FEDERAL MAGISTRATES COURT OF AUSTRALIA
LEOS & LEOS	[2012] FMCAfam 393	

FAMILY LAW – Interim parenting – young children – high conflict.	

Family Law Act 1975, ss.60CC, 65DAA	

Goode & Goode (2006) FLC 93-286	

Applicant:	MR LEOS	

Respondent:	MS LEOS	

File Number:	SYC 6210 of 2010	

Judgment of:	Altobelli FM	

Hearing date:	20 April 2012	

Date of Last Submission:	20 April 2012	

Delivered at:	Sydney	

Delivered on:	20 April 2012	

REPRESENTATION
Solicitors for the Applicant:	Mr Reeve	

Solicitors for the Respondent:	Mr Jordan	

ORDERS
(1)	The matter be adjourned to 30 May 2012 at 9:30am for mention.
(2)	Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the Legal Aid Commission of NSW is requested to provide such representation. 
(3)	The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney	
SYC 6210 of 2010
MR LEOS	
Applicant

And

MS LEOS	
Respondent

REASONS FOR JUDGMENT
Ex Tempore
1.	This application relates to three children. [X] and [Y], who are three and [Z], who is two.
2.	There are three constant things that have occurred in [Z]’s life: his mum, his dad and their litigation about him and his sisters.  The father is the applicant and he seeks a number of orders in relation to the children spending time with him.  Some interim orders were made on the last occasion, that is, 19 March 2011 for the children to live with their mother and to spend time with their father on Mondays, Wednesdays, Fridays and on Saturdays, as set out in that order.
3.	Whatever the father’s proposals may have been at the time of filing his application, his proposal today, expressed through his solicitor Mr Reeve, is that he have some overnight time, commencing with overnight on Wednesdays and on Saturdays.
4.	The mother’s proposal was articulated through her solicitor, Mr Jordan, and she proposes, in effect, that there be a slight extension of the existing arrangement so that the father’s time with the children, mid-week, starts a little bit earlier, if he can get time off from work and that, perhaps, there be additional time on weekends.  
5.	The major issue that I need to decide for all practical purposes is whether and, if so, when overnight contact starts.  The applicable law is, of course, contained in Part VII of the Family Law Act and the Full Court’s decision in Goode & Goode (2006) FLC 93-286 contains a discussion of the relevant law and a template for dealing with these matters.  I incorporate into these my ex tempore reasons, a number of paragraphs from that judgment, including paragraph 82, paragraph 68 and paragraph 72.
6.	Just focussing for a moment on the applicable law, I think there are specifically two sections that relevant – section 60CC that seeks to explain or unbundle what is in the best interests of children, and section 65DAA, because in that section I am required to consider certain things whenever I make an order for equal shared parental responsibility.
7.	On the facts of this case I am not going to make an order for equal shared parental responsibility at this stage but, in the context of resolving an issue about overnight time for young children, I still think that the criteria set out in section 65DAA assists me in understanding how to make an order that is in the best interests of these children and, in particular, I am assisted by the definition of what is reasonably practical in subsection (5) of section 65DAA.
8.	The father wants to spend overnight time with his children because he says it would give him a fuller experience of their lives and give them a fuller experience of his life.  The father has deposed in his affidavit to the nature and extent of his involvement in the children’s lives, including doing some of the mundane parenting tasks.  
9.	When one looks at the mother’s affidavit there is a dispute not so much as to whether or not he did, in fact, assist. She seems to accept that, but the dispute focuses about how often and of the consequences of that. Inherent in the father’s proposal is that he wants to go back to where he once was in terms of being a hands-on father for these children.
10.	I need to take into account a number of matters including the ability of the mother and father to implement an arrangement for overnight time, their ability to communicate and the level of conflict that exists between them.  Now, curiously, whether I categorise these matters under section 65DAA(5) or as section 60CC considerations, it does not matter.  It is all covered there.  They are the main legal and factual issues.
11.	I think there is some common ground in this case, or certainly uncontested facts.  The family consultant’s memorandum to court of 13 April contains some common ground.  For example, the report that both parents make is that the father has come and gone a number of times in the past three years – the last time being November 2011.  The mother asserts that it is five or six times.  Even a reading of the father’s affidavit indicates that he has come and gone a number of times.  So whilst it is true that on his case he has been a hands-on, involved father, it is also true, even on his case, that there have been frequent absences.  Thus one of the issues in this case is about the consistency of his past involvement in the children.
12.	The father, through his solicitor Mr Reeve, I think also made a number of concessions or statements that I would put into the category of common ground or uncontested facts.  For example, in submissions, Mr Reeve, when pressed by me, accepted that the mother has been primary carer for these children and that is an appropriate concession even on the father’s evidence.
13.	Mr Reeve described the interaction and the relationship between the parents in the following terms: “They work constructively when it is not volatile, but when it is volatile,” I think he said, “it’s bad.”  Anybody reading the affidavits of the mother and the father would reach the same conclusion.  The level of conflict in this case is another uncontested fact.
14.	One of the curious features of the way in which the case of both the mother and father was presented before me this morning, is that both the parties, through their lawyers, seem to be saying that, notwithstanding a very volatile past, they seem to be managing the short bursts of contact, if I can call it that, in the mother’s home reasonably well. I am both surprised and somewhat sceptical, but there it is.  Nobody so far makes a complaint about what is happening with contact in circumstances where the father goes to the mother’s home.  This may well be an example of what Mr Reeve was referring to as working cooperatively when they are not being volatile.
15.	It is very positive for the three children that they see their mother and father together in the family home, working cooperatively to provide care and nurture for them. Indeed, that is probably the best possible signal that the children could receive.  The reality is that this has occurred in a context where there have been high levels of conflict between the parents.  This may well be a case where the parents are able to manage the conflict and protect the children from it.  I do not know at this stage.
16.	Mr Reeve, in his submissions, referred to the potentiality of toxic conflict in the home, and it is the risk of that conflict that I am seeking to manage in these interim orders, particularly in the context where increasing the children’s time with the father and taking them away from both the mother and the mother’s home for an overnight, is likely to increase the mother’s anxiety and present a change in the children’s lives that they have not experienced before and which might be challenging to them.  Mr Reeve submitted that ordering overnight time would be an adventurous step, he said, but not a leap of faith.  Given Mr Reeve’s extensive experience in this jurisdiction, such a comment, I think, is very insightful.  Do the parents really want me to make an order that might be an “adventure” for [X] and [Y] and [Z]?  I am not sure they do.
17.	This case presents a real dilemma.  On the one hand, there is every reason to be concerned about the level of conflict.  On the other, as I have indicated, both the mother and father are reporting that the contact that was ordered a month ago seems to be working well, both for them and for the children, which suggests they are able to contain and manage that contact.
18.	To introduce overnight time at this stage is taking a risk with these children.  I ask myself where is the least risk for them, where can I cause the least harm for them?  If I make the order for overnight contact, as the father proposes, and that exposes the children to too much change, particularly in terms of separation from their mother, then I expose them to the risk of psychological harm that might be difficult to remedy.
19.	If I do not make the orders proposed by the father, he continues in an arrangement that enables him to see the children for short bursts several times a week and an arrangement that he himself acknowledges is working well.  The current order ensures that the factors are in place for him to have a meaningful relationship with them.  It is not ideal and I accept he wants more but at least it is providing that continuity in relationship that is so important at this stage in their lives.
20.	And, of course, if I act too conservatively, I am depriving the children and the father of having a deeper relationship with their father and all the benefits that would potentially flow from having overnight time.  But this can easily be fixed up.  If I am wrong in adopting a conservative approach, if I am wrong by not ordering overnight contact for the time being, that is something that can easily be fixed up as time goes by.  Whereas, if I make an order for overnight time before the conditions are in place for it to work satisfactorily for the children, I cannot undo the potential damage that I do to these children.  
21.	So what we have at the moment is something that continues the meaningful relationship between these children and their father, that protects them from risk, that the mother is willing to support, that minimises change for them, that involves no issues of practical difficulty and expense, and that manages the uncertainty and issues about parental capacity that applies as regards both the mother and the father.  To order overnight time, I am sure on the facts, would cause the mother to be deeply concerned.  I doubt her ability to contain any distress that she would feel about overnight contact and, in any event, would be too much change for these children too quickly.
22.	Mr Reeve made some very thought-provoking submissions about this issue of overnight time and as to when it should occur.  It is a perplexing issue, and I agree with him to the extent that there should never be a template or a standard approach, because each case has to be dealt with on its merits.
23.	In this case I am concerned, as I have articulated, about whether the parents are, in fact, managing to contain their conflict from the children.  I am concerned about the father having come and gone from the children’s lives for so often in the past.
24.	In the circumstances, I am, in fact, not going to make any further order in relation to contact.  The mother, through her solicitor, Mr Jordan, has offered to extend the children’s time with the father and I would hope that if she considers that appropriate, she, in fact, does so.
25.	I am going to appoint an Independent Children’s Lawyer.
26.	I am going to signal to both parents that, in fact, unlike what Mr Reeve said, that this is not going to be the only time when there will be an examination of this issue of contact. Once the Independent Children’s Lawyer becomes involved, and I can get a more objective and expert insight into this family, I signal a willingness to revisit the contact arrangements.
27.	I note that the family consultant’s memorandum of court refers to the possibility of obtaining an assessment by a child and family psychiatrist, given the issues that have been raised by both parents.  I would urge the solicitors for both parents to consult with the independent children’s lawyer as soon as she or he is appointed.  It seems to me that the earlier we get that evidence, if that is what, in fact, is needed, the earlier it will be possible for the Court to reassess at what point overnight time should commence.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Altobelli FM.

Date:  2 May 2012