Cameroon and Darcy (No 2)

[2010] FamCA 228

FAMILY COURT OF AUSTRALIA

CAMEROON & DARCY (NO. 2) [2010] FamCA 228

FAMILY COURT – CHILDREN – Application in a case – Time child spends with mother suspended – Child interviewed by family consultant – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mr Cameroon

RESPONDENT: Ms Darcy

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 19 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Charman

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

COUNSEL FOR THE RESPONDENT: Mr Reynolds

SOLICITOR FOR THE RESPONDENT: SRG Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Croft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. That DURING THE PERIOD OF THE ADJOURNMENT all previous orders in favour of the mother spending time with the child … born … July 1998 be suspended.

2. That pursuant to s 62G(2) of the Family Law Act 1975 Dr A family consultant interview the said child at either 9:15am or 11:15am on 9 March 2010 or at such earlier time as can be arranged but not earlier than Friday 26 February 2010 and provide a report on her interview with the said child with such report to be given orally if necessary no later than 9:00am on 10 March 2010.

3. That by 4:00pm on 26 February 2010 the mother file and serve responding documents to the Application in a Case filed by the father on 12 February 2010.

4. That further consideration of the said Application and any Response to be filed by the mother be adjourned to 9:00am on 10 March 2010 or such earlier date as may be advised.

5. That leave be granted to the father to amend the Application Alleging Contravention filed on 12 February 2010 without the need to re-serve such amended application.

6. That further consideration of the Application Alleging Contravention be adjourned to 9:00am on 10 March 2010.

7. That the mother be restrained and an injunction is hereby granted restraining the mother from removing the said child from her school today for any purpose whatsoever.

8. That pursuant to Section 62B and Section 65DA(2) 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 are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 928 of 2007

MR CAMEROON

Applicant

And

MS DARCY

Respondent

EX TEMPORE REASONS

1. The first matter that is before me today is an Application in a Case filed by the father on 12 February 2010 in which he seeks orders that all previous orders in favour of the mother spending time with the child be suspended until further order.  He seeks the matter be listed urgently and before Friday 19 February 2010, and also costs.  I am told that the application was served on Tuesday the 16 February 2010, but not seen by the respondent’s solicitor until the next day 17 February 2010.

2. There are no responding documents filed by or on behalf of the respondent at this stage.  Mr Reynolds has indicated, though, that subject to what order I propose to make on an interim basis, he wants the opportunity for his client to file answering documents.  I note that he does not seek an adjournment of this matter for that purpose.  He has made submissions from the bar table on the basis of his instructions, and they are, in general terms, to oppose the application.  Thus that is the application that is before me, and as I say, it is opposed.

3. This is a long-running matter which has been in my docket now for some time, namely, September 2009, and the matter has been back before me since then on a number of interlocutory applications, generally relating to the failure by the mother to comply with the orders of this Court, and specifically in failing to return the child to the father at the conclusion of time that the child spends with her.  There have been other issues that have arisen which I will not elaborate on now.  They are well known to everybody given the recency of them.  This is not the first time since the matter has been in my docket that the father has made this application. 

4. Indeed, early in December 2009 he filed an Application in a Case in similar terms, and as a result of that application I did in fact make an order suspending the time that the child was to spend with the mother. I accepted that there was a failure by the mother to comply with orders of the Court, and there was the prospect that she would continue to fail to comply with orders of this Court.  More specifically, there has also been concern, and it has been conceded by Mr Reynolds, who appears for the mother, about the mother influencing the child, and, as I say, that is quite apparent on the documents that are before me.

5. The catalyst to this application being brought is the refusal by the Children’s Contact Service to facilitate handover on every second Friday.  The current order, which is an order of July 2009, provides for the child to spend time with the mother for one weekend from the conclusion of school on Friday until the commencement of school on the Monday, and then on the next weekend from the conclusion of school until 6:30pm on the Friday, with handover to be effected at the Children’s Contact Service.  Today is Friday and is the day when, if that order was to be implemented, the mother would collect the child from school at the conclusion of school and then hand the child back to the father at 6:30pm at the Children’s Contact Service, but as I say, the Children’s Contact Service has indicated they are not prepared to facilitate that handover any more – well, for the time being anyway.

6. There is a letter to that effect annexed to the father’s affidavit filed in support of his application.  I think it is important just to record what the Children’s Contact Service say.  They say that the reason for the suspension of the handovers is due to the continued refusal by the child to go on the handovers.  The child arrives at the service on the day of handover distressed, and often crying, and refuses to go on the handover.  The Children’s Contact Service suggest an alternative, namely, that all handovers take place at the school.  That is the immediacy of the problem, namely, the Service will not facilitate handover tonight.

7. However, as Mr Charman has explained to me, the basis of his client’s application is really the continual influence by the mother of the child against the father, causing her distress and resulting in occasions when the child does not return to the father.  For example, the most recent occasion, as referred to in the father’s affidavit, was on the weekend commencing 5 February 2010. On Friday 5 February 2010 the father went to the Children’s Contact Service at 6:30pm to have the child handed back to him and that did not occur, and thus prima facie, the mother is again in breach of the orders that have been made by this Court.  The father deposes, and I am fully aware of this, that that is not the first time this has occurred.  As I say, that is the most recent occasion of the failure of the mother to comply with the orders of this court.

8. Initially I raised with Mr Charman whether an option might be to suspend the intervening Friday, given the unwillingness of the contact service to facilitate handovers, but leave in place the intervening weekend, given that as Mr Charman has conceded there has been no difficulty in a physical sense of the child going with the father when the father collects the child from school.  There is still evidence from the father of the child exhibiting some distress and concerns after having spent some time with the mother but that has not led to the child not going with the father.

9. Thus that is an option that I have raised with the parties, namely, just dealing with the immediate problem which is the unavailability of the Children’s Contact Service.  However Mr Charman’s firm position, in terms of the application his client makes, is that enough is enough.  They are my words but that is the effect of what he says to me. The child simply has to be left in a stable environment and not subject to the influences of the mother, which he says - and as I say the Independent Children’s Lawyer agrees with - is causing the child distress.  That simply cannot continue on the father’s case and that is why he wants the time that the mother is to spend with child suspended until further order.  Read into that, though, until the trial of this matter.  In that regard the trial in this matter will not take place until, at the earliest May this year. 

10. Mr Reynolds’ submission is that the problem appears to be only related to the unavailability of the Children’s Contact Service.  That can be overcome by rearranging the time that the child spends with the mother.  His instructions are that the mother would seek an order that the child spend every weekend with her, commencing at the conclusion of school on the Friday and concluding on the Monday.  I have indicated to Mr Reynolds that that is not an application that I am prepared to receive and indeed act on today.  If his client wants to pursue such an application she will have to file a proper application and a supporting affidavit. 

11. Another proposal put by Mr Reynolds on instructions is, because of the problems with the Children’s Contact Service to change the order such that, for example, the time in the intervening week takes place on say a Thursday night.  In other words, mother collects the child from school on the Thursday after school and returns the child on the Friday morning.

12. There is no documentation before me from the mother and in a sense I can understand that, given the urgency with which this matter has been brought before the Court.  But I must say, and I have commented on this before, if the mother considers it appropriate to alter the orders before this Court she has had ample opportunity to bring her own application, rather than simply leave the matter continue as it has with there being breaches of the orders by her in relation to not returning the child.  That is a course she has chosen to adopt and it is a course with which I have no sympathy.

13. Thus I am not concerned to proceed with this matter without documents from the mother because, to repeat, she has had ample opportunity to bring her own application once problems developed, and she has not. 

14. Counsel for the Independent Children’s Lawyer’s submission to me today is that the Independent Children’s Lawyer supports the suspension of the time that the child spends with the mother, but only until the child can be interviewed by Dr A, who is the family consultant in this case.  He has ascertained that Dr A can interview the child on 9 March 2010.  Any earlier appointment would involve the family consultant rearranging matters that she already has in her diary.  An attempt has been made to see if that can be done but unfortunately, because of the absence from the Registry of Dr A and her supervisor today, it has been impossible to pursue that.  Thus at this stage I proceed on the basis that Dr A can interview the child on 9 March 2010 but there is a possibility of an earlier time being arranged through her supervisor.

15. Mr Boehm has been quite specific and forceful in his submissions as to why there should be suspension entirely, rather than for example taking up the initial position I raised with Mr Charman of leaving in place the alternate weekends but suspending the Friday nights.  The Independent Children’s Lawyer’s position is that the mother has been influencing this child and that is causing the child to stress.  That needs to be assessed by an interview of the child.  In the meantime there should be no opportunity for the mother to influence the child and thus, a suspension until that interview takes place is more than amply warranted in this case, given its history, particularly, of course, the recent history.

16. Thus they are the parameters of the dispute before me today.  I must say that I continue to be concerned about the welfare of this child.  It is obvious that the parties are in conflict and they have continued their conflict to the detriment of the child.  However, of recent times it has become quite apparent to me from the documentation that has been filed that the mother has embarked on a pattern of influencing this child against the father at every turn and every opportunity.  I need to do no more than refer to her appalling behaviour in attempting to prevent the child travelling overseas with her father in December 2009 and into January 2010 and, as I have said, the continual breach by her of orders of this Court.

17. In that regard I note that there is an Application Alleging Contravention listed before me today.  Obviously I will not deal with that today but that highlights and raises the alleged breaches of orders of this Court by the mother.  She will have the opportunity, obviously, to respond to that application and she may be in a position to indicate she has a reasonable excuse for breaching these orders, but prima facie, at this point, it is perfectly apparent to me and there can be no denying that the orders have not been complied with.  The child has not been returned on a number of occasions and, as I say, my current view of the matter is that the mother has embarked on an exercise of doing everything she can to turn this child against her father.

18. That cannot continue.  This child cannot be left in that position and those circumstances, however, the position at the moment is that although I have the father’s evidence before me, I have the history of the matter, and I have the submissions of the Independent Children’s Lawyer, it may be that my assessment of what is happening in this child’s life at the moment is not correct.  I am not a social scientist, but we have the benefit of a family consultant assigned to this case, Dr A, and she is obviously the person to whom I should turn to assist me in understanding what is happening in this child’s life at the moment and what this child’s current views are.

19. Ordinarily, it would be a case of leaving in place the status quo and having the child interviewed by the family consultant but I am so concerned about the negative impact upon this child of the mother’s conduct that I am prepared to suspend the time that the child would normally have with the mother until we do have some input from the family consultant.  Now 9 March 2010 is the date when this can happen, however, subject to any submission from counsel, I would propose to have my associate make inquiries of Dr A’s supervisor to bring that date forward so that this matter can be dealt with more expeditiously.  Thus I propose to make an order allowing for that.

20. This matter is due back before me, in any event, on 10 March 2010.  I do not propose to bring that date forward. Coincidentally, that is a date that is convenient if there is an interview that takes place on 9 March 2010, because Dr A presumably would be available to come to court on 10 March 2010 and give an oral report.  Now, that is the exercise that I have in mind.  That needs to be run by Dr A.  She may not be available on 10 March 2010, we do not know, but I propose to leave in place 10 March 2010.  If I am able to arrange an earlier time for the interview, then I would propose to list this matter so soon thereafter as I am able to, to receive the report – orally, if necessary – of Dr A.

I certify that the preceding 20 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 February 2010.

Associate