YORK & YORK

[2011] FamCA 229

FAMILY COURT OF AUSTRALIA

YORK & YORK [2011] FamCA 229

FAMILY LAW - PARENTING - children – contact – best interests - separation of siblings – sibling relationships - relationship issues – presumption of equal shared parental responsibility – disagreement between parties regarding which school child attends – family therapy – interim orders made

Family Law Act 1975 (Cth)

APPLICANT: Mr York

RESPONDENT: Ms York

FILE NUMBER: SYC 1143 of 2010

DATE DELIVERED: 8 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 8 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Shepherd

SOLICITOR FOR THE RESPONDENT: Ms Shevket

BY CONSENT and in accordance with the document marked Exhibit “A”

IT IS ORDERED

1. That the parties have equal shared parental responsibility for the children H born on … October 1998 and G born … October 1998.

1. That G live with the father until such time as she has counselling.

1. That the children, the mother and the father be involved in family therapy with Counselling Service 1 in Sydney Suburb 1, with both parties to contact Counselling Service 1 within 48 hours to make an appointment.

1. That pursuant to Section 68L of the Act an independent children’s lawyer be appointed for the children H and G.

1. That pending completion of G’s counselling that G spend time with her mother in accordance with her wishes.

1. That after the successful completion of the counselling process the matter be relisted to determine the time G will spend with her mother.

1. That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

PENDING FURTHER ORDER IT IS ORDERED

1. That H live with the mother.

1. That H spend time with the father as follows:

a.From after school Friday to commencement of school Monday each alternate weekend;

b.For one half of all school holidays being the first half in even numbered years commencing after school until 3.00pm at the midpoint of the school holidays and the second half in all odd numbered years commencing 3.00pm at the midpoint of the holidays until 5.00pm the day before the start of the new school term;

c.From 9.00am to 5.00pm on Father’s Day;

d.On the children’s birthday as agreed, failing agreement from 3.00pm to 7.00pm.

e.From after school Thursday until 7.30pm each alternate week during school term being Thursday after H has spent a weekend with the father.

1. That H attend High School 1.

1. That on those days where H is to attend school and on Thursday evenings the father shall return H to the mother’s home.

1. That all outstanding interim applications are dismissed.

IT IS NOTED THAT:

The mother requests separate sessions from the father at Counselling Service 1 at Sydney Suburb 1.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1143 of 2010

Mr York

Applicant

And

Ms York

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application for interim parenting orders in relation to the parties’ son, H, who was born in October 1998.  H is a twin and one of his parents’ four children.  Presently his twin G, elder siblings B, who is 18 years, and C, who is 17 years, live with “the father”, Mr York.  “The mother”, Ms York, and the father, both want interim orders that H (“the child”) lives with them.  Issues also arise about how much time he would spend with the parent with whom he does not primarily reside.  So that it is clear the parties agree he should spend time with each of them. 

3. Although the parties filed quite detailed affidavits, the nature of interim hearings which do not usually accommodate cross-examination, means the Court is unable to determine contentious matters.  Contentious matters may, however, be relevant to risk issues.  Decisions in relation to children are decided by reference to their best interests.  That is to say, in accordance with the provisions of Pt VII of the Family Law Act 1975 (Cth). There one sees a list of factors which are to be considered to the extent each is relevant, in order to deliver an outcome which is in a child’s best interests.

4. Both parties’ submissions reveal the focus in this case is upon relationship issues and the effect on the child of changing or not changing his circumstances.  To the extent there is evidence of matters which would go to risk of harm or exposure to family violence, these were not said to be sufficiently grave that they would result in supervision or more restrictive orders.  Rather, these matters demonstrate the highly conflicted situation which existed in the family home prior to separation.  It is noteworthy also that the father has been convicted of assaulting the subject child, and an Apprehended Violence Order has been made against him for the mother’s protection.  Because of these matters, the presumption of equal shared parental responsibility does not apply.  The parties agree, however, that it is in the child’s best interests they have equal shared parental responsibility.  While this is a worthy ambition, more needs to be done in relation to them achieving a co-operative parental relationship for the order they have agreed upon to be truly successful. 

5. Turning then to brief matters of chronology. 

6. The parties separated on 2 November 2008.  The catalyst for their separation was the father being charged with assaulting the subject child.

7. At separation, the father vacated the family home at Sydney suburb 2.  The mother and children remained in residence at Sydney Suburb 2, that having been the family home for a very long time.  Thus the children were able to continue at schools they attended prior to separation and established neighbourhood relationships have been able to continue. 

8. By agreement after separation, the children saw the father most days.  Often, this involved them spending time at the business premises where the parties continued to work alongside each other.

9. In April 2009, B started to live with the father at the business premises. 

10. In October 2009, the father and B moved into an apartment he rented at Sydney Suburb 1.  This is where they continue to reside. 

11. In November 2009, C, moved in with the father and B. 

12. Basically at the commencement of term one 2010, the twins began to reside week about with the parties.  This arrangement was implemented in their final year of primary school. 

13. By early September 2010, it would appear agreement was reached to sell the property at Sydney Suburb 2.

14. So as to enable the property, which was fairly run down to be ready for sale, the mother vacated.  She had limited funds and her choice of accommodation was accordingly limited.  As I understand it, with the twins, the mother looked at alternate accommodation during which it became clear G refused to contemplate the various alternatives suggested by the mother.  Eventually the mother accepted an offer of accommodation made by her partner, J.  He lives in a two bedroom apartment at Sydney Suburb 3.  Thus, it is apparent that any child who resided with the mother would live away from the immediate environment that child had been raised in.

15. From about this time, G has lived with the father.  H continued to live week about which involved him in the weeks he was living at Sydney Suburb 3, travelling to Sydney Suburb 2 for school. 

16. During the commencement of the Christmas/2010 school holidays, the child spent the first part with the father.  This was less than the half which the father expected.  As I understand the evidence, from 3 January 2011 until the end of the Christmas school holidays, the child’s time was spent with the mother.  The father sought to spend additional time with the child during this period, but his requests were refused by the mother.  She was afraid if the child spent time with the father during that part of the holidays, there was a real risk he would not be returned to her for the start of term 2011.  Amongst other things, it was clear by then there was a serious disagreement between the parties about whether the child should attend High School 1 which is near to Sydney Suburb 3, or at the state school previously chosen by the parties near to Sydney Suburb 2. 

17. There is now a serious issue about where the child should live.

18. This morning, I was also asked to consider an application for interim orders in relation to G.  That application has been resolved to an extent and, by agreement, G is to continue to reside with the father until such time as she has had counselling.  It is anticipated as well that there will be family therapy and following the appointment of an Independent Children’s Lawyer, there may be further consideration given to G’s living arrangements.  It is noteworthy the orders I made this morning by agreement do not include provision for G to spend fixed amounts of time with the mother, the omission reflecting the parties’ view that G would be unlikely to co-operate with such an arrangement.

19. Turning briefly then to the parties’ circumstances.  The father, as I have indicated, is the applicant for these orders.  He runs a family business and lives with B, C, and G at the Sydney Suburb 1 apartment.  B has achieved university entrance and will attend university this year. C is in his final year at school and G has started high school at High School 2 (for girls).  Thus whether the child lives with the mother or the father, he will not attend school with his twin. 

20. The mother resides with her partner, J, in his two bedroom apartment at Sydney Suburb 3.  There the child has his own bedroom.  Upon the mother receiving her property settlement she plans to move to a larger property, namely one which would be sufficiently commodious to accommodate the other children.  The mother works during school hours five days a week.  It has not been necessary for her to work during school holidays.  She is available to collect and deliver the child from school.

21. In the mother’s care last week, and notwithstanding the father’s objection and disappointment, the child started school at High School 1.  His first week has been reasonably difficult because amongst other things, the child does not have an established network of friends and the transition has involved him, for example, being subjected to bullying and needing to see the school counsellor.  Nonetheless, as I indicated during addresses this morning, this should not be seen as a portent of longer term poor outcomes. 

22. Turning now to the child’s best interests.  The Court received evidence from a family consultant, Ms S, following a child dispute conference, as well as Ms M, who is a psychologist.  The family consultant saw the child once on 18 January 2011.  The child has seen Ms M on a number of occasions, the first being in 2009.  Neither the family consultant nor Ms M have met the father and thus I agree with the submissions made by his solicitor, it is appropriate to be cautious in evaluating the significance of the information contained in the material produced by them.

23. Nonetheless from these documents, one is able to discern the following.  Firstly, the child loves both of his parents dearly.  Secondly, he does not want to be forced to choose between them.  Thirdly, troubling behaviour demonstrated by him in 2009 appears to be largely resolved.  Next, the child has been worried about his father’s and siblings’ attitudes towards his stated affection for his mother. 

24. On 15 November 2010, Ms M met with the child.  From her notes, one sees the following:

    Patient (that is, the child) said frightened to go back to dad’s because patient said:

    1.        “I will get a big lecture”.

    2.        “He will make me feel bad for liking my mother”.

    Patient very distress [sic] about returning to father’s.  “I don’t know what to do” “he will get angry and all the other kids will pick on me and be mean”.

    …

    [H] upset about dad’s threatening that if he doesn’t come back he will drag him to the car and embarrass [sic] him in front of all other kids. 

    [H] upset about negative comments about mother, that all siblings and father say. 

    They call him nasty names because he spends time with mother, ie, “homosexual”.

25. Then on 9 December 2010 from the same bundle of documents produced by Ms M, one sees a further consultation by her with the child.

    [H] said

    -    [High School 1] preferred school. 

    -    Patient distressed say “too much stress.” 

    …

    -    Patient very distressed “I don’t know what to do there is too much pressure.” 

    -    gritting his teeth.

    …

    -    [H] concerned “dad will get angry if I don’t stay with him”. 

    -    [H] said prefers living with mother as quieter less arguments/stress. 

    -    did relaxation – [H] very restless under table wanting to leave.

26. The child’s concern about his siblings’ negative attitudes to his positive attitude to his mother does not seem fanciful.  Within a short time of the other three children residing primarily with the father, each of them has virtually ceased having contact with the mother.  Such contact that has happened has been unpleasant, and the children’s behaviour towards her is able to be described as boorish or rude.  Nothing in the material available to the Court revealed why they would behave towards her in such a fashion.  This situation becomes an even greater conundrum when it is the father’s evidence he does everything in his power to support and encourage the children’s relationship with the mother.

27. The parents’ inability to resolve this situation suggests the other three children’s feelings are strongly held and require outside intervention before they are likely to soften.  As I explained during submissions, I would be very worried about the effect on the child’s relationship with his mother was he to reside primarily with his siblings.  At this stage, the evidence suggests there is a real risk in that environment, just as the child fears, that he would find himself under intense pressure to reject his mother.  The notes produced by the family consultant and Ms M indicate that this is something which would weigh heavily on the child, and would probably cause him intense distress.  These are matters which weigh heavily in favour of the mother’s application. 

28. On the other hand, if the child resides with the mother, the evidence does not suggest he would be under pressure to reject his siblings or father. 

29. The setting in which the child would be the most free in terms of being able to maintain relationships with his siblings and both his parents, would thus appear to be the mother’s rather than the father’s environment.  In coming to this view, I have not overlooked that during the second part of the Christmas 2010 school holidays, the mother refused many requests by the father, regrettably, numerous of which were made through the child, for the child to spend additional time with the father and his siblings.  However against the background of the lack of ongoing relationships between the other three children and the mother, it does not appear to me that the Court could reject as fanciful her concerns that if the child spent additional time with the father and his siblings during the 2010 Christmas school holidays, he may not have returned to her for the commencement of the school year. 

30. Appropriately and understandably, there was real emphasis in the submissions made by the solicitor for the father about the advantages to the child of residing with him.  Putting aside issues about sibling relationships, these included the child being able to attend high school with a number of friends from his junior school, and to live amongst friends and peers who he has known for a long time.  The type of social isolation in the mother’s environment as mentioned by the solicitor for the father, I agree is a factor to which it is appropriate to attach some weight in favour of the father’s application. 

31. In relation to the sibling group, before I could be satisfied, however, it is appropriate to prioritise the sibling group over, as I see it, the child’s relationship with the mother, I would need to know more about how healthy that sibling group is presently for this child.  There are signs that right now the sibling group is not one which is as healthy as the parties would hope.  I would be troubled that if the child lived primarily amongst his siblings, he may find himself belittled in the manner he described to Ms M.  On balance, I am satisfied it is in this child’s best interests, pending further order, to reside primarily with his mother.  In terms of the time he spends with his father, this has an obvious nexus to the issues I have identified in the child’s relationships with his siblings and the effect that that may have upon his relationship with his mother.

32. It was contended by the father, if the child lived with the mother, the Court should order in effect five nights in 14 for the child with him.  The mother submitted three nights plus an additional evening where the child could have dinner with his father and siblings, if that was the father’s choice.  On balance, I consider the mother’s approach is more appropriate at this time.  It strikes the right balance between preserving and promoting the child’s ongoing relationship with his siblings and father, without placing the child in a situation with a degree of pressure from his siblings which is unendurable. 

33. Otherwise, there are a suite of orders proposed by the mother in relation to choice of school, school holidays and as I understood it, there was no argument that those orders or something closely akin to them should be made.  The father was willing to deliver the child to school after the child has been with him, and for the time being that is the preferred course.  It gives the father and child some individual time together and makes sure the child arrives at school at the appointed time.  The mother says she will arrange for the child to be delivered to the father after school. 

34. For these reasons, I am satisfied the orders I am about to make are in the child’s best interests.

I certify that the preceding thirty-three (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 February 2011.

Associate:                 

Date:    5 April 2011