Bronson and Rodolfo

[2007] FamCA 266

FAMILY COURT OF AUSTRALIA

BRONSON & RODOLFO [2007] FamCA 266

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

Goode v Goode (2006) FamCA 1346

APPLICANT: Mr BRONSON

RESPONDENT: Ms RODOLFO

INTERVENOR: THE MATERNAL AUNT AND UNCLE

INDEPENDENT CHILDREN’S LAWYER: MR D. LAMPE

FILE NUMBER: MLF 2728 of 1997

DATE DELIVERED: 13 MARCH 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MARCHETTI

SOLICITOR FOR THE APPLICANT: Quintessential Lawyers

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INTERVENOR: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Donald S Lampe

Orders

1.That the mother shall file and serve a Notice of Address for Service today and file and serve a response setting out the orders she seeks, within six weeks from today.

2.That all existing applications shall be adjourned to a  date to be notified to the parties for a five day hearing before me in approximately four months’ time with a telephone mention before me also on a date to be notified to the parties about four weeks before the hearing.

3.That the Independent Children’s Lawyer shall file and serve the following:

(a)A report from the G Parenting Orders Program; and

(b)    The documents referred to in paragraphs 7 and 8 of my orders of 15 December 2006

by seven days before the mention date referred to above.

4.That all previous parenting Orders shall be discharged.

5.That until further order the maternal aunt and uncle shall have equal shared parental responsibility for the child, the parties daughter, born in October 1996.

6.That until further order the child shall live with the maternal aunt and uncle and they shall be responsible for the child’s day to day care, welfare and development.

7.That until further order the child shall spend time and communicate with the parents as follows:

(a)With the father as may be agreed between the maternal aunt and uncle and the father, AND for such purpose each of the maternal aunt and uncle and the father shall be guided and follow all recommendations made by the Counsellor of the G Parenting Orders Program (as referred to in paragraph 9 herein); and

(b)    With the mother, supervised by Mr M or another person approved by the Independent Children’s Lawyer as close as practicable to every second Sunday from 9.00am to 5.00pm.

8.That each of the parties shall be and are hereby restrained by injunction from bringing the child into contact with Mr R, the mother’s husband, SAVE when the child spends time with the mother pursuant to paragraph 7(b) herein.

9.That each of the maternal aunt, uncle and the father shall do all things necessary to forthwith participate in the G Parenting Orders Program (“The Program”) with a view to re-establishing a relationship between the child and the father; AND for such purpose each of the parties shall comply with all lawful directions and recommendations of the Program Co-ordinator.

10.That the Independent Children’s Lawyer shall be at liberty to provide to the Program Co-ordinator copies of the Family Reports prepared by Ms W within these proceedings, reports of Ms B and the reports of Dr G and Dr L.

11.That the parties shall forthwith cease any therapeutic counselling involving the child and Ms B.

12.That there shall be liberty to apply on short notice.

13.That each parent is hereby restrained from denigrating the other parent to the child or within the child’s hearing, and from discussing these proceedings with the child or within her hearing.

14.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

15.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2728   of 1997

MR BRONSON

Applicant

And

MS RODOLFO

Respondent

REASONS FOR JUDGMENT

1. The parties’ daughter is 10½, and when the case first started in front of me as part of the Children's Cases Program and Child Responsive Pilot in June 2006, she was living with her mother and had not seen her father for about three years.  The father sought contact with her.  The mother said that the daughter was terrified of her father and would not agree to any contact at all.   The father said that the daughter in fact was being brainwashed against him by her mother.  The Family Consultant had spoken with the child.  She reported her concern with the child’s anxious and frightened demeanour at interview.

2. At the end of the first day of hearing, I adjourned the case for six months for the child to continue therapeutic counselling with a psychologist, Ms B, and for a Family Report, before deciding on any reintroduction of contact.  Unusually, I ordered that Ms W should interview the child in the presence of another counsellor, the mother having made serious criticisms of Ms W, and having alleged that she upset the child. 

3. In December 2006, the case came back before me.  There was no agreement as to how to move forward, so I made detailed orders for the case to be heard to conclusion in February of this year.  At a mention on 23 January I was advised that the case was not ready.  Some reports could not be obtained in time.  The mother had recently sought to relocate the child to Gippsland, and had filed a new response in relation to that.  And, the maternal aunt and uncle had sought to intervene.  Sadly, despite all the efforts to get the case heard very quickly, it was removed from the list of cases that I was about to hear and adjourned to a continuation of hearing today, with a view to getting it ready again to be completed. 

4. Between that mention and today, there was a significant turn of events.  The case was brought on before me on 16 February 2007 at the request of the Independent Children’s Lawyer. The mother's solicitor had filed a Notice of Ceasing to Act on 13 February 2007, and the mother had filed a Notice of Discontinuance of her response in the proceedings on 14 February 2007.  I was told that on that same day, she had contacted the ICL to say that she was moving away, she would not take the child as there was an order restraining her from doing so, and that he, the Independent Children’s Lawyer, could look after the child.

5. The father's solicitor had contacted the mother and had her served, to let her know of the hearing before me on 16 February 2007.  The ICL spoke to the child’s school Principal, and to her treating psychologist.  There was a substantial basis for concern about the mother's stability.  She had made it clear that she had decided to move, come what may as to where the child would be.  It was also clear that it was a very distressing time for the child, who had for very many years lived with her mother as her primary carer.

6. The only proposal put to me on 16 February 2007 was for the child to live with her maternal aunt and uncle, Ms B and Mr N and their young family.  I made orders for that, and the case was adjourned until today.  Although the mother had withdrawn any process before the court, I was at pains to ensure that she was able to participate if she wanted, and to that end I provided in paragraph 8 of my Orders for the father's solicitor to attempt to bring the Orders to her attention.

7. There was another return to court before today.  That was on 28 February 2007.  I allowed the maternal aunt and uncle to change the child’s school.  Again, the mother, as I understand it, certainly knew about the case.  She says she did not participate on that day because the line on a conference call dropped out and she did not know how to contact the court.  Again, at the end of that short hearing, I made provision for the mother to be advised of those orders. 

8. Today there are different proposals that I must consider:  the mother has appeared, albeit two and a half hours’ late.  She wants the child immediately returned to her care and to move to live in Gippsland with her.  The father, the maternal aunt and uncle, and the ICL agree on the orders they seek.  They are for the child to live with her maternal aunt and uncle until further order, and to be reintroduced to her father through the G Program.  They also want orders for her to have supervised time with her mother as agreed by the maternal aunt and uncle, that she should not be brought into contact with her mother's partner, and that the therapeutic counselling with Ms B should not be continued.  They seek to have the case then brought on before me in four to six months to enable the parenting program to be completed or at least well under way.

9. One preliminary observation before I briefly refer to the legal principles.  It is obvious that the mother is extremely angry and upset with the court and very keen to tell me that the court is to blame for the child living separately from her.  Whilst the merits of each party's case are yet to be properly tested and whilst I am sympathetic to the emotion for the parties, I am perplexed by her anger at this point.  In line with the mother’s application, the court had not reintroduced contact with the father.  Her late application for relocation was quickly listed and arrangements were underway for it to be decided on its merits, without any delay.  And, despite the mother's Notice of Discontinuance, the court ensured that the mother has had the opportunity to be kept informed and to be heard.

10. Logically, the mother should not feel disenfranchised, and I urge her for the child’s sake to approach things, as upsetting as they may be, as calmly as possible.  I say that because telling me, as she did earlier today, that she disagrees with all the other parties’ proposed orders, without at that point having read them, or that she will appeal whatever orders I make before I have had a chance to make any, puts her at risk of losing the opportunity to convey her perspective to me.  For the child’s sake, I would rather hear from everyone before I make a decision.

11. I must apply Part VII of the Family Law Act as amended in July 2006 by the Family Law Amendment (Shared Responsibility) Act, following the pathway set out by the Full Court in relation to interim hearings in Goode v Goode (2006) FamCA 1346 which is a decision of the Chief Justice and Finn and Boland JJ delivered on 15 December 2006.  Before setting out the steps in an interim hearing, the Full Court in Goode's case acknowledged some comments of a previous Full Court in Cowling's case as apposite.  It acknowledged that the procedure for making interim parenting orders will be necessarily an abridged process where the scope of the inquiry is significantly curtailed compared to the ultimate hearing.  It said (at para 68):

    “Were 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 separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.”

12. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, and that they must be reconsidered in the light of changes to the Act, the Full Court then noted (at para 72):

    “It can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”

13. As to status quo, it continued:

    “Where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”

14. The Full Court went on:

    “That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child's best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the pertinent sections.”

15. I must consider the section 60CC matters so far as they are relevant to determine best interests at this interim stage.  There are of course two primary considerations, then additional ones.  The first is set out in section 60CC(2)(a) relating to the benefit for a child in having a meaningful relationship with both parents.  At this interim stage, I can say that the child has been living with her mother and had a very close relationship with her.  Sadly, she has not seen her now for about a month.  The mother rightly points to my orders on that day that prohibited contact.  Again, sadly, I note that those orders arose from the mother's precipitous move away from the child and the need to ensure stability in potentially unstable circumstances.

16. The benefit or otherwise of the child’s relationship with her father has been at the heart of the case.  I have the advantage, unusually at this interim stage, of the Family Report dated 5 March 2007.  I note two things.  First, the mother did not participate, and secondly, I have not had the benefit of hearing Ms W cross‑examined.  But still, for interim purposes, it is useful to note Ms W’s recommendation that the child remain living with her aunt and uncle, be progressively reintroduced to her father, and for now, have short periods of supervised time with her mother.  The proposal of the parties, except the mother, broadly accords with that.

17. The second primary consideration for me in looking at the child’s best interests in the limited way that I am able to at this interim hearing is as set out in section 60CC(2)(b) of the Act.  I am satisfied that the child is safe with the mother's sister and her family.  The material at this point at least raises concerns about risk of psychological harm if that stability is upset and she is returned to her mother, or if her relationship with her father is rushed and not appropriately overseen by an expert as proposed.

18. Looking at the additional factors under section 60CC(3), the first relevant one is any view expressed by the child.  A final assessment of the child’s views will require the balance of the evidence to be heard in due course.  Ms W found her greatly changed since living at her aunt's and described her as bubbly, laughing, relaxed.  Significantly, the child told Ms W that she felt safe living at her aunt's.  Her aunt acknowledges that naturally there are still issues in the child adjusting and living away from her mother.

19. The child continues to say to the Family Consultant that she does not want to see her father but the Family Consultant notes a mis-match between the child’s words, described as "rote-like", and her expression.  These are all matters that will be tested in due course in evidence.

20. In terms of the nature of the relationship of the child with her parents and other people, at this point of course her relationship with her father is almost non-existent.  She has been close, as I have noted, to her mother.  Whether that is a closeness that is in her best interests or not is ultimately a question for me to decide when I have heard all the evidence.  The one fact that seems to have support at this point, at least in terms of there being an independent expert who has considered it, is that the child is safe and sufficiently contented where she is living.

21. As to the willingness and the ability of the parties to encourage the relationship between the child and the other parent, that is something I will need to consider when I have heard all the evidence.  As to the effect of changes for the child, through no fault of her own the poor young child just one month ago experienced the most enormous disruption to her living arrangements.  She had lived many years with her mother.  Her mother changed that by moving to Gippsland and leaving her in Melbourne, and she has settled remarkably well considering the inevitable confusion for her.  If the child is returned now to live with her mother, she would face yet another very significant disruption.  Not only would it be to change homes again in a short space of time, but she would face the move to Gippsland and her third school this year. 

22. There are various other factors set out in section 60CC(3) that are not particularly relevant for interim purposes, although they will be relevant when I hear the case in its entirety.  As to the parents' capacities to provide for the child’s needs, on the material, there are arguably concerns about both of them, but as I have noted, the child appears to be doing as well as she could be expected to be doing in her present circumstances with the aunt and uncle.

23. I am required to consider whether the presumption of equal shared parental responsibility applies or is rebutted and thereafter to consider how to divide the child's time between now and hearing the case finally.  I am satisfied that the presumption of equal shared parental responsibility should be rebutted in this case at this stage because it would otherwise be contrary to the child’s best interests.  I do not agree with the proposal of the ICL, maternal aunt and uncle and the father, that parental responsibility should be shared between the aunt, uncle and father, to the exclusion of the mother.  In my view, for the short term both parents should be excluded.  It is important that the maternal aunt and uncle be able to make decisions without undue pressure from either parent.  I see a potential conflict and source of pressure on them if the father is trying to speed up his reintroduction to the child outside what is being proposed by the parenting program experts, and I similarly see a difficult pressure if the mother is trying to seek various things that are at odds with what they are trying to provide when they are doing their best in the difficult circumstances into which they have been thrust.

24. Otherwise, I accept the interim orders proposed by the three parties and opposed by the mother.  For the interim period, I am satisfied that the proposal best meets the child’s needs, providing for her stability and emotional safety, while giving her an opportunity to have some experience of her father within a safe setting and with an organised program and expert advice, and to see her mother in a safe and supervised setting.  The outcome when this case is heard in full may be different. 

25. There are two issues that need immediate attention today.  One is that the mother needs to file something so that she is again on record.  At this point, she has no application of any sort before the court, and no address for service.  I want that rectified so that she will be kept fully informed of what is happening and she will be making it clear what orders she seeks. 

DISCUSSION

1. The orders I shall make are as follows:

   1.That the mother shall file and serve a Notice of Address for Service today and file and serve a response setting out the orders she seeks, within six weeks from today.

   2.That all existing applications shall be adjourned to a  date to be notified to the parties for a five day hearing before me in approximately four months’ time with a telephone mention before me also on a date to be notified to the parties about four weeks before the hearing.

   3.That the Independent Children’s Lawyer shall file and serve the following:

   (a)    A report from the G Parenting Orders Program; and

   (b)    The documents referred to in paragraphs 7 and 8 of my orders of 15 December 2006

   by seven days before the mention date referred to above.

   4.That all previous parenting Orders shall be discharged.

   5.That until further order the maternal aunt and uncle shall have equal shared parental responsibility for the child, the parties’ daughter, born in October 1996.

   6.That until further order the child shall live with the maternal aunt and uncle and they shall be responsible for the child’s day to day care, welfare and development.

   7.That until further order the child shall spend time and communicate with the parents as follows:

   (a)With the father as may be agreed between the maternal aunt and uncle and the father, AND for such purpose each of the maternal aunt and uncle and the father shall be guided and follow all recommendations made by the Counsellor of the G Parenting Orders Program (as referred to in paragraph 9 herein); and

   (b)    With the mother, supervised by Mr M or another person approved by the Independent Children’s Lawyer as close as practicable to every second Sunday from 9.00am to 5.00pm.

   8.That each of the parties shall be and are hereby restrained by injunction from bringing the child into contact with Mr R, the mother’s husband, SAVE when the child spends time with the mother pursuant to paragraph 7(b) herein.

   9.That each of the maternal aunt, uncle and the father shall do all things necessary to forthwith participate in the G Parenting Orders Program (“The Program”) with a view to re-establishing a relationship between the child and the father; AND for such purpose each of the parties shall comply with all lawful directions and recommendations of the Program Co-ordinator.

   10.That the Independent Children’s Lawyer shall be at liberty to provide to the Program Co-ordinator copies of the Family Reports prepared by Ms W within these proceedings, reports of Ms B and the reports of Dr G and Dr L.

   11.That the parties shall forthwith cease any therapeutic counselling involving the child and Ms B.

   12.That there shall be liberty to apply on short notice.

   13.That each parent is hereby restrained from denigrating the other parent to the child or within the child’s hearing, and from discussing these proceedings with the child or within her hearing.

   14.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

   15.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BRONSON & RODOLFO