YOUNG & YOUNG

[2015] FCCA 867

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNG & YOUNG [2015] FCCA 867

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where father seeks to spend further time with the parties’ two children – where mother raises concerns about the father’s mental health.

PRACTICE AND PROCEDURE – Court expert – appointment of clinical psychologist as court expert.

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 68B

Federal Circuit Court Rules 2001, r.15.09

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR YOUNG

First Respondent: MS YOUNG

File Number: WOC 930 of 2013

Judgment of: Judge Scarlett

Hearing date: 31 March 2015

Date of Last Submission: 31 March 2015

Delivered at: Wollongong

Delivered on: 31 March 2015

REPRESENTATION

Solicitor for the Applicant: Ms Stansfield

Solicitors for the Applicant: Marriott Oliver Solicitors

Solicitor for the Respondent: Ms Vincent

Solicitors for the Respondent: Watts McCray Lawyers

Solicitor for the Independent Children’s Lawyer: Mr Williamson

Solicitors for the Independent Children’s Lawyer: Verekers Lawyers

ORDERS

1. Orders 1 and 2 made on 5 February 2014 are discharged.

2. The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010.

3. The children X and Y are to live with the mother.

4. The father is to spend time with the children during the school term as follows:

   (a)From 4:00 pm on Thursday 2 April to 4:00 pm Friday 3 April 2015;

   (b)Each alternate weekend from 9:00 am on Saturday to 4:00 pm on Sunday; and

   (c)In the off week from immediately after school on Thursday until the commencement of school on the Friday morning.

5. The father is to spend time with the children during the shorter school holiday periods from 4:00 pm on the middle Friday of the school holidays until 4:00 pm on the following Monday commencing with the Winter School Holidays in June and July 2015;.

6. As prescribed by Rule 15.09 MS A, Clinical Psychologist, is to be appointed as Court Expert to inquire into and report on matters relating to the father’s mental health.

7. Each of the parties is to attend upon the court Expert for such interviews as she requires at any reasonable time nominated by the Court Expert.

8. In the first instance and subject to any further order of the Court the mother is to be solely liable to pay the costs of the Court Expert.

9. The parties are to provide to the Court Expert for the purposes of preparation of her Report any documents that she may reasonably request, including but not limited to:

   (a)A copy of the Family Report of Ms M dated 22 December 2014;

   (b)Copies of all Applications, Responses, affidavits and other relevant documents filed in these proceedings;

   (c)Copies of Orders made in these proceedings; and

   (d)Copies of subpoenaed documents produced in these proceedings.

10. Both parties are restrained by injunction from:

    (a)Discussing these proceedings with either or both of the children or in their presence or hearing; and

    (b)Criticising or denigrating the other party to or in the presence or hearing of either or both of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WOLLONGONG

WOC 930 of 2013

MR YOUNG

Applicant

And

MS YOUNG

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case by the father of two children for interim orders substantially increasing the time that they spend with him.  The children, X, known as X, born on (omitted) 2008, and Y, born on (omitted) 2010, both live with their mother and spend time with their father in accordance with interim consent orders entered into by the parties on 5 February 2014. 

2. The interim consent orders provide that the children spend time with their father from 10 am to 4 pm on alternate Saturdays and 3.30 to 5.30 pm on alternate Wednesdays.

Orders Sought 

1. The father seeks orders that the children should spend time with him in a graduated program increasing in three month intervals commencing with 9 am on Saturday to 4 pm on Sunday on the first weekend of the fortnight and after school on Thursday until the commencement of school on Friday.  This arrangement would see the children spending two separate nights each fortnight with their father and his partner.  The father then seeks that after a period of three months the children’s time with him should increase so as to provide that the weekend time with him should commence after school on the Friday rather than the Saturday morning.  He seeks further progression after that.

2. The Independent Children's Lawyer in the case outline document gives some support to the father’s proposal for increased time.  The Independent Children’s Lawyer does not support a graduated program, but does support orders providing that the father should spend time with the children during school term times, each alternate Saturday from 9 am to Sunday at 4 pm and each alternate Thursday after school until Friday before school.  The Independent Children's Lawyer also suggests that the father should spend time for a period of three nights during shorter school holiday periods, which would be from effectively the middle Friday of the school holidays, noting that these school holidays about to come start on Friday, to 4 pm on the second Monday, a block of three nights in the middle of the holiday period.  The Independent Children's Lawyer also suggests an order should be made for joint long term parental responsibility and that the children should continue to live with their mother.

3. The mother opposes the orders.  She seeks dismissal of the father’s Application in a Case, which would mean that the current spending time arrangements would continue unchanged.  Significantly, she seeks the appointment of a clinical psychologist as a court expert to inquire into matters relating to the father’s mental health.  It was not a subject of pleadings filed before me, but the Independent Children's Lawyer, Mr Williamson, expressed concern about evidence of statements allegedly made by the father to the children and relayed to the mother, which related to these proceedings and were critical of the mother, to put it mildly. 

4. I have read the affidavits of the parties filed in connection with this interim application and their earlier affidavits.  I have also had recourse to the family report prepared by Ms M and completed on 22 December.  That report was admitted into evidence and marked as exhibit 1.  There are also documents from the police which had been produced on subpoena, and they were tendered by both parties, or relied upon by both parties, and they related to allegations of fraud said to have been perpetrated by the mother.  They were admitted into evidence.  The fraud allegations form a part of the father’s consistent negative views of the mother.  As Ms Vincent, who appeared for the mother, submitted, the thrust of the father’s affidavit evidence related to the shortcomings of the mother and was significantly lacking in any details of positive matters, such as his own parenting and his proposals as to what he would do with the children if they were to spend extra time with him, as sought in his application.  Whilst the father’s evidence was directed mainly against the mother, it is not the case the father is seeking that the children should not live with her;  rather that he is seeking that the children should spend more time with him, but continue to live with their mother. 

5. The Family Report has been admitted into evidence and I found that report extremely useful.  It is of course untested and it is certainly the case that in many proceedings under the Family Law Act 1975 (Cth) one or both parties may seek to cross-examine the family consultant who prepared the Report in order to test the conclusions reached and the basis or bases for those conclusions. In what has been described in the leading case of Goode & Goode[1] as the “truncated procedure” adopted in interim hearings, the family consultant has not been cross-examined about her report, nor too have the parties. 

   [1] [2006] 1346; (2006) 36 Fam LR 422; FLC 93-286

6. The advantage I see in the family report is that it is an independent document.  The parties’ affidavits on each side are of necessity partisan and are of the “he said, she said” variety.  It may well be that on a final hearing the evidence of the parties will be tested and there may be some doubt thrown one way or another on the affidavit evidence.  That is not available to us at an interim hearing.  It is well established, certainly by Goode & Goode[2], that a court should not seek to make a finding of fact if there are disputed matters of fact on the basis of untested evidence.  There may well be other evidence, of course, that will allow the court to make a definitive finding of fact.   

   [2] supra

7. One issue that arose is the father’s allegations of fraud by the mother, which seems to have been a preoccupation of his for some period of time.  The documents produced on subpoena from the New South Wales police indicate that the likelihood of any prosecution being launched in respect of this alleged fraud is low to non-existent and the police are of a view that evidence sufficient to bring a prosecution is just not there.  Ms Vincent for the mother has submitted to the Court that the father spoke to the family consultant in the preparation of the Family Report on the basis that the investigation by the police and by forensic accountants was under way and ongoing, when it certainly appears from the evidence before the Court that that is not the case.  The father’s view is that he was in the process of appointing a forensic accountant.  Be that as it may, the police evidence on subpoena is to the effect that the police regard the investigation as closed and no prosecution will be forthcoming. 

8. It is a theme of the mother’s evidence that the children report denigratory comments made by the father, either to the children or in their presence, which they relay to her.  Of course this is untested evidence from one party, but it is a matter of concern.  If those matters were established, it would be concerning indeed for children as young as these two little boys to have to listen to critical comments about one of their parents, and indeed a parent who is their primary caregiver. 

9. It is quite clear, as the Independent Children's Lawyer said to the Court, that the level of communication between these parents is poor.  It certainly is.  It also appears from the affidavit evidence that the level of trust between these parents is poor to non-existent. 

10. The father, as I said, seeks that the children should spend more time with him and that would include some overnight time.  His initial proposal would be restricted to two separate nights, in other words, no more than one night per week, with some weekend time and in the off week a short overnight period.  The mother’s concern about that is that the father’s reported behaviour, as she sees it, and particularly his comments, have the potential to be psychologically damaging to the children due to this constant denigration of her and also due to the somewhat bizarre statements that the children report that the father has stated.  It should be made quite clear that the statements that the mother refers to are second-hand hearsay and may not be accurate.  However, the thrust of the mother’s case is that the Court, when considering the best interests of the children, should not increase the risk of the children being subjected to psychological harm by being further exposed to the statements or actions of their father. 

11. There is no allegation that the children are at risk of physical harm by either party, but of course, as Ms Vincent points out, that when one considers under subsection 60CC(2) of the Family Law Act 1975, the balancing act that the Court often has to undertake between considering the benefit to the children of a meaningful relationship with both parents on the one hand and protecting the children from physical or psychological harm from being subjected to or exposed to abuse and neglect or family violence, that the need to protect the children must be given greater weight. 

12. The mother’s concerns about what she says with the father’s behaviour, described at one stage in the family report by the use of the term “paranoia”, although which appears to me to be more of an obsession, are that she is of the view that the Court should not make any variation to the parenting orders until the Court has appointed and obtained a report from a clinical psychologist to deal with the mother’s concerns about the father’s mental health.  This has been an ongoing issue.  It was not previously pursued by the mother because it was opposed by the father and the mother at that stage did not have the funds available to pay for such a report herself.  She now has sufficient funds, her solicitor tells the Court, for a clinical psychologist to be appointed and she has ascertained that Ms A, who, as I have said, is well known to the Court, has time available in the reasonably foreseeable future to conduct interviews with the parties and prepare a report for the Court.  Until then, however, the mother is of the view that the father’s time with the children should not be increased. 

13. Against this, it is submitted by Ms Stansfield for the father that there is no evidence of an unacceptable risk to the children and this view is supported to some extent by the Independent Children's Lawyer.  The Family Report, paragraphs [41] through to [44], expresses the concern that the amount of time the children are currently spending with their father is not considered sufficient to support their having a significant relationship with him and makes a firm recommendation his time should be increased.  Both the Family Report and the parties’ affidavits refer to the expressed wishes of the children,  although, as Ms Vincent has pointed out, the children are both young children and not a great deal of weight should be given to their expressed wishes, if any weight is given at all. 

Consideration

1. The Court is required when dealing with parenting issues to consider a number of matters that are found in part VII of the Family Law Act. The objects and principles are set out in section 60B.

2. The principle under section 60CA of the Act is that the best interests of the child or children in this case must be the paramount consideration.

3. Section 60CC, to which I have already referred briefly, sets out the way in which the Court determines what proposals are in the best interests of the children. Subsection 60CC(2) contains the primary considerations, being the benefit to the children in having a meaningful relationship with both parents, and in paragraph (b) the need to protect the children from physical or psychological harm. The additional considerations are to be found in subsection 60CC(3). The first of those can be found in paragraph (a), which relates to any views expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give to the child’s views. This, in my view, is a particularly apt paragraph, because there is clear evidence of the children expressing a view that they wish to spend more time with their father, but there is a caution in submissions on behalf of the mother that the Court should give little or no weight to those views. Ms Vincent is, of course, referring to the children’s comparative lack of maturity and level of understanding brought about by their age.

4. The Court also considers the nature of the relationship of the children with each of their parents and other persons;  the extent to which the children’s parents have taken or failed to take the opportunity to spend time with the children and participate in making decisions about them and communicating with them.  And clearly this is a case where the father wishes to spend more time with his children.  The Court looks at the extent to which the parents have fulfilled or failed to fulfil their obligations.  The Court looks at the practical difficulty and expense of children spending time with and communicating with their parents.  As there is an ongoing parenting arrangement at the moment, an increase of time or a continuation of the present orders should not involve, in my view, an additional practical difficulty or expense.  It is relevant in subparagraph (f) that the capacity of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs, is a very relevant issue.  The father is critical of the mother’s care of the children.  The mother expresses views about the father’s mental state, his obsession with her shortcomings, which, in her view, would impact upon his ability to care for the children.  The maturity, sex and lifestyle and background of the children is important, and I’ve already commented on the relatively young age of these two boys.  There would have to be a concern about the attitude to the children and the responsibilities of a parent were demonstrated.  There is no evidence of family violence or any current family violence order, but these are all matters that the court must consider. 

5. The Court must also consider the presumption of equal shared parental responsibility, as set out in section 61DA of the Act and whether there are circumstances such as family violence that would mean the presumption would not apply, or whether there are circumstances where it would not be in the best interests of the children for the presumption to apply although under subsection (3) of course the Court normally would find that the presumption applies, but there could be reasons why it would not. I have considered those matters.

6. If the Court makes an order for equal shared parental responsibility the Court must look at the matters under section 65DAA of the Act, including first of all consideration of whether it is in the children’s best interests and reasonably practicable for them to spend equal time with each of their parents or, failing that, whether it is in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each of their parents.

7. Again, I go back to the Family Report. At paragraph [41] Ms M expresses the view:

   X and Y, given their ages and especially given the poor parental relationship, are likely poor candidates for the successful implementation of an equal time parenting arrangement.  This author agrees with Mr Young and Ms Young that at this point in time an arrangement whereby X and Y live primarily with their mother is more ideal than one where they live in an equal time parenting arrangement.

8. However, the family consultant also says that the amount of time that the boys are currently spending with their father is not considered sufficient to support their having a significant relationship with their father and goes on to say:

   Only in circumstances where there are significant problems within a family, for example, significant parental capacity issues, significant risk of harm concerns and/or significant vulnerabilities within the subject children would one consider limiting the children’s relationships with their father.  This assessment, notwithstanding other evidentiary material that may become available before the court, does not support such limitations. 

9. The family consultant does refer to the children’s express wish to spend more time with their father.  The family consultant reiterates communication between the parents is poor, with each parent being highly suspicious of the other and each reporting repeated and consistent breakdowns in communication. 

1. In my view, this is a matter where, as the Independent Children's Lawyer suggests, there should be an order for equal shared parental responsibility. That, of course, is an interim order and is made quite clear by section 61DB of the Act when the Court is considering making a final parenting order it must disregard the allocation of parental responsibility made in an interim order.

2. I am quite satisfied that this is not on an interim basis a case where the children should be the subject of an equal time arrangement and it is certainly the case that the children are spending considerably less time with their father than would be regarded as substantial and significant time.

3. Even if the Court were to make the significant changes to the parenting arrangements submitted on behalf of the father, the orders would barely approach substantial and significant time.  When one looks at the more limited approach submitted by the Independent Children's Lawyer, it would fall short of substantial and significant time, but it may well be argued that a conservative approach being taken by the Independent Children's Lawyer should be an approach that finds more favour with the Court. 

4. I have considered all of the matters under the various sections insofar as they are relevant.  I am mindful of the fact that the evidence on affidavit is untested and that the family report is untested by cross-examination.  Nevertheless, it is an independent document that does provide some support for the father’s case.  In my view, it is in the children’s best interests for the Court to make an order increasing the amount of time that the children spend with their father. 

5. That said, I am of the view that the Independent Children's Lawyer’s conservative approach, rather than the more expansive proposal submitted on behalf of the father, is the approach that the court should take, but there are other issues.  One of them is whether or not a clinical psychologist should be appointed as a court expert.  Ms Stansfield for the father submits that it is unnecessary.  Ms Vincent for the mother is adamant as to the necessity and the Independent Children's Lawyer has reminded the Court that this has always been an issue.  It was not previously pressed for reasons including the reason of cost, but that has now come to a position where the cost is bearable by the mother, and it is the mother who proposes that she should pay, at the first instance at least, the fee for the court expert, if one is to be appointed.

6. In my view, the pleadings and the submissions that I have heard today make it clear that the mother raises a significant issue about the father’s mental health.  His constant criticism of the mother, constant denigration of the mother and at times views about whether it’s fraud or the bona fides of the mother, which seem not on an objective basis to be highly credible, do raise a concern.  It may well be that if a clinical psychologist is appointed she may provide a report which settles that issue once and for all.  Whilst I’m certainly not persuaded at this stage that the complaints about the father’s obsessive behaviour create an unacceptable risk for the children in spending more time with him, I am of the view that the appointment of a clinical psychologist as court expert is warranted.  The Independent Children's Lawyer submitted very early on in the proceedings that the more resources that the Court has available to decide this important issue about the children’s welfare, the better.  With respect, I agree and I propose to make that order.  I am of the view that Ms A, who is well known to the Court, as a clinical psychologist who has provided reports to this court, not only here in Wollongong, but particularly in the Sydney Registry, would be an appropriate person to be appointed and I propose to make an order appointing her.

7. That gets to the third issue that is raised, which is the allegations of critical denigratory comments that are being relayed by the children about the parents, particularly in the mother’s affidavit about comments said to have been made by the father.  Whether these comments are being made or not, it cannot be in children’s best interests for one parent to be criticising the other parent to the children or in their presence.  These are young boys.  Criticism of one parent by the other is unsettling and disturbing for them.  These children do not have to be in the middle of the conflict between the parents.  It is an adult matter.  It is not a matter for two little boys.  I propose to make some injunctive orders, which must be complied with.  They are being made in order to protect the children from being exposed to harmful comments.  It is quite inappropriate for parties to discuss parenting proceedings with young children and it is quite inappropriate for parents to criticise the other parent to the children or in their presence.  That is not in the best interests of children.  If it is happening, and I stress the word “if”, it must stop.  I do not see any hardship to either party in an injunction being made to protect the children from harmful comments made by one or other of their parents. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  10 April 2015