Collison and Dench

FAMILY COURT OF AUSTRALIA

COLLISON & DENCH

[2007] FamCA 1541

FAMILY LAW – CHILDREN – Child related proceedings – Where self-represented Father ambushed parties with application for increased time spent – Where previous consent orders entered into – Where independent sources previously indicated support for status quo – Where independent psychiatric report pending – Application denied

Family Law Act 1975 (Cth)

APPLICANT:

Mr Collison

RESPONDENTS:

Mr & Mrs Dench

INDEPENDENT CHILDREN’S LAWYER:

Ms Dooley

FILE NUMBER:

BRF

2948

2006

DATE DELIVERED:

15 November 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

15 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Smith of Counsel as direct brief appeared for the Applicant Father

COUNSEL FOR THE RESPONDENT:

Mr Burridge of Counsel appeared for the Respondent Maternal Grandparents

SOLICITORS FOR THE RESPONDENT:

Hoy & McCormack, Solicitors

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The child, … born … April 2004 spends time with the Father from 10.00 am Sunday to 10.00 am Monday each week, with the Maternal Grandparents delivering the child to the Father at the M State School at …, M at 10.00 am Sunday and the Father returning the child to the Maternal Grandparents’ residence at 10.00 am Monday.
The child spend time with the Father from 12.00 pm 20 November 2007 until 12.00 pm 21 November 2007 instead of time that the child would have spent overnight on 18 November 2007 pursuant to the Orders of 20 June 2007.
The Father be at liberty to phone the child by landline between 6.00 pm and 6.30 pm each Friday or at such other time as the parties may mutually agree in writing.
That the child spends time with the Father from 10.00 am 23 December 2007 until 5.00 pm 25 December 2007 with changeover at the … Service Station, 12 kilometres south of P, or at such other time and place as the parties may mutually agree in writing.
The Father’s Application in Form 1 filed 19 October 2006 is adjourned to the judicial duty list at 10.00 am on 18 February 2008.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF2948 of 2006

MR COLLISON

Applicant Father

And

MR & MRS DENCH

Respondent Maternal Grandparents

REASONS FOR JUDGMENT

The applicant father of the subject child who is aged 3 and a half has not engaged a solicitor but has engaged counsel by way of direct brief. He therefore has no solicitor to prepare his documentation for him, to file his documents and serve the other side and generally to follow the usual protocols.
Orders were made in this matter by consent on an interim basis back on 20 June and those orders provided effectively that the child was to reside with the maternal grandparents and that the child spend time with the father from 10.00 am Sunday to 10.00 am Monday each week and arrangements for transport. There were various other provisions for the parties to attend for a psychiatric evaluation, for the father and his partner to attend a parenting course, for the father to participate in DNA testing and the matter was then adjourned to 31 August.
Nothing happened on 31 August and it was adjourned through to today. So the matter has been set down for today's date for months.
On the day of the hearing the applicant seeks to file a fresh application seeking dramatically different orders. Instead of the consent provisions for one day a week he now seeks three days a week. He seeks specific orders for Christmas, phone contact and other variations.
He seeks an order that a particular person who is named have no contact with the child and an injunction issue. That person has not been served with any documents or been given the right to be heard. I am informed that the first the respondents knew about this was the respondents' solicitors were informed yesterday afternoon and counsel became aware of it about 5 to 10.00 this morning.
It is not the way we do business. The applicant father is rather fortunate that counsel for the respondents did not simply seek an adjournment because had an adjournment been sought, it would almost certainly have been granted. You do not drop material on the other side at the last minute. It is called an ambush. People try and do it fairly regularly and the Courts frown on it and the consequence is, not only is there an adjournment but frequently an award of costs can be made. That is the penalty you face for engaging in that sort of behaviour. Fortunately Mr Burridge has not sought an adjournment and has been able to make submissions and the matter was able to proceed today but I simply draw that to the father's attention, particularly if he persists in preparing his documentation and simply engaging counsel as an advocate.
I turn then to consider the application and the cross-application on the merits. I have already referred to the existing orders which were made some five months ago. No DNA testing has been carried out. There is a welter of affidavit material before the Court but no real explanation why the DNA testing has not been done. I am informed that it will be done. I trust it will be.
The orders of June last year are as clear as crystal. The grandparents are to pay for the DNA testing. They are requesting it but obviously it needs provisions for the appointment of a laboratory to carry out the tests and for the father to cooperate in attendance in that exercise.
The psychiatric evaluation referred to in the orders of June has taken place. Unfortunately there has been a delay because the psychiatrist selected has an extremely demanding schedule and although he has done the evaluations, I am told the report will not be available until mid-January. I note that the father and his partner, Ms N, have attended the parenting course, they have done that and they say that they have gained significantly from it and it is comforting to know that at least some part of the orders of 20 June has been complied with.
The order sought by the father on today's date in a document handed up sought to be filed by leave today is that the father have three consecutive days each week until further order:
(a)being from 10.00 am Sunday to 10.00 am Wednesday;
(b)in regards to the Christmas holiday period that the father spend Christmas Eve from 5.00 pm with the child, returning her to the maternal grandparents at 5.00 pm Christmas Day.
The significance of that is that where the existing orders operate from Sunday until Monday, Christmas Day here is on a Tuesday and they are seeking that the time be delayed for 24 hours so that the period will be from the Christmas Eve which is a Monday through till the Tuesday. I will address that aspect shortly.
The father seeks an order for phone contact; he seeks an order that the travel continue to be shared equally between the applicants and the respondents. He seeks an order in relation to Mr R and I will deal with that shortly.
Counsel for the maternal grandparents prepared draft handwritten orders that they seek today. They seek that the order for Christmas be from 10.00 am on 23 December until noon on 25 December so that the father would have two nights, as I understand it, starting as usual on the Sunday afternoon and going through to the Tuesday.
They seek an order restraining the father from displaying an image of the child on his internet site. They seek an order that the changeover under paragraph 2, that is the Christmas holidays, be at a site south of P. They seek an order that the current weekends time be altered as they wish to attend a wedding in … of the maternal grandmother's niece.
The father's material consists of an affidavit by himself and an affidavit of his partner. Obviously there is no affidavit material from the respondents as they were not aware of the orders being sought.
One of the documents, however, that was handed up by counsel for the respondents was a download which occurred about a week ago from what appears to be the father's My Space site on the internet. I am not clear on the evidence who has access to this site; it is not greatly relevant for present purposes but I will refer to that document shortly.
The independent children's lawyer referred the Court to the report of Ms J dated 29 May this year. I have read that report, I read it back in June and I have read it again on today's date. I think I am being reasonably objective in saying that the report is certainly not flattering of the father. She summarises the position at paragraph 105 as follows:
"It is my view that he has no insight into the effects of his behaviour on others and he has no understanding of children's emotional needs. It is unlikely that he could facilitate a positive memory of the mother in [the child]'s mind.”
The father for his part has filed an affidavit from his mother, the child's paternal grandmother, himself and his partner critical of Ms J's behaviour during the preparation of the report. If those observations be correct it would certainly be unprofessional on Ms J's part. I am unable to comment further as she has not had the opportunity to be heard on that issue. It may or may not impact on the validity of the observations and conclusions that she makes in the report.
I accept the submission by the independent children's lawyer that for present purposes I proceed on the basis that Ms J's report is the most objective assessment available to me and I have to pay appropriate regard to the concerns that she has expressed as to the father's parenting capacity. I accept the submission made that those concerns are not slight, they are significant.
On behalf of the father I was referred to paragraph 107 of Ms J's report where she makes reference to the maternal grandparents being somewhat possessive of the child. In paragraph 109 she concludes:
"Irrespective, [the child]'s relationship with her father needs to advance. In my opinion this can extend to overnight visits once each week. I see no compelling reason why the father's movements are restricted to the Gold Coast.”
It was submitted that the father's evidence is that he had sought additional time from the grandparents and they had simply not agreed.
I turn to consider the various issues I have been asked to determine on today's date. The first and probably the most critical is the father's application today that the time he spends with his daughter be increased from one day a week to three days a week. There is a well-known decision of Rice v Asplund which goes back about 20 years. In effect it says that once an order has been put in place then there has to be significant alteration of circumstances before the Court should change it. That situation applies equally to the interim position as well as final orders.
So, for example, if parties litigate and have a three-day trial and one of the parties does not like the result, it is not appropriate for them 12 months later to come back and want to re-litigate the whole issue; the Court simply says, nothing has changed.
Here, there were interim consent orders made less than six months ago. They were made for good reason, they were made with legal advice and upon consideration. In my view there would need to be some dramatic change before I would interfere on today's date with that arrangement that the parties themselves struck.
We are still awaiting the report from the psychiatrist, Dr V. The whole of the circumstances, to my mind, are best dealt with in an enlightened dispassionate fashion in about eight to 10 weeks time. I am told that Dr V's report will be released about mid-January.
RECORDED: NOT TRANSCRIBED
I will turn briefly to the orders sought by the grandparents that the father not display the child's photograph on the internet site referred to. I do not propose to make an order about that. The father said he does not intend to do it. I accept him at his word. I have to caution the parties that they will be judged at a final hearing as they have acted, in the past, in the present and between now and the date of hearing. In the internet posting, the child is dressed up in her father's rock music gear, but more concerning I find is the entry that appears to have been made by the father:
"So now the poor little tyke is stuck with her grunge-lovin' daddy and subjected to force fed fistfuls of Alice in Chains, Velvet Revolver and stage diving games on the couch”.
I could live with the stage diving games on the couch for a 3 and a half year old but being force fed a particular form of music I would have thought is not the most appropriate form of parenting conduct if that, in fact, is what is taking place. It may be, of course, that it is a degree of hyperbole on the father's part, simply impressing his internet supporters.
The view that I take is that I propose to leave the time the father spends at one night a week. That was the independent children's lawyer's preferred position. Again, that comes from an objective source. I note the independent children's lawyer said that if the Court thought it was appropriate it could be increased to two days. To my mind that is best looked at when Dr V's report becomes available.
In relation to Mr R, as I have said, the evidence indicates he has only seen the child once every two to three months. I do not propose to make any orders in relation to that. Again, it would be foolish of the maternal grandparents to attempt to inculcate this person in the child's life. It can be very disturbing to the child. I simply expect that they will act accordingly and act circumspectly in this regard.
For the coming weekend the maternal grandparents simply seek an order that the child spend time with the father from 12 noon on 20 November 2007 until 12 noon 21 November 2007 instead of the time the child would have spent overnight 18 November 2007. The father then would have the child from the afternoon of the 18 November to the afternoon of 19 November. They are seeking that it be adjourned for a period of some 48 hours as I understand the position they wish to attend a wedding.
Here I have a 3 and a half year old girl who lost her mother at a very tender age. As I recall the evidence she had had very little to do with her father up until the date of her mother's death. She has only had limited contact with her father since that time. It is enormously important that a child be able to have an experience of a wider family, to know that there is a network of extended family there, on both sides, I hasten to add. An appropriate opportunity to do that is at a family wedding so I propose to make orders in accordance with those terms and I will accede to that application.
For phone contact the father seeks one phone call a week. The child is 3 and a half. I expect she is not a skilled communicator. I accept it is an additional time for the father to be able to communicate with the child. It was neither opposed nor agreed to seemingly so it is agreed to?
RECORDED: NOT TRANSCRIBED
It is not opposed, so whether it was opposed or not I would have made an order that the father be at liberty to phone the child between 6.00 pm and 6.30 pm each Friday or at such other time as the parties may mutually agree in writing.
RECORDED: NOT TRANSCRIBED
It is to be by landline.
I turn to the Christmas issue. It is sad the number of disputes we have about Christmas which is supposed to be a time of peace and good will. The father, as I understand the evidence, will be with his extended family down on the Gold Coast. The respondents for their part intend to travel up to North Queensland. I bear in mind that the existing orders say that the grandparents will deliver the child to I think M State School and then the father drops the child back so they share the driving.
In his application today the father proposes that the driving be shared. Presumably he put in that proposal not realising that the grandparents were going to be up in North Queensland over the Christmas period.
RECORDED: NOT TRANSCRIBED
I will make it until 5 o'clock on the Tuesday on Christmas Day, but I will accede to the request that it be at the … Service Station, 12 kilometres south of P. I do not want anybody driving on Christmas Day so it seems to me that the alterative is for one party to do the whole of the driving to drop down and the other party to do the whole of the driving dropping back. It is a big ask for a small child, four hours.
RECORDED: NOT TRANSCRIBED
So the father will have the child from 10.00 am, that is going be an early start.
RECORDED: NOT TRANSCRIBED
I will leave the orders in place. The parties can come to their own agreement and I urge them to communicate. If necessary use the independent children's lawyer to facilitate negotiations but at this stage 10.00 am 23 December until 5.00 pm at the … Service Station on 25 December. Changeover to be at the … Service Station unless otherwise agreed.
As I have said, I do not propose to make orders about Mr R or putting the child's image on the internet.
RECORDED: NOT TRANSCRIBED
18 February - I have dealt with this matter now for six months, I am content to let another Judge have a look at it and he can consider Dr V's report and take the matter from there.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date: 15 November 2007

[2007] FamCA 1541

15 November 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies