Zarins and Mylne (No. 5)
[2013] FamCA 1008
•19 December 2013
FAMILY COURT OF AUSTRALIA
| ZARINS & MYLNE (NO. 5) | [2013] FamCA 1008 |
| FAMILY LAW – CHILDREN – Interim Orders – with whom a child lives – with whom a child spends time – best interests – consideration of updated family report – orders made for the child to live with the father and spend time with the mother as specified pending the final hearing of the matter. |
| Family Law Act 1975 (Cth) s 60CA; 60CC; 64B |
| Hall & Hall (1979) FLC 90-713 Goode v Goode (2006) 36 Fam LR 422 |
| APPLICANT: | Ms Zarins |
| RESPONDENT: | Mr Mylne |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kent, Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4802 | of | 2008 |
| DATE DELIVERED: | 19 December 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 17 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Nelson QC |
| SOLICITOR FOR THE APPLICANT: | Belchamber Legal |
| COUNSEL FOR THE RESPONDENT: | n/a |
| SOLICITOR FOR THE RESPONDENT: | Unrepresented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms West |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kent, Legal Services Commission of South Australia |
Orders
That paragraphs 2 of the orders made 3 October 2013 be discharged.
That B born … 2007 (“the child”) live with the father.
That the child shall spend time with the mother as follows:-
(a) From 3pm Wednesday 25 December 2013 until 6pm Wednesday 1 January 2013;
(b) From 6pm Wednesday 8 January 2014 until 6pm Wednesday 15 January 2014;
(c) From 6pm Friday 24 January 2014 until 6pm Monday 27 January 2014;
(d) From the conclusion of school on Monday 3 February 2014 until the commencement of school on Tuesday 4 February 2014 with such an arrangement to continue in each alternate weekend thereafter, with time to commence at 9am on the Monday if a given Monday is not a school day and to conclude at 6pm on the Tuesday if a given Tuesday is not a school day; and
(e) From the conclusion of school on Friday 7 February 2014 until the commencement of school Monday 10 January 2014 with such an arrangement to continue in each alternate weekend thereafter, with time to commence at 6pm on the Friday if a given Friday is not a school day and to conclude at 10am on the Monday if a given Monday is not a school day.
That paragraphs 3 and 4 of the orders made 3 October 2013 do continue.
That further consideration of the matter be adjourned to 9am on Wednesday 5 February 2014 (1 hour allowed) with liberty to vacate upon jointly signed letter being forwarded to … not less than 48 hours prior to the hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4802 of 2008
| Ms Zarins |
Applicant
And
| Mr Mylne |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the living arrangements of B (“the child”) in the wake of the dissolution of the relationship between her mother Ms Zarins (“the mother”) and her father Mr Mylne (“the father”). The child was born on in 2007 and as such is currently 6 years of age.
These proceedings commenced in late 2008. The matter has a long and complex history. Much of that was canvassed in my judgment published on 3 October 2013 (see generally Zarins & Mylne (No. 4) [2013] FamCA 749) and need not be repeated here.
Immediately prior to my earlier judgment, the child had been living with the father and spending limited supervised time with the mother. That arrangement had been in place since late October 2012 as a result of what appears to have been a psychiatric event that resulted in the mother being taken to hospital in the midst of a since abandoned final hearing before Macmillan J. The child had been living with the mother and spending limited supervised time with the father prior to the October 2012 orders of Macmillan J.
The matter was relisted for a final hearing commencing on 23 July 2013. That hearing was also ultimately abandoned as a result of the father being charged with three counts of rape against the mother. Those charges have since been withdrawn.
By way of Amended Application in a Case filed 15 July 2013, the mother sought orders pending the final hearing of the matter by which the child would live with the mother and spend time with the father on alternate weekends and special occasions. The father filed a Response to the mother’s Amended Application in a Case on 16 September 2013 which sought orders by which the child would continue to live with the father pending the final hearing of the matter and spend supervised time with the mother on alternate weekends and for a short period of time in the intervening week.
The mother’s Amended Application in a Case and the father’s Response to the same were heard before me on 23 September 2013. That hearing resulted in the judgment I handed down on 3 October 2013 in which I made the following orders:
(1) That further consideration of the matter be adjourned to 9am on 17 December 2013 (1 hour allowed).
(2)That during the period of the adjournment the child B born … 2007 shall spend time with the mother as follows:-
(a) Each alternate Saturday and Sunday from 9am to 5pm;
(b) From the conclusion of school (or 4.30pm if not a school day) to 7.pm Thursday in each alternate week.
(3)That all handovers not from the child’s school do occur inside the M Town Police Station between the father or his nominee and a person nominated by the mother, but in the absence of the mother.
(4) That the mother be and is hereby restrained from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from:-
(a) Attending at or in the vicinity of the child’s school; and
(b) Approaching the child at or in the vicinity of the child’s school.
(5)That the mother, the father and the said child shall attend upon Dr C upon such times as may be directed by the Independent Children’s Lawyer for the purpose of the preparation of an update Family Assessment Report, with such report to be published not later than 3pm on 13 December 2013.
(6) That a certificate be given to the applicant pursuant to Section 128 of the Evidence Act 1995 (Cth) in respect of evidence given in her trial affidavit filed 21 June 2013.
The updated Family Assessment Report completed by Dr C (“the Updated Report”) was filed by the Independent Children’s Lawyer on 16 December 2013 (Document 170). Affidavits were also filed on that date by the mother (Document 169) and the maternal grandmother (Document 171) that comment generally on the time the mother has spent with the child during the period of the adjournment and also seek to update the Court on the status of the father’s criminal charges and the mother’s mental health issues. An affidavit of the mother’s solicitor was also filed on 16 December 2013 (Document 172) which annexes a report of Professor R, a consultant psychiatrist upon whom the mother has been attending with regards to her mental health issues.
This judgment considers whether the living arrangement for the child pending the final hearing of the matter ought to be altered in light of the Updated Report of Dr C.
The Updated Report
This is the sixth report prepared by Dr C for these proceedings. As I noted in my previous judgment, this puts Dr C in the unique position of reporting on the extended dispute between the parties and the various incantations of the care arrangement for the child.
Dr C was provided with all relevant documentation from the court file to assist in the preparation of his report. In addition, he also interviewed the child, the father, the father’s partner Ms S, and the mother on 4 November 2013.
Dr C declares in an appendix to his Updated Report that he has read and understood Part 15.5 of the Family Law Rules 2004 (Cth) which deals with the use of expert evidence in the Family Court of Australia.
The Updated Report extensively details the interviews and observations conducted by Dr C on 4 November 2013 before providing a two-page “summary & opinion.” He makes the following recommendations:
(1) That the matter proceed to trial as soon as possible.
(2) That the Court focus on whether the mother is capable of exercising effective and respectful shared parental responsibility with the father or otherwise.
(3) That, in any event, the child remain predominantly in the care of the father but have regular time with the mother in the order of alternate weekends, one intervening overnight (such as Monday), and part school holidays.
(4)That the child have regular consultation with a suitable counsellor who can assist the parties to resolve any concerns that may arise for the child, and, in particular, ensure that the mother is not acting to undermine the positive role of the father in the child’s life.
(5)That, should the presumption of shared parental responsibility be upheld, attention be given by the Court to effective means of ensuring the mother is not able to destabilise the agreed care arrangements or the father’s role.
The mother’s submissions
Counsel for the mother began her submissions by referring to page 14 of the Updated Report, in which Dr C states that the child has “enjoyed greatly having more time with her mother and wishes to have even more still.” Counsel spoke against what she referred to as the “extravagant language” used by Dr C when describing her client, and submitted that much of the same would be tested at the final hearing of the matter.
Counsel then referred to page 11 of the Updated Report in which the child is quoted by Dr C as saying she “feels better” after spending more time with the mother and that her preference for her living arrangements would be “two weeks each, two whole weeks and two whole weekends.” She is then quoted as saying that she hopes her “mum and dad sort it out”, with “it” presumably referring to these proceedings.
In response to Dr C asking “if there was anything at dad’s that made her upset”, the child said “sometimes he gets a bit angry, yells at me and it hurts my feelings, but only sometimes.” When asked if “there was anything at mum’s that made her upset” the child said “only when I’m going back to dad’s ‘cause my tummy hurts. I’m scared that he might ask me why I always ask is [Ms S] in the car. He thinks it’s annoying when I keep saying it. When asks why the father asks the child this, the child said “I like to talk to him when we’re going home.”
Counsel contended that this was a clear expression of what the child wants. She further noted that any issues surrounding the father’s partner Ms S should be left for resolution at the final hearing when contested issues of fact can be resolved through the giving of evidence.
Counsel further argued that the child spending more time with the mother will reassure the child and will probably have the effect of assuaging some of the child’s anxiety concerning the dispute between her parents. With regards to the negative comments made in the Updated Report about the mother, the mother’s counsel argues that Dr C goes beyond his role as an expert witness and “prejudges” certain issues without any evidence, and that much of the report will be tested at trial.
Counsel noted that, whilst the mother has been accused of “bad mouthing” the father, the father himself was encouraged by Dr C to find a “less reactive way of managing” when the child asks the father whether his partner is in the car when handovers are occurring, a question which the father apparently believes is the result of the mother’s negative influence on the child.
Counsel then referred to the report of Dr R (see Annexure A of Document 172) and noted that Dr R found “no indication of psychosis or cognitive impairment” in the mother and that her mood was “normal”. The report also notes that “there is evidence to support a diagnosis of PTSD” in the mother and that the mother is “distressed by any reminder” of the father.
Counsel contended that the report was proof of the fact that the mother was receiving appropriate psychological therapy and that Dr R made no criticism of her capacity to be an effective parent.
Counsel then argued, with reference to the recently filed affidavits of the mother (Document 169) and the maternal grandmother (Document 171), that the time the mother and the child have been spending together has been beneficial and that no issues have arisen throughout the period of the adjournment.
Elsewhere, counsel for the mother noted that the three charges of rape pending against the father had been withdrawn as a result of the mother requesting that such a withdrawal occur. Both the mother and the Independent Children’s Lawyer took issue with whether the withdrawal of the charges occurred as a result of the mother’s request or as a result of some other factor. I don’t consider it necessary or even particularly relevant to resolve that factual conflict today.
Counsel concluded by noting that the mother, upon reflecting on the Updated Reports and the transcription of the child’s comments therein, was no longer seeking that the child live with her and spend time with the father but rather was now supportive of a shared care arrangement. She asked that the move to shared care commence immediately. Alternatively, and if I was not amenable to such a sudden change in the child’s living arrangements, the mother asked that the child spend time with her in accordance with the recommendations of the Updated Report.
Counsel also noted that the mother would like “half of” Christmas Day with the child as she spent very little time with the child on Christmas Day 2012. She was happy for that time to commence in the afternoon, but not “too late” given the fact that the child is young and likely to tire quickly.
The father’s submissions
The father’s former solicitors filed a Notice of Ceasing to Act on 11 December 2013 (Document 168). The father appeared at the hearing before me on 17 December 2013 unrepresented.
When called upon to make submissions, the father sought an adjournment of the hearing until after 20 January 2013, that being the date in which the solicitor in charge of his file at the law firm which previously represented him would return from annual leave. The father confirmed that the lawyers’ annual leave was not the reason that the Notice of Ceasing to Act had been filed. The father had given no formal or informal intimation to either the Court, its staff, or counsel for the mother or the Independent Children’s Lawyer that he would be seeking such an adjournment until he was called on to deliver his oral submissions partway through the hearing.
I informed the father that I was not amenable to acceding to his request for an adjournment of the hearing in the absence of interim orders being made. I noted that the orders made by me on 3 October 2013 ceased on the day of the 17 December 2013 hearing, and that I was not going to adjourn the proceedings without putting in place orders by which the child would spend time with her mother pending the final hearing of the matter.
I told the father that, even on the most generous view of the Updated Report to the father, the recommendations were that the child should spend more time with the mother. I then gave him the opportunity to put submissions to me as to his views on the merits of increasing the child’s time with the mother. He chose not to use that opportunity.
Elsewhere, the father noted that he was not opposed to the child spending time with her mother on Christmas Day, but that he would prefer that such time commence sometime in the afternoon.
The independent children’s lawyer’s submissions
Counsel for the independent children’s lawyer (“ICL”) noted that the ICL’s concern when I made the orders on 3 October 2013 was whether the mother, now that her time with the child was unsupervised, would seek to alienate the child from the father or in some way denigrate the father to the child.
Counsel submitted that the ICL’s view was that the child should be protected as much as possible from the acrimony between the parties and that the ICL has ongoing concerns about what the mother might say to the child. Counsel referred to comments in the Updated Report that were said to confirm those fears, though counsel also acknowledged that I would be unable to make any findings on those issues given the interim nature of the hearing.
Counsel urged that I take a cautious approach to the matter and that I limit the opportunity for the child being subjected to the negative views that each parent holds about the other parent. Given that at present the child is in the primary care of the father, this submission must be directed toward the mother.
With reference to the report of Professor R, counsel for the ICL noted that the report suggests that the mother’s history of making untrue statements in court documents may reflect “personality factors” which are “long-term” as opposed to the episodes being related to “any specific acute psychiatric condition.”
Counsel noted that the ICL supports the recommendations in the Updated Report concerning the alternate weekends and overnight on the intervening week arrangement, but did not agree that it was appropriate that the child spend weeklong periods with the mother during school holidays periods. Counsel noted that the recommendations in the Updated Report will minimise handovers and as such reduce the potential for conflict between the parties.
The law on interim parenting orders
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the framework within which parenting orders can be made on both a final and an interim basis. Specifically, s 64B(1)(a) of the Act empowers me to make a parenting order “until further order.”
The child’s best interests are the paramount consideration in the making of any parenting order (s 60CA), with a list of considerations of how the best interests of a given child are to be determined provided in s 60CC of the Act. That list includes both primary considerations (s 60CC(2)–(2A)) and additional considerations (s 60CC(3)).
The Full Court of the Family Court of Australia (Bryant CJ, Finn and Boland JJ) in Goode v Goode (2006) 36 Fam LR 422 at 442 (“Goode”) commented on the appropriate manner in which interim parenting disputes should be conducted:
... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The child’s time with the mother pending the final hearing of the matter
Whilst there is no “magic” in a family report, “family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions” (see, eg, the comments of Evatt CJ, Fogarty and Yuill JJ in the Full Court of the Family Court of Australia decision of Hall & Hall (1979) FLC 90-713. So it is with the Updated Report prepared by Dr C. Dr C’ report has been helpful for a number of reasons. Firstly, it offers an experienced view, not just in terms of general academic and professional experience but also specific experience of the dynamics of this particular parenting dispute as to how the child’s living arrangements should be arranged pending the final hearing of the matter. Secondly, it faithfully transcribes comments made by each of the main actors in this dispute, namely, the mother, the father, and the child.
I am satisfied that the time between the child and the mother that has occurred in the wake of my 3 October 2013 orders has been in the best interests of the child in that it has helped to forge and strengthen the meaningful relationship between the child and her mother without exposing the child to any risk of physical or psychological harm or family violence. The affidavits of the mother and maternal grandmother confirm this to be the case, and the father, despite being given an opportunity to make submissions against this contention, chose not to do so. If the father had any real and genuine concerns about the time the child was spending with the mother, he would have raised them when given that opportunity regardless of whether he was represented or not.
Dr C’s Updated Report has confirmed that the child has enjoyed the time she has spent with her mother during the period of the adjournment and that she seeks to spend an increased amount of time with her.
Counsel have informed me that the working commitments of both parties are flexible enough so as to be capable of working around any parenting orders which I may make today. In addition, I am told that the mother is on annual leave until 19 January 2014.
I am cautiously inclined to take a more optimistic approach to the matter than the ICL is encouraging me to do in that the orders I will make concerning the time the child will spend with the mother pending the final hearing of the matter are largely in accordance with the recommendations of Dr C in his Updated Report. I note that I have not accepted automatically the views of Dr C, but, rather, have found his views and recommendations to be consistent with the rest of the body of evidence before me (Evatt CJ, Fogarty and Yuill JJ in the Full Court of the Family Court of Australia decision of Hall & Hall (Supra).
That is, commencing on the afternoon of Christmas Day, the child will spend two week long periods with the mother separated by a week long period with the father. Thereafter, a routine will be commenced whereby the child will spend an extended weekend with the mother from the conclusion of school Friday until the commencement of school Monday each alternate week and then spend Monday night from the conclusion of school until the commencement of school on Tuesday in the intervening week. Contingencies are provided for in the event of pupil free days that will have the effect of the child spending increased time with her mother on those days.
Miscellaneous issues
I have ordered that the parties are to appear before me again at 9am on Wednesday 5 February 2014 with one hour allowed. The father was hopeful, if not confident, that he would be able to re-engage the services of his former solicitors by that stage. If he is unable to do so, the parties will have liberty to vacate the hearing by way of jointly signed letter being forwarded to my associate. I have no doubt that the father appreciates the urgency of these proceedings and will do everything in his power to ensure that he is represented well in advance of the adjourned date.
I intend to make trial directions at the adjourned date with the hope of having the matter listed for final hearing either before me or another judicial officer from the Adelaide Registry sometime in mid-2014. Both parties and the Independent Children’s Lawyer should be prepared to give estimates as to the length of the final hearing as well as the names of any witnesses that they intend to call. The Updated Report recommends an urgent trial. The parties agree with that recommendation. Unfortunately, the practical reality is that mid-2014 is the earliest date that such a trial can be accommodated by me.
Handovers will continue to be conducted in the manner provided for in paragraph 3 of my orders dated 3 October 2013. The new orders concerning the time the child is to spend with the mother will have the effect of increasing the amount of handovers that take place at school and thereby decreasing the amount of handovers that take place at the M Town Police Station. The diminution of the time the parties spend in each other’s’ general vicinity will hopefully eliminate the potential for conflict between the parties.
I note that I have also continued the injunctive order I made on 3 October 2013 that prevents the mother from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from attending at or in the vicinity of the child’s school or approaching the child at or in the vicinity of the same. The ongoing appropriateness of that order will be a matter for the final hearing.
Finally, I note that the Updated Report also recommends that the child undergo counselling. I didn’t receive any meaningful submissions from counsel on this point, and as such I am not inclined to make a general order for therapy for the child without the input of the parties. The adjourned date will be an appropriate occasion for the parties to put to me any proposals they may have as to counselling for the child.
Conclusion
For the foregoing reasons, I make the orders that commence at page 2 of this judgment.
I certify that the preceding forty nine paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 December 2013.
Associate:
Date: 19 December 2013
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