parenting – ongoing conflict between the parents – where both parties seek that a parenting plan be set aside – where a psychologist report is to be prepared. |
| Family Law Act 1975, ss.61DA, 63C, 65DAA |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2007) 37 Fam LR 518 Vasser v Taylor-Black (2007) 37 Fam LR 256 |
| Applicant: | MS WOOTTON |
| Respondent: | MR HILLIER |
| File Number: | CAC 2423 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 17 June 2009 |
| Date of Last Submission: | 17 June 2009 |
| Delivered at: | Canberra |
| Delivered on: | 23 June 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Phelps Reid |
| Solicitors for the Respondent: | Watts McCray McGuiness Eley |
ORDERS
The Parenting Plan dated 21st May 2007 be set aside.
The parents will have equal shared parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2004.
The children will live with the Mother.
The children will spend time with their Father as follows:-
(a)Each alternate weekend, from after school on Friday until the commencement of school on Monday; and
(b)in the `off week’, for two nights to be agreed between the parties, or failing agreement, from after school on Tuesday until the commencement of school on Thursday.
Both parents are restrained from attending within 200 metres of the other parent’s home and workplace, except in the case of an emergency, or unless otherwise agreed between the parents.
Both parents are restrained from discussing these Court proceedings with the children, or doing so in their presence and they must use their best endeavours to ensure that no other person does so either.
Both parents are restrained from denigrating or otherwise speaking ill of the other parent to the children, or doing so in their presence and they must use their best endeavours to ensure that no one else does so either.
The matter be adjourned for further mention on 29th July 2009 at 10:30am.
AND IT IS NOTED THAT that the parties have arranged for a Clinical Psychologist to prepare a Family Report in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Wootton & Hillier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2423 of 2007
| MS WOOTTON |
Applicant
And
| MR HILLIER |
Respondent
REASONS FOR JUDGMENT
Introduction
The following reasons were delivered as an oral judgment on 23 June 2009 following which the matter resolved or otherwise went into abeyance. A more recent skirmish has broken out and an Independent Children’s Lawyer has been appointed. The publication of these reasons now is intended to assist the parties and legal practitioners, at the very least to provide some historical context for the resumption of the contest. They have been slightly revised from the original transcript.
In making the following observations and subsequent orders, I should not be taken to have made any final determination of any of the matters that are currently before the Court. My orders also should not be taken, directly or indirectly, to condemn or to find fault with either or both parents. This is not to say that some questions are not raised and answers required. My orders are determined according to what, in my view at this time and in the short time before we have the expert’s report, are in [X]’s (and [Y]’s) best interests.
Over the last couple of months the eldest child of Mr Hillier and
Ms Wootton’s two children, [X] (who is 6 years old), has evidenced a range of concerning behaviour. This has occurred at, and has been the subject of comment by, her school. It is contended by her Mother that this behaviour centres around, or at least relates centrally to, [X]’s relationship with her Father.
Quite properly, the experienced lawyers involved in these proceedings have arranged for [X] and her parents to see a psychologist in Sydney at short notice on the 30th of this month.
Documents have been produced on subpoena from a number of sources, but essentially from the [ACT] Department of Disability, Housing and Community Services, and [N] Primary School.
Since separation in February 2007, the two children – [X] and her
4 year old brother [Y] – have lived in a week-about arrangement with both parents, pursuant to a parenting plan that was entered into on
21st May 2007. A copy of that plan, which was entered into pursuant to s.63C of the Family Law Act1975 (Cth) (“the Act”), is annexed to
Ms Wootton’s affidavit of 1st June 2009 (filed on 3rd June).
Summarily stated, both parents seek orders whereby this plan should be set aside, and that both children live with them and spend time with the non-resident either as proposed by a family consultant or as determined by the Court. In the absence of relevant evidence, and subject to considering whether such an order would be in [X]’s best interests, I am bound by s.61DA of the Act and the presumption found in that section in relation to equal shared parental responsibility, and the consequential statutory implications that flow from its operation under s.65DAA. An order for equal shared parental responsibility will be made.
Curiously, in a sense, there have been no incidents or concerns (it would seem) that have involved [Y]. While all children are different, one might expect that if there are concerns with one child one might expect some manifestation or impact on the other. But I will leave that to one side at the moment and await the report from the psychologist who has been retained.
The immediate question for determination is what parenting orders should be made, which are in [X]’s best interests, between now and the matter coming back to Court at the end of next month following release of the report? That question is to be resolved by reference to the usual principles enunciated by the Full Court in Goode v Goode,[1] and confirmed by a differently constituted Full Court in Keach & Keach,[2] and the application of those principles to the facts – somewhat limited as they are at the moment. Brown J’s comments in Mazorski v Albright,[3] also provide a helpful summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s regularly cited “twin pillars” description, of children having a meaningful relationship with both parents and the need to protect children from physical and psychological harm, neatly summarises the matters in tension in these proceedings.
[1] (2007) 36 Fam LR 422.
[2] (2007) FLC ¶93-353.
[3] (2007) 37 Fam LR 518.
Legal principles
The procedural and general jurisprudential course to be followed is set out particular in the following paragraphs in Goode: [10], [47], [48], [56], [81] & [82].[4]
[4] (2007) 36 Fam LR 422 at [10], [47], [48], [56], [81] & [82].
As already indicated, the principles adumbrated in Goode were further detailed and endorsed by a differently constituted Full Court in Keach & Keach, particularly at paras.24 ff.[5]
[5] (2007) FLC ¶93-353 at pars. 24 ff.
I am also conscious of the important remarks of, and general principle articulated by, the Full Court (Finn, Boland & Ryan JJ) in Vasser v Taylor-Black,[6] about the importance of there being proper investigation prior to making any detailed parenting orders. As already indicated, this will occur, certainly in the first instance, with the report from the psychologist.
[6] (2007) 37 Fam LR 256.
The evidence
The following observations may be made from the material currently before the Court.
First, not untypically (particularly in family law proceedings, but in others as well), both parties assert their respective positions with something approaching infallibility. Contested human endeavour confirms that this is a somewhat dangerous course. One example will suffice from the material in these proceedings. It is not, in my view, immediately or directly relevant to the decision(s) that are to be made in relation to [X], but it is cautionary if not, perhaps, instructive.
In his affidavit of 16th June 2009, Mr Hillier deposes to verifying that an incident, alleged to have occurred some time ago when Ms Wootton was [occupation omitted] in Sydney that involved a man who had been shot dying in her arms, “was completely untrue.”[7] Yet at the interim hearing on 17th June, the Court was provided with a copy of a letter from the [L] Local Area Command, dated 27th August 2001, which confirms in some detail the shooting murder in [L] and Ms Wootton’s attendance at the scene. The area Commander praised Ms Wootton for her “diligence and professional manner” and the aid which she provided to the dying man.
[7] Affidavit of Mr Hillier filed 16th June 2009, par 15.
Where, how and with whom Mr Hillier confirmed that this incident and Ms Wootton’s involvement in it were “completely untrue” remain, with some interest, to be explained.
But let us return to more immediate concerns in relation to [X].
I accept that, to a significant degree, the “reporting” of matters at this stage – including from documents from the Department – are essentially or predominantly from either Ms Wootton or presumably those with whom she is associated. Nonetheless, one would hope that both the Department and the School have exercised some independent judgment in the matters they have recorded, and more particularly, that any comments and recommendations have been on the basis of their professional training and observation. There is no indication or suggestion that they have not done so.
In the material from [X]’s school, from late March until mid-May, there are consistent entries about [X]’s “melt-downs” at school, which have included “profuse” crying and vomiting. The school’s notes also record [X]’s assertion that she does not enjoy living with her Father, and that she wants to live with her Mother. In an entry dated 7th May, the school notes record that Mr Hillier is “very domineering, [who] appears to care more about his needs than [X].”
In an earlier entry, dated 6th April, the school notes state: “[Mr Hillier] rang me at [N] Public School. He explained he had a very bad weekend – upset about how [X] feels about him. [X] loves him but he has a difficult personality. [Mr Hillier] went on and on. He does not know when to stop. I had to terminate call after about half an hour and ask office to not put any more calls through.”
Amongst the departmental records produced to the Court, there are regular references to [X] feeling like she is “frozen in the middle” (admittedly a somewhat ambiguous statement), and [X] being “extremely distressed” and “highly agitated” at school.
The Departments records, dated 4th April 2009, observe that it was a “concern report” and that “the emotional harm to this young child is evident.” The Department notes that both parents “are behaving inappropriately.” The Department also records concerns about the actions of Mr Hillier in front of the children in killing a kangaroo.
Mr Hillier contends that he was simply protecting himself and the children from the kangaroo when it went to attack either him or them or both.
Having regard to the legal principles in the cases to which I have referred, and the legislative pathway which I am required to follow, it seems to me that there are sufficient concerns about [X]’s behaviour at the moment to warrant some further, moderate court intervention at this time. The primary concern relates to [X]’s emotional and psychological well-being and how that might be repaired or otherwise salved, or even somewhat protected if necessary, while ensuring that she has the benefit of a meaningful relationship with both parents, and also she has the benefit of her parents being meaningfully involved in her life. And what happens to [X] will doubtless and inevitably have an impact on her younger brother [Y] also.
I accept that any views expressed by [X] about either of her parents must be measured against her young age. That said, there is the rather consistent emotional exhibition that she has presented over a number of months recorded in documents from independent sources to which the Court must have appropriate regard. The observations of both the school and the Department require that the Court proceed as cautiously as possible at this very early stage of proceedings.
There are competing allegations of violence between the parents, which obviously date from the time when they were together. In my view, while a consideration, and the children may have witnessed some of those actions when they were even younger, they are not paramount to my determination of orders at this time.
There are clearly still a great many strains between Ms Wootton and Mr Hillier. Subject to further evidence and otherwise being corrected, it would appear that neither of them has participated in either post-separation parenting counselling or courses, or parenting course more generally.
It may be that once [X]’s parents have worked out some, or a better, modus operandi of communication and other matters concerning their separated parenting of [X] (and necessarily including [Y]), some if not all of [X]’s current concerns and anxieties will, over time and with appropriate professional help, dissipate.
In the light of the limited but somewhat consistent evidence, until further order and until the Court has the benefit of the Report that will issue early next month, it is important that orders be made that palliate, to some degree, the tensions that are evident in [X]’s life at the moment. I state again that the orders are considered to be in [X]’s best interests; they are not crafted or intended to punish either parent.
In my view, until further order or as otherwise agreed in writing between the parties, the children should live with the Mother and spend time with the Father along the following lines: (a) each alternate weekend, (b) in the ‘off week’, for two nights (to be agreed).
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 21 January 2011
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