BAGHAM & EARDLEY

[2020] FCCA 570

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAGHAM & EARDLEY [2020] FCCA 570

Catchwords:
FAMILY LAW – Interim parenting – short form reasons – family therapy – no further orders for time.

Legislation:

Family Law Act 1975 (Cth), s.69ZL

Applicant: MR BAGHAM

Respondent: MS EARDLEY

File Number: PAC 2583 of 2019

Judgment of: Judge Obradovic

Hearing date: 27 February 2020

Date of Last Submission: 27 February 2020

Delivered at: Parramatta

Delivered on: 19 March 2020

REPRESENTATION

Counsel for the Applicant: Ms Druitt

Solicitors for the Applicant: Watts McCray Lawyers

Counsel for the Respondent: Ms Otrebski

Solicitors for the Respondent: Amanda Little & Associates

Counsel for the Independent Children's Lawyer: Ms Cole

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

1. All outstanding interim applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2583 of 2019

MR BAGHAM

Applicant

And

MS EARDLEY

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth).

2. Before the Court are the competing applications of the parents of X born in 2006, Y born in 2007 and Z born in 2009 (“the children”) in respect of the time that the children should spend with the father. To put things in perspective, it is agreed that:

   a)The parties commenced living together in 1994;

   b)X was born in 2006;

   c)Y was born in 2007;

   d)Z was born in 2009;

   e)The parties separated in April 2016, with the mother and the children moving out of the former matrimonial home.

   f)Between September 2016 and January 2017 the children spent time with the father supervised by A Family Services;

   g)Between January 2017 and April 2017, the children spent time with the father supervised by Ms B;

   h)Between April 2017 and December 2017, the children spent time with the father supervised by Mr C;

   i)Between May 2017 and December 2018, the children spent time with the father at rock climbing on a weekly basis during school term;

   j)Between February 2018 and June 2018 the children and the parents attended therapeutic visits at the D Counselling Centre;

   k)In the period February to March 2019 the children spent time with the father for approximately 3.5 hours per week, and the children have not had face to face time with the father since then;

   l)In June 2019 the father commenced these proceedings;

   m)On 26 August 2019 orders by consent were made for the children to have weekly telephone contact with the father, for family therapy with Dr E and for the children to spend time with the father if and when recommended by Dr E; and

   n)The children have not spent time with the father since March 2019.

3. The issue for the Court to determine is whether there is an unacceptable risk of harm to the children should they be spending time with the father that is unsupervised and significant and substantial, and whether the children should be spending time with the father other than as recommended by the family therapist.

4. The mother says that the children should only spend time with the father in the presence of a trusted third party pending a final hearing. The father says that the children’s time with the father should increase progressively over a period of six months after which time they should be spending equal time with each of their parents. The independent children’s lawyer does not support the progression of time on an equal basis but rather that the children initially spend time with the father under supervision or in the presence of a trusted adult and for that time to take place in a public place. All three parties agree that there should be family therapy between the children and the father in the interim period, in essence in accordance with orders previously made but with some tweaking.

5. To the family consultant, the children who are 13, 12 and 11 have all presented as anxious, they expressed that they were “in a bad situation” prior to their parents’ separation and that they were often yelled at by the father. They also indicated to the family consultant that visits with the father had not gone well, without providing any detail. They indicated that their video calls with the father were more positive.

6. In respect of the children’s expressed wishes, Y said that he does not want to spend time with the father again because he does not feel comfortable doing so. Z expressed concern regarding the father becoming aware of some of her comments to the family consultant, and that she would only spend time with the father if her brothers were with her. X said that he would like to see the father “maybe, a little bit” but that he would prefer that there was a supervisor present, so that the father would not be able to repeatedly ask them questions. X also said that if one of the other siblings refused to go he would then not want to spend time with the father.

7. The Child Inclusive Conference Memorandum to Court included the following summary under heading “Issues for the Children”:

   ·If a parent is lacking in reflective capacity to recognise and understand children’s needs, interactions with this parent may be experienced by a child as distressing and invalidating.

   ·Whilst no physical or verbal abuse was reported, [the mother] suggested that [the father]’s alleged harassment and control of the family  was traumatising for her and for the children, and that further exposure to these behaviours may cause the children further trauma. Whilst [the father] acknowledged some of these behaviours he did not appear to view them as harmful.

   ·The children all appeared articulate and all appeared to hold strong opinions, but appeared reluctant to express those opinions openly. It is beyond the scope of this assessment to determine the extent to which the children’s views are based on their own experience and the extent to which they have been influenced by a third party.

8. The mother makes serious allegations of family violence against the father. She alleges that the father exercised coercion and control over her (and the children) for the duration of the parties’ relationship. The mother’s primary contention in relation to risks for the children if they were to spend unsupervised time with the father relate to the father’s capacity to reflect and understand how his behaviour may have affected the children’s emotional wellbeing, both historically and now.

9. On 13 February 2020 the Court made orders by consent for an expert’s report to assist the Court in making a final determination as to what parenting orders might be in the children’s best interest. It is anticipated that such expert report will be available towards the end of this year.

10. Orders have previously been made for the parties and the children to attend upon Dr E for the purposes of family therapy. That process is still in its early stages. There was no report available from Dr E as to how the therapy was progressing. Further orders with respect to such therapy were made on 26 August 2019.

11. The children appear to be very resistant to spending time with the father.

12. It is difficult in light of the parties’ concession that there should be an order for continued family therapy to find that time outside of that as recommended by the family therapist would be beneficial to the children.  

13. The situation might well be different if there was a report from Dr E in respect of the family therapy ordered and its progress.

14. It is appropriate, given the lack of evidence as identified, for the Court to take a cautious approach. The matter is progressing on its way to a final hearing. There are complex issues to be resolved and many factual disputes. It is appropriate for these children that there only be a holding pattern of family therapy at present.

15. This is not to suggest that the Court is abrogating its responsibilities in respect of the determination of what time the children should spend with the father. Rather it is a recognition that in the particular circumstances of this case, given the lack of expert evidence and the fact that family therapy is yet to see the children re-introduced to the father, it is premature to make orders for time to occur in accordance with either party’s application.

16. For all of these reasons, the Court declines to make any further order for the children to spend time with the father pending further order.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  19 March 2020