Burton and Gilbert

[2007] FamCA 532

FAMILY COURT OF AUSTRALIA

BURTON & GILBERT [2007] FamCA 532

FAMILY LAW - CHILDREN – With whom a child spends time – Child’s views - Interim orders made for the husband to spend time with 8 year old child – Husband relocated to Melbourne – Expression of child’s wishes through Independent Children’s Lawyer and Family Consultant

Family Law Act 1975 (as amended)

Goode v Goode (2006) FamCA 1346 (now reported at 36 FamLR 422)

APPLICANT: Mr Burton

RESPONDENT: Ms Gilbert

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2755 of 2006

DATE DELIVERED: 7 May 2007

PLACE DELIVERED: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 7 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Williams

SOLICITOR FOR THE APPLICANT: Watson & McLeod

COUNSEL FOR THE RESPONDENT: Mr G Dickson

SOLICITOR FOR THE RESPONDENT: Cynthia A Toose

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr J Melilli

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

IT IS ORDERED BY CONSENT

1. That all applications be adjourned to the next Deputy Registrar’s Sittings at Mildura commencing 1 June 2007. 

2. That the parties each make themselves available for a psychiatric assessment to a psychiatrist nominated by the Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid fund such assessments.

IT IS ORDERED BY THE COURT

1. That pending the further hearing the child a daughter born … October 1998 live with the wife.

2. That pending the further hearing, the husband spend time with the child as follows:

   4.1in M once per month for three weekends from 11.00am to 3.00pm on each of Saturday and Sunday;

   4.2thereafter in M once per month from 11.00am Saturday to 3.00pm Sunday;

   4.3      such time not take place at the home of the Ds.

3. That pending the further hearing, the husband communicate with the child by telephone each Wednesday and Sunday between 6.30pm and 7.30pm and for the purpose of such calls:

   5.1the husband phone the wife’s home;

   5.2the wife ensure the child is available to receive such calls;

   5.3the wife absent herself from the room where the child receives the call (without the wife admitting the need for such an order).

4. That the parties attend upon Mr W for an update of his assessment in anticipation of the matter proceeding to trial in the Mildura Sittings for November 2007.

5. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

6. That all interim applications be otherwise dismissed.

IT IS CERTIFIED

(9) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS DIRECTED

1. That the Reasons for Judgment be transcribed, placed upon the court file and a copy made available to the parties.

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 2755  of 2006

Mr Burton

Applicant

And

Ms Gilbert

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial sittings of the Family Court of Australia at Mildura and involves a daughter, who was born on 23 October 1998.  It first came before me on 2 May 2007 and following discussion was adjourned to 4 May 2007 and to this day. 

2. A short background is as follows.  The father was born on … August 1958 and is 48 years of age.  The mother was born on … November 1965 and is 41 years of age.  As I said, the proceedings involve the child who is eight years of age.  The husband has a daughter by an earlier relationship, S, who was 16 years of age in March 2007.  S lives with the wife in these proceedings.

3. The relationship between the parties, as I understand it, commenced in Melbourne in 1993.  The child was born in 1998 and the parties married on … June 1999.  They relocated to M in 2001 which has been the home of the parties since that time, save for the husband's relocation back to Melbourne on 27 January 2007.  That was his decision at his own election.  After the parties relocated to M, S came to live with her father and the wife in April 2002.  The following year, 2005, the husband was diagnosed with type 2 diabetes. 

4. There are a number of affidavits filed on behalf of the parties which describe in quite graphic terms the breakdown in their relationship.  Overall, it seems to me that they suffered difficult times from late 2005 and throughout 2006.  Ultimately, as the result of considerable disharmony between them, they separated on 19 March 2006.  The following month the husband was diagnosed with depression. 

5. There is a sense of melancholy surrounding the breakdown in the marriage and the clear difficulties the husband appeared to suffer as a result.  For example he moved into a bungalow on the matrimonial property in May 2006.  It seems to me quite clear that he has enjoyed a fond and loving relationship with his daughter, the parties’ child, to whom he is clearly devoted.  Whilst living in the bungalow, he saw her daily.

6. On 28 June 2006 an Intervention Order was made injuncting the husband, in effect, from coming to the property.  It was prosecuted by the police.  The husband contests the circumstances in which that Intervention Order was granted and it may well be a matter that may warrant some evidence at the final hearing of the proceedings before me in November 2007. 

7. The husband applied for a shared care arrangement of the child and a property settlement in August 2006.  Between September 2006 and November 2006, as I understand the history, the husband saw the child on approximately seven occasions.  The matter came before the Family Court on 17 January 2007 and consent orders were made. 

8. Broadly speaking, the husband spent time with the child on an unsupervised basis on a Sunday between 8.30 am and 12.30 pm on three occasions between 26 November and 17 December 2006.  Further, that he spent time with her on four occasions between 31 December 2006 and 21 January 2007, this time between the hours of 8.30 am and 2.30 pm.  He also spent time with her on 24 December and 26 December 2006, being quite significant days.  As I said earlier in this short extempore judgment, the husband at his election and for personal reasons left M on 27 January 2007.  He had been gainfully employed in M. 

9. I have earlier referred to the fact that the matter first came before me on 2 May 2007.  There were general submissions made by Mr Williams, who appears on behalf of the husband, Mr Dixon who appears on behalf of the wife and Mr Melilli, who appears for the Independent Children's Lawyer.  There was also a general discussion concerning the report of Mr W.  It was quite a helpful document in the circumstances for the purposes of an interlocutory proceeding such as this which was filed on 19 April 2007.  The matter was stood down for discussion between counsel, but later it returned to me that day.

10. Mr Williams addressed me generally and all that could be said was put by him in the presentation of his helpful submissions on behalf of the husband.  First of all he referred to the affidavit of the husband filed 8 August 2006, which is now somewhat aged in time but is a document to which I have regard in coming to my determination.  He made it clear to me that the husband's case was that he, the husband, had a deep involvement with both the parties’ child and S. 

11. I do not think there is much doubt about that, and that up until the time of separation between the parties, his involvement with the child was an intense one, as it was with S.  That appears to me to be clear from the documents already filed.  However, following the separation things went remarkably askew.  Mr Williams submitted that since separation the husband had had difficulties, "perpetrated by the wife", which culminated in the husband leaving his employment.  He submitted that the husband had been subject to "barriers placed in his way" by the wife which were, he claimed, contrary to the best interests of the child. 

12. It seems to me, as a strategic position, the husband has placed all blameworthiness, if that be the correct word, for his situation at the feet of the wife.  Mr Williams submitted that the husband had difficulty in spending time with the child and sought that his contact with her, in the usage of the now archaic term, be in Melbourne. 

13. There followed a short discussion in the course of which I was informed that the husband would be remaining in M for a few days and in which circumstances I encouraged a contact arrangement on Thursday, 3 May 2007.  This was embraced by all parties.  The proceedings were then adjourned to Friday, 4 May 2007.

14. The matter returned to me on 4 May 2007 and Mr Melilli advised me of certain events that took place during the contact period.  The information that he received came from a Dr E.  Concerning the father’s contact with the child, he was informed that the wife took the child to Dr E's surgery on 3 May 2007 at about 4.20 pm.  There was a 30-minute consultation.  Dr E said he was informed there was a contact visit with the father from 10 am to 2.30 pm.  At the latter time, the child was collected by the mother. 

15. Dr E informed Mr Melilli, as part of the history, that he was told by the wife that the child was “distressed”, had “been crying”, was “hysterical and in a foetal position”.  The wife took the child home, and upon entry to the home, the child ran upstairs and obtained “a soft toy”, which is apparently an item of some comfort or security to her.  The wife informed Dr E that the child “continued to cry” and was clearly evidencing distress.  She pointed out a red rash on the child’s right upper arm.

16. Dr E further informed Mr Melilli that he spoke to the child at the surgery who related to him that an alleged incident had occurred whilst at a shop, where the father “fainted”.  The fainting spell was for a short period of some “five seconds”.  Mr Melilli was also informed that the child said, words to the effect, that her father did not seem to know where he was, which was upsetting to her.  The child informed Dr E that she went to McDonalds, and having lunched there suffered an abdominal pain.  I draw no adverse inference as to cause and effect.

17. Dr E said that the child informed him they went to the home of Mr and Mrs D.  It was not clear to Dr E whether or not the Ds were present.  I was later informed by Mr Williams that they were not.  The child informed Dr E that she did not like going to their home, but she could not explain why.  Dr E informed Mr Melilli that upon examination, the child was distressed and crying, but notwithstanding which, she was able to relate her story.  She was not in pain.  He made the observation that the child appeared “very distressed” with respect to her father's fainting spell.

18. Dr E said there was nothing abnormal on the physical examination.  He said that the child had “been distressed but soon settled down” and by the end of the consultation she was “laughing and joking”.  He observed a heat-type rash, he said, on the right upper arm.  It was his view that it was reasonable to assume it was related to the incident concerning her father and was possibly caused by her father becoming unwell.  He was of the view that it was reasonable for the wife to have taken the child home and to the consultation with him.  It was appropriate for her to have done so in the circumstances.

19. During the course of the hearing on 4 May 2007,  I received Minutes of Proposed Orders of the wife which I marked Exhibit “W1” and of the husband which I marked Exhibit “H2”.  I have carefully read each of those two exhibits.  It was part of the wife’s proposal that the husband make himself available for a psychiatric assessment to a psychiatrist nominated by the Independent Children's Lawyer.  It was Mr Williams' initial submission that a psychiatric assessment was not necessary.  He submitted that it was "all part of the ongoing hysteria on the part of the wife of the parties' breakdown".  He referred me to certain affidavits including the mother's affidavit filed 24 August 2006, particularly paragraph 32 concerning an incident that occurred on 10 August 2006.  I read that and it does not greatly assist me, in the circumstances, in coming to my ultimate determination.  It has bare relevance, marginally so, to my determination.

20. In relation to the “fainting incident”, Mr Williams make it quite clear that such an incident did occur, but that it took place at the Ds’ home.  The D were not present.  He repeated his instructions that there was a swimming pool in the backyard, that the husband was playing with the child and was “spinning her” around whereupon he got dizzy and fell to the ground.  That was, he submitted, the extent of the incident.  He submitted that no such incident occurred at the shop.  Further, albeit from the bar table, it is a submission that I accept for the purposes of these proceedings, that inquiries had been made of the shop who acknowledged that no such incident had taken place there.

21. I heard submissions from Mr Melilli.  I had earlier made comments in the course of argument concerning issues such as the child's distress and with reference to various aspects of the affidavit material.  It was Mr Melilli's clear submission that the proposals of the wife were preferable.  He then drew a distinction, however, in relation to paragraph 5 dealing with the psychiatric assessment.  It was his recommendation that there be a psychiatric assessment but that the order be directed to both parties to attend upon a psychiatrist for that purpose.  It was his submission that there should be some concern to the court arising from all the circumstances I have both read and heard.

22. In the result, and following a helpful discussion with Mr Williams, it was agreed that his client too, in those circumstances, would undertake such an assessment.  Accordingly I propose to order, by consent, that both the husband and the wife make themselves available for a psychiatric assessment to a psychiatrist nominated by the Independent Children's Lawyer and I will request that Victoria Legal Aid fund that assessment.

23. The other matter addressed by Mr Melilli was the time the husband was to spend with the child and its location.  Paragraph 2(a) of Exhibit “W1” refers to the father's time with the child be not spent at the home of the Ds.  I recall having some robust discussion with Mr Dickson about this particular issue but in the result, Mr Melilli pointed out to me that there was a recommendation in Mr W’s report and which I had overlooked (at page 34) that contact not take place at the home of the Ds and for the reasons stated in the body of his report.  In those circumstances I propose to order in the terms of the wife's Minute of Proposed Orders, (paragraph 2(a)).

24. Mr Melilli submitted it was clear that the child did not desire to spend time with her father in Melbourne.  He expressed some concern that notwithstanding this clear expression of a wish by the child, the husband yet persisted in his application.  He then referred me to page 20 of Mr W’s report which is in the following terms:

    “[The father’s] interactions suggested that he was at a loss and felt undermined by [the mother].  He appeared to be more adult-focused until [the child] began to cry, stating she did not want to travel and wanted him to travel to her.  At this point he made promises to [the child] that he would travel to [M] and spend time with her.  She was observed to negotiate with him, suggesting that he stay in a motel, and gave every indication that she would not stay at his friend's ([…]) home.”  [my emphasis]  [That home is the residence of the [Ds].] 

25. In coming to my determination I have regard to the report of Mr W.  It appears to me that it would be helpful to the parties if I record into this short extempore judgment certain aspects of his report, accepting of course that the contents have yet to be tested in court.  However, and I emphasise, it is the report of a Family Consultant being a person independent to the parties engaged by the Independent Children's Lawyer. 

26. Mr W reported that the wife presented as a “pleasant and engaging” woman who was keen to resolve the issues and “move forward”.  He reported that she displayed "a complete bewilderment" as to why events had unfolded as they have and expressed a “genuine fear” in regard to the husband's possible outbursts of behaviour, viewing them as “family violence”.  In the course of the assessment, she was observed to speak “positively” about the husband.  Mr W observed her as a victim of “family violence” and was left in little doubt that she viewed herself in that light.  I accept of course that this may well be an issue at the final hearing.

27. Mr W reported that the wife, throughout the whole of her conversations with him, maintained that she wanted both girls to retain a relationship with their father.  She insisted that she was willing to foster the relationship but found that the husband was being "reactive and messing with the kids' heads".  Despite concerns, Mr W reported that the wife was hopeful and might be able to eventually get the child travelling by plane to Melbourne in order to spend time with her father.  The wife stated clearly that the child did not have the confidence to travel in this manner or remain away for extended periods of time.  The wife informed Mr W that she was seeking “stability and security” for the children and would work towards the child having sleepovers, but felt it would take time and effort on the part of both parties for this to be achieved. 

28. Mr W then reported his observations of the husband from page 14 and onwards.  In the broad, Mr W reported on an exhibition of “agitation”, and I do not say that as a matter of criticism, demonstrated by the husband throughout the process and that at times he became “heated”, initially towards his daughter S and later towards the wife.  He described them as "heated outbursts" of a verbal nature and observed that it was clear that his demeanour distressed the wife.  He reported that the husband was noted to be highly critical of the wife, less so towards S and made no criticism whatsoever of the child.

29. Mr W reported that as the interview progressed, the husband became more “agitated” and at one point complained that he felt "disadvantaged" with the process.  The husband advised Mr W that he felt he had been "driven to relocation" by the way the wife had managed the process of their separation.  He spoke of feeling personally persecuted by both her and S, and “professionally compromised”.

30. The observations made by Mr W, reporting on what the husband had said, are consistent (and I do not put this as a matter of criticism) with the submissions being maintained in the manner they have through his counsel who said everything that could be said in support of his client's application.  Mr W reported that on many occasions the husband spoke of “withdrawing completely from any relationship” with the two girls, which of course would be most regrettable and may well be just a statement in the heat of the moment.  It is my expectation that it was.

31. Mr W was of the view that the husband presented as being distressed at the ending of his relationship with the wife and that he felt "blocked off emotionally" from the family and from the efforts he had made to “mend bridges”.  He noted that the husband advised he resigned from his employment on 9 January 2007 and actually finished work on 23 January 2007.  He did, as I said, relocate to Melbourne on 27 January.  He observed that the husband was noted to minimise any allegation of family violence, and as I mentioned earlier in the course of this judgment, that may well be a matter that will be aired between the parties in the course of the hearing in November 2007, if it is relevant.

1. Mr W then reported a number of comments concerning the child at pages 18 to 21.  They are important.  I take account of the presentation of the child to Mr W when both in the presence of the husband and the wife.  Sadly, it appeared to Mr W, the child had her own views and concerns.  For example, Mr W assessed the child as feeling responsible for her parents' separation.  However, encouragingly of course, both the husband and the wife maintained that the child knew nothing of the events that led to the separation.  Post-separation, the child has managed reasonable well with only nine days' absence from school between 2 February 2006 to 21 October 2006.

2. Mr W reported that the child was “acutely aware” that her parents do not like each other and that she was “very sad” about that situation.  She raised a concern about possible sleepovers, making it clear "I don't want to sleep over, I don't like them because they are scary and I can't get to sleep”, referring to the Ds' home.  It was brought to my attention by Mr Williams that there had been “no sleepovers” since separation.  That may well be an issue, but whether or not it was an interpretation of the child expressing a prospective view or not is one that will be determined on the evidence.

3. Mr W said that he asked the child to make “three wishes”.  Her first wish was for her father to come and see her and not to expect her to go to see him.  He reported that the child stated her father had advised her she would travel by plane alone in order to see him.  She made it clear to Mr W that she did not want that.  He reported that the husband's interactions suggested that he was at a loss and felt undermined by his wife.  He appeared to be more adult-focused until the child began to cry, stating she did not want to travel and wanted him to travel to her, meaning M.

4. Mr W made the very interesting observation that at this point the husband “made promises” to the child that he would travel to M and spend time with her.  She was then observed to negotiate with him, suggesting he stay in a motel, and gave every indication that she would not stay at the Ds’ home.

5. Mr W then made observations of the parents and the child and also in respect of S.  At page 25, Mr W set out the wife's proposal which included regular phone calls and that S see her father as agreed between S and her father.  The proposals that were put forward by the wife are set out in the report.  I need not go to them because they have since been superseded by further proposals.  Essentially however, they are of a similar nature.  He then set out his evaluation at pages 27 and onwards, and to which I have regard.

6. Mr W made the observation that he saw hope of “settling into a regime” where the child saw her father, if the husband and the wife could meet the child's needs and see the limitations currently put forward by the child.  The aim would be to maintain a relationship which he saw as quite manageable.  I would expect that to be so, given that I have little doubt that a meaningful relationship exists between the child and her father.  He reported that if possible it would be seen as an advantage for the child to have unsupervised time with her father in M, possibly, as suggested by the wife, until the child could manage to travel alone to Melbourne.

7. As to the child's views, Mr W reported that she made clear her view in seeking that her father spend time with her in M.  He reported that it suggested the child was “struggling to cope” with change, and that it was clear the child did not wish to be taken out of her “comfort zone”.  There are other matters commented upon in the report about which I need no longer include into this report and I have regard to his recommendations set out on page 34.  They are clear and are consistent with the ones advanced by the Independent Children's Lawyer.

8. I have given my earnest consideration to the report of Mr W, the relevant affidavits relied upon by the parties and the submissions made on their behalf on 2 and 4 May 2007 and this day.  In coming to my determination, I have regard to the principles explained by the Full Court in Goode v Goode (2006) FamCA 1346 (now reported at 36 FamLR 422) which dealt with an interim parenting decision. I have found the report of Mr W to be quite helpful when considering those relevant matters pursuant to s 60CC(3) of the amended Family Law Act 1975.

9. The issue defined by the parties for my determination was the quantum and place where the husband was to spend time with the child.  Put simply, the central aspect of that was whether it took place in M, where the child lived with her mother and S, or in a suburb outside of Melbourne to where the husband had relocated.  I have no hesitation on the material before me that the time should be spent in M.  The husband is, for his personal reasons, master of his own fate and elected to relocate out of M where the parties had lived as a family since 2001 and where he had been gainfully employed.

10. He persisted with his application that the child travel to Melbourne, which he later changed to an alien environment at B for contact purposes.  His submissions were erected upon thistledown pillars of hope given what I regard as the clearest indication of what would be in the best interests of the child pending the final hearing.  In coming to my determination I emphasise that the parties' assertions of particular events are untested, as is the report of Mr W.  I rely upon the independent third-party assessment of Mr W as it presently stands and the recommendations of Mr Melilli, counsel for the Independent Children's Lawyer.

11. The evidence is quite clear that the pathway to stability for the child has been a troubled one since the date of separation of her parents, and for whatever reasons, she has expressed the clearest of wishes not to travel to Melbourne in order to spend time with her father.  That time has been a difficult one in any event since early 2006.  In my view, both the husband and the child need to erect a more solid foundation based on confidence, comfort and happiness before they can move forward to what I would describe as “the usual arrangements”.

12. The husband clearly has suffered some deep emotional reaction to the separation and holds to himself a belief that his relationship difficulties with the child have been generated by the wife.  He blames her for the current situation.  Should this maintain, it may be difficult for the parties to move forward into the future, but that ultimately will be decided at a contested hearing which is listed for hearing in the November 2007 sittings of the court. 

13. In the meantime, however, I would hope the parties endeavour to both cast the pain of the past aside and, with professional assistance of a Family Consultant and psychiatric intervention, adjust the difficulties to accord the best interests of the child, who is doubtlessly loved by them both.  Given the whole of the facts and circumstances and the submissions of the Independent Children's Lawyer, I propose to order both parties attend upon a psychiatrist for assessment which may only assist me in the final determination of the contested issues to be argued by them. 

14. Finally, I make it clear that in coming to my determination I act upon the best interests of the child.  That is the paramount consideration.  I am satisfied that both the husband and the wife have a meaningful relationship with the child and that the present relationship difficulties encountered by the husband are of reasonably recent origin and connected to the conflicted breakdown and separation between himself and the wife. 

15. In my view, the orders I propose to make will promote the meaningful relationship between the husband and the child, for it places her in a situation of confidence and contentment.  For whatever reasons, the child has expressed the clearest of wishes not to travel to Melbourne and which wishes have been embraced as ones appropriate to act upon by the Family Consultant and by the Independent Children's Lawyer. 

16. In the circumstances I will, in drawing upon Exhibit “W1”, make orders in terms of the exhibit, which will be amended to include remission of the property proceedings between the parties to the relevant court officer and bring it on for final hearing before me in November 2007.  I propose, for the reasons stated, to act upon paragraph 2(a) of Exhibit “W1” for the child not to spend time at the home of the Ds and it will be ordered by consent,  given the submissions of Mr Williams in the course of debate, that both parties attend and make themselves available for the psychiatric assessment.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  6 June 2007

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