Bane and Thompson

[2017] FamCA 328

FAMILY COURT OF AUSTRALIA

BANE & THOMPSON [2017] FamCA 328

FAMILY LAW – CHILDREN – Interim orders – With whom a child spends time – Best interests of a child – Child’s views – Where oldest child’s anxiety disorder is exacerbated by time spent with her father – Best interests of the child not to spend time with her father – Where it was in the best interests of the younger two children to spend time with their father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Bane

RESPONDENT: Ms Thompson

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 593 of 2010

DATE DELIVERED: 19 May 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Black & Wood Divorce & Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Georgina Parker Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That until further order, order 3 of orders made 2 August 2016 is suspended as to B born … 2006.

2. That order 5 of orders made 2 August 2016 is discharged.

3. That handovers not at school are to take place at the McDonald’s Restaurant, Suburb F.

4. That all applications for final orders be adjourned for hearing before Justice Berman on 11 December 2017 at 10am as a 4 day matter and that the evidence in chief of all witnesses be given by affidavit.

5. That the matter is listed to 9.15am on 11 July 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bane & Thompson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 593 of 2010

Mr Bane

Applicant

And

Ms Thompson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Application in a Case filed 28 February 2017, Mr Bane (“the father”) seeks orders that are intended to enforce and promote compliance with parenting orders made by Justice Dawe on 2 August 2016 in respect of B born in 2006 (“B”), C (“C”) and D (“D”) both born in 2008, collectively (“the children”).

2. By Response filed 5 May 2017, Ms Thompson (“the mother”) seeks to suspend paragraphs 2, 3, 4 and 5 of the current parenting orders and to require the father to attend for targeted counselling and/or therapy.

BACKGROUND

1. The proceedings commenced in February 2010 and there has been ongoing litigation since that date.  There have been three family assessments undertaken; the most recent by Family Consultant E published on 16 September 2015.

2. The parties reached agreement in 2013 that provided for the mother to have sole parental responsibility, that the children live with her and spend significant and substantial time with the father. 

3. The father filed an Initiating Application on 24 March 2014 and then an Amended Application on 13 January 2015 seeking orders for equal shared parental responsibility and that the children spend time with him either on a week about basis, but if he relocated from South Australia then the children would spend the majority of their school holidays with him.

4. The parties were not able to resolve their differences and the ongoing arrangements for the children to spend time with the father were problematic.

5. The matter came before Dawe J on 2 August 2016 and orders were made that dismissed the father’s outstanding Contravention Applications and discharged previous parenting orders.

6. Until further order, the children were to spend time with the father every Saturday from 10 am until 5 pm and every Tuesday from after school until 6.30 pm with handovers to take place a children’s contact service where handover does not take place at school.

7. The father has not spent time with the children since October 2016.  The interaction between the parties and the contact service together with apparent resistance from B was such that the contact service has now withdrawn their preparedness to facilitate handover.

8. The father’s assessment is that there is no basis that would explain the breakdown in his relationship with the children, but in particular B, other than his belief that the mother has coached B to resist spending time with him.

9. The father recognises that his relationship with B has been adversely impacted and seeks that a psychologist be appointed to undertake reunification therapy.

10. He also seeks that the handover of the children occur at the Suburb F McDonald’s Restaurant considering that the handover at the children’s contact service had “empowered” the children to decide for themselves as to whether they would spend time with the father.

11. The mother denies that she has in any way interfered with the time that the children spend with the father and in particular that she has coached B to adopt a position of opposition.

12. She asserts that the children have had difficulties in spending time with the father and their reluctance has its genesis to certain obsessive behaviours of the father which have embarrassed the children and increased B’s anxiety.

13. The mother’s Affidavit filed 5 May 2017 sets out the efforts undertaken by her to promote the relationship between the children and the father, but to date B’s opposition to spending time with her father has become more entrenched.

14. The mother considers that it is the father’s overt and aggressive behaviour which is the cause of the children’s reluctance to spend time with him and accordingly she seeks that before any “reunification therapy” is undertaken between B and the father, he needs to address his intimidating conduct.

15. In any event the mother is not in a financial position to contribute towards the costs of any reunification therapy.  The father is also in a poor financial position and neither party would appear able to contribute towards the cost of the father’s proposed intervention.

Psychologist

1. The mother relies upon a report of a psychologist who has been providing therapeutic assistance to B in 2016 and as recently as 14 February 2017 and 2 March 2017.

2. B was referred to the psychologist by her general practitioner for assistance in managing her anxiety disorder and her obsessive compulsive disorder (“OCD”) traits.

3. In her sessions with the psychologist in September 2016 and October 2016, the psychologist records B’s reluctance to go with her father and her anxiety at his apparent distress.

4. In her session on 7 November 2016, B reported that she had refused to see her father for the previous three weeks and that her OCD behaviour was continuing without abatement.

5. The psychologist considered that B had developed an anxiety disorder which manifested with the child experiencing nightmares, compulsive blinking, difficulty in settling at bedtime and resistance to seeing her father.

6. Notwithstanding an invitation for him to be involved in the sessions with B, the father has refused any entreaty to engage with the psychologist.  The father is mistrustful of the psychologist and the psychologist’s involvement with the child.

Paediatrician

1. The mother relies on a report in respect of B dated 3 August 2016 to provide a history of the child’s distressing ocd traits leading up to the recommendation that she engage in therapy to ameliorate her anxiety and her repetitive behaviour.

2. Similarly, there is a report of 25 October 2016 in respect of C where he is diagnosed with Muscular Dystrophy and Autism Spectrum Disorder with significant anxiety and comorbid inattentive attention deficit disorder.

3. The report confirmed that C’s management had not yet settled and the paediatrician was keen to review him after he received a neurological assessment.

4. Between October 2016and December 2016 C was seen by a therapist to focus on developing his skills to self-regulate his emotions.

5. The focus was to explore the child’s better integration into the classroom.  The feedback from the mother following the intensive intervention was that the child had settled well at school and home and did not need further sessions.

Family Consultant

1. Interviews and observations took place on 29 October 2015.  There has not been any further assessment to date.  In making the orders of 2 August 2016 Dawe J had the advantage of that report.

2. In interview with B it is reported that she said the following at paragraph 102:-

   I am here so I can say what I want and don’t want.  If I say what I think I am scared that my dad will tell me off.  He does that pretty often, he goes red and pale in the face.

3. When asked about the “best thing” at the father’s house she said:-

   There aren’t very much good things but there are a lot of worst things;  I am not scared and shy there which I am in public.  The hardest thing is that I have to swap homes and do the rules.  If I leave my mum’s I feel sad to go to my dad’s.  After being at dad’s mum always gets us DVDs or new clothes to cheer us up.  Most of the time dad goes out and leaves us with [Ms G].  [C] does lots of noises and [Ms G] says ‘shut up’ and he sort of cries.  He makes funny noises to let me know how he feels.

4. At the time, the observation of the family consultant was that the children did not appear to have a close or supportive relationship with the father’s partner.

5. The family consultant considered that the children were exposed to parental conflict and that this could have an adverse impact on B and C.  The family consultant considered that the children needed to be protected from high levels of stress and uncertainty, in particular in respect of any conflict between the father and his partner.

6. The recommendation was significantly influenced by whether the Court might find that there was conflict in the father’s relationship with his partner and if that was the case, then the father’s time should be limited to every second weekend with the father from the end of school Friday to 5 pm Sunday and a Wednesday dinner visit.  If there were no difficulties with the father’s relationship with his partner, then the father’s time should be every second weekend from the end of school on Friday to the commencement of school on Monday.  It was also proposed that there could be extended periods during the school holiday period.

LEGAL PRINCIPLES

1. I am required to make parenting orders that promote and facilitate best interests of a child or children and in doing so must place substantial weight on the importance of maintaining a meaningful relationship with each parent.

2. The resolution of any allegation of risk is always subservient to a determination of what is in the child’s best interests having regard to the primary and the additional considerations as set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), but in doing so I must give proper recognition to the interplay between s 60CC(2) and s 60CC(2A).

3. On an interim hearing, unless satisfied on the balance of probabilities, the Court should be reluctant to make a finding as to the veracity of any allegation of risk that may be made.

4. Whilst I am obliged to consider the factors in respect of s 60CC of the Act, not all of the subsections will apply.

5. It is reasonable for the father to argue that as at 2 August 2016 the determination of the Court was that it was in the interests of the children to spend time with him albeit more limited time than specified in the previous orders.

6. Shortly after the orders were made the children’s time with their father ceased.

7. It is difficult to identify the catalyst for a cessation of time, but it is uncontroversial that currently the children spend no time with him.

8. It cannot be said that the father presents a risk to the children other than the potential for the conflict between the parties to exacerbate B’s anxiety disorder and C’s behavioural difficulties.

9. Whilst the father considers that B’s reluctance to see him is a direct result of the mother’s influence, he accepts that it may be difficult to force compliance with an order so entrenched is his daughter’s attitude against him.  The same cannot be said for C and D.  There is no evidence of any basis for their refusal to spend time with the father and it is likely that they have taken the path of least resistance and are following their older sister.

10. Whilst not accepting that B has any proper basis for her refusal, I need to consider the weight that I place upon her views of her relationship with the father and her refusal to spend time with him.

11. Given the diagnosis of an anxiety disorder, on an interim basis it may well be moving into unchartered waters to make orders that would require B to spend time with her father without having some evidence as to the consequences of such an outcome.

12. I am less concerned as to the effect on C and D and, in the absence of any evidence to the contrary, there appears to be no good reason why the previous orders should not continue.

13. I propose therefore to suspend B’s time with the father, but will not interfere with the orders requiring C and D to spend time with him.

14. In circumstances where the Court considered that the children should continue to see their father, there is agreement that the handover shall occur at McDonald’s Restaurant, Suburb F.

15. I do not propose to order that there be reunification therapy at this time.  There is no information before the Court as to the manner in which the therapeutic intervention would take place or how it would be managed.  The parties are not able to agree upon a potential practitioner and I suspect that the substantial cost likely to be associated with the process is beyond the parties’ financial capacity.

16. Given that this matter is near the top of the pool of cases awaiting trial allocation, I propose to list it for trial and adjourn consideration of trial directions.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 May 2017.

Associate: 

Date:  19 May 2017