Collingwood and Collingwood - [2020] FamCA 390

FAMILY COURT OF AUSTRALIA

COLLINGWOOD & COLLINGWOOD

[2020] FamCA 390

FAMILY LAW – INTERIM – COVID-19 – Where the mother has unilaterally ceased the children’s time with the father – Where the children are in self-isolation at the recommendation of medical professionals – Orders for the children to have video contact with the father.

APPLICANT:

Mr Collingwood

RESPONDENT:

Ms Collingwood

INDEPENDENT CHILDREN’S LAWYER:

Brisbane Family Law Centre

FILE NUMBER:

BRC

6830

2017

DATE DELIVERED:

21 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

21 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

A P Hodgson & Associates

THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brisbane Family Law Centre

Orders

IT IS ORDERED

That the children, B born … 2003, C born … 2007 and D born … 2010, communicate with the father each Saturday at 2pm for up to half an hour by Zoom.
That for the purpose of Order 1:
(a) The children will use the mother’s mobile phone.
(b)The mother will, before midday on Saturday send by text and email to the father the invitation to the Zoom call at … and by email ….
(c)The children will be afforded privacy during the call and the call will not be recorded by any party or participant.
That the matter be referred to the registrar to facilitate the further listing on 21 June 2020 or as soon as practicable thereafter.
That leave is granted to the Independent Children’s Lawyer to relist the matter before the registrar in relation to the implementation of these orders.
That the mother file and serve a response to the father’s application and any affidavit material upon which she seeks to rely not later than 4pm on 4 June 2020.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

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 Collingwood & Collingwood 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 SYDNEY

FILE NUMBER: BRC 6830 of 2017

Mr Collingwood

Applicant

And

Ms Collingwood

Respondent

REASONS FOR JUDGMENT

Mr Collingwood (“the father”) and Ms Collingwood (“the mother”), are the separated parents of three boys, B aged 17, C aged 13 and D aged 10 years.
The father asserts that there has been a history, since the parents separated in November 2017, of the mother resisting his spending time with the children.
On 22 January 2019 orders were made for the children to spend time with the father on three Saturdays out of four with the changeover to occur at the G Contact Centre (“the Centre”). Unfortunately, the contact centre was not able to accommodate the family and the contact did not start until 30 November 2019.
There were three supervised sessions conducted at the Centre. In a letter dated 15 May 2020, addressed to the Independent Children’s Lawyer (“ICL”) the Centre reported:
Parent-Child interactions between [the father] and all children have been observed to be appropriate and child-focused. Attachment between [D] and [the father] has been observed to change with [D] originally providing negative narrative regarding visits and refusing hugs on greeting or farewell to more recently initiating hugs and holding on to the [father] at farewell.
The family then moved to facilitated changeovers.
The children were not presented for changeover on 21 March 2020. The mother did not respond to requests by the Centre for a case review meeting between 1 April and 30 April 2020. Multiple requests were made by the Centre to the mother for a meeting after 30 April 2020 but she refused.
On 15 May 2020, the Centre wrote to the ICL informing her that services were suspended because of the mother’s non-compliance with the agreement for the provision of services.
The application before the Court is the father’s application seeking to vary the orders so that the venue for changeover is at a McDonald’s Family Restaurant. In the alternate, the father proposes that he collect and return the children from their residence, remaining in the car at all times.
The mother has not responded to the application.
The matter was mentioned before a registrar on 13 May 2020. The mother was directed to file a response and any affidavit upon which she sought to rely by midday on 15 May and the registrar directed that, in the absence of agreement, the matter would be listed for hearing.
The ICL wrote to the mother indicating that it was her position that the contact between the children and the father should re-instated and changeovers should occur as the father proposed.
The mother responded to the ICL on 14 May 2020 stating:
Thank you for clarifying this…
I will reply to you properly when I have time after school hours however I have sent you medical evidence that the children and myself are also in isolation and I have previously sent these medical orders to you and the other party.
I am attaching these again for your reference.
The medical evidence to which the mother referred was a report dated 26 March 2020 referring to D’s having a urinary tract infection on March 2020 and a report from a general practitioner dated 26 March 2020 referring to D’s having a respiratory tract infection.
The ICL replied to the mother on 14 May 2020 confirming that she had read the medical reports and stating:
Given it is now mid May and the national guidelines on staying at home have relaxed I believe there is a way to enable the children to see their father and still keep your family safe. Perhaps you could make some suggestions around how this could occur. For example [the father] might agree to have the children at his home only thereby minimising contact with others while they are with him. Also [the father] could undertake not to have the children if he (or any member of his household) was in any way unwell.
The mother responded in a lengthy letter, setting out the matters that might well have comprised her affidavit of evidence. The ICL wrote to the mother telling her that she could file her affidavit signed but not sworn. The mother responded with another letter but did not file either a response or an affidavit.
The matter was before the registrar on 15 May 2020 when the mother appeared by phone but did not remain for the entirety of the mention. In the course of the mention, the matter was listed for hearing before me on 21 May 2020.
The mother was notified of the listing by the ICL.
On 18 May 2020 the mother was notified by my associate of the listing.
On 19 May 2020 the mother received a link to join the hearing by Microsoft Teams.
At 8.35 am on the morning of the hearing, the mother forwarded to the Court, the ICL and to the solicitor for the father a letter with annexures, in all 22 pages, seeking an indefinite adjournment of the father’s application.
The mother was contacted by email and told that she needed to appear at the hearing at 10am.
At 10am, there was no appearance by the mother. The ICL telephone the mother but the mother did not answer.
The matter proceeded on the basis that the mother’s email and annexures formed part of the evidence.
One of the annexures to the mother’s email was a letter from the children’s general practitioner, Dr H, dated 19 May 2020, which stated, inter alia:
Since the beginning of the year all three children have been unwell with recurrent viral illnesses and are as a result more at risk of being susceptible to other viral illnesses with potential for more severe illness from these viruses should they be exposed. Both [B] and [D] both (sic) have asthma and are at a higher risk of complications from respiratory infection as a result of this…
I am recommending them to continue to self isolate while we continue to see ongoing cases of COVID 19. They should limit contact to member of their household only or for medical treatment or emergencies.
Having regard to the matters raised by the general practitioner, the ICL did not support the reinstatement of face to face time as sought by the father.
However, it is appropriate that the children continue to have some contact with their father and to that end the ICL prepared a Minute of Orders providing for Zoom weekly contact.
The ICL advised that she had forwarded the Minute to the mother and sought the mother’s input in relation to the practical implementation of the order.
Whilst the father’s anxiety to resume face to face contact with the children is entire understandable and appropriate, it is also appropriate that the advice of the children’s medical practitioner be considered and, in the present circumstances, the children’s physical health must take precedence over the benefit of their spending time with their father.
To some extent, the detriment will be ameliorated by the video conferencing between the father and the children.
The matter will be relisted before a judge for further consideration of the resumption of fact to face time between the father and the children in one month.
For the purpose of the further hearing, the mother must file a response and affidavit in compliance with the directions already been made and those documents must be filed by 4pm on 4 June 2020.
The mother should understand that, if she chooses not to file documents in accordance with this direction, the Court may not be prepared on the next occasion, to have regard to any communication received from her.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 May 2020.

Associate:

Date: 21 May 2020