CURRIE & WILKINS

[2016] FCCA 1911

FEDERAL CIRCUIT COURT OF AUSTRALIA

CURRIE & WILKINS [2016] FCCA 1911

Catchwords:
FAMILY LAW – Parenting – persistent refusal by mother to comply with separate orders made by two judges of the court directing her to permit the father to spend time with the children – mother ordered to comply with previous orders made – no proof of violence attributed to father – therapeutic counselling ordered.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS CURRIE

Respondent: MR WILKINS

File Number: MLC 44 of 2013

Judgment of: Judge Wilson

Hearing date: 5 July 2016

Date of Last Submission: 5 July 2016

Delivered at: Melbourne

Delivered on: 5 July 2016

REPRESENTATION

Counsel for the Applicant: Mr R. Hoult

Solicitors for the Applicant: Farrar Gesini Dunn

Respondent appearing in person
Counsel for the Independent Children's Lawyer:	Ms M. Stavrakakis
Solicitors for the Independent Children's Lawyer:	Victoria Legal Aid

THE COURT ORDERS BY CONSENT

1. Pursuant to r.15.25 of the Family Law Rules 2004 (Cth), the Department of Education and Training is released from the obligation to comply with the subpoena issued by the mother on 11 April 2016.

2. The contravention applications filed by the father on 22 October 2015, 26 October 2015 and 21 December 2015 are dismissed.

3. The mother is at liberty to enrol the children X born (omitted) 2004 and Y born (omitted) 2004 at (omitted) Secondary College in year 7 in 2017.

THE COURT FURTHER ORDERS THAT:

1. The matter be adjourned to this Court on 24 August 2016 at 10.00 a.m. for interim hearing with an estimated hearing time of half a day.

2. Forthwith, the mother is to comply with the orders made by his Honour Judge Burchardt on 29 April 2014.

3. With a view to their commencing reportable family therapy as soon as can be accommodated, the mother, the father and the children X, Y, W and Z (collectively “the children”) attend upon one of the following three psychologists, whoever is first available to accommodate them, namely –

   (a)Dr J; or

   (b)Mr V; or

   (c)Ms L.

4. Attendance upon one of the psychologists ordered pursuant to paragraph 6 hereof shall be in accordance with dates and times specified by the psychologist, save that –

   (a)the said psychologist shall use his or her best endeavours to commence such therapy forthwith and with all due diligence and dispatch; and

   (b)the said psychologist is to conduct no less than four sessions, each of one hour’s duration, between the date of this order and the date when this proceeding is next before the Court.

5. The mother and father are to pay the fees of the psychologist in equal shares.

6. The Independent Children’s Lawyer must, as soon as the identity of the psychologist is known, provide to that person –

   (a)all material filed in this proceeding;

   (b)the s.67Z report dated 17 May 2016; and

   (c)the child inclusive conference memorandum dated 20 June 2016.

7. The psychologist referred to in paragraph 6 hereof is authorised to communicate with the Independent Children’s Lawyer on such matters as are considered necessary to advance the family therapy.

8. By no later than 4.00 p.m. on 17 August 2016, the psychologist is to produce a report of the family therapy to the parties, with the Independent Children’s Lawyer forward a copy of same to the Court.

9. The mother’s oral application for a stay of these orders is refused.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 44 of 2013

MS CURRIE

Applicant

And

MR WILKINS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. A high degree of volatility has pervaded this litigation. In the latest appearance the parties, Ms Currie (“the mother”) and MR WILKINS (“the father”), are at odds about certain practical implications at the recommendation of Ms P (“the family consultant”) following her child-inclusive conference held on 16 June 2016.[1]

   [1] Child Inclusive Conference Memorandum to Court prepared by Family Consultant Ms P dated 20 June 2016.

2. To better understand the factual setting of this latest rash of skirmishes it is necessary to say a little about the family. The father is 48 years of age. In (omitted) 1997 he married the mother, now 45 years of age. They have four children – W aged 14, Z aged 14, X aged 12 and Y aged 12 (“the children”). The parents divorced in July 2010.

3. On 29 April 2014 final orders were made by consent by his Honour Judge Burchardt. Pursuant to those orders the children were to live with the mother and spend time with the father pursuant to a complex regime. On 14 December 2015, I made orders requiring the parties to give effect to his Honour Judge Burchardt’s orders. The mother filed an application in April this year seeking orders that she have sole parental responsibility and that the father have time with the children to be agreed.[2] The mother sought orders permitting two of the children, X and Y, to be enrolled in (omitted) Secondary College. That is now an agreed position.

   [2] Initiating Application filed by Ms Currie on 27 April 2016.

4. The mother has withheld the children from seeing the father for an extended period of time. Unsurprisingly, the father has pressed today, forcibly and, at times, in a borderline rude manner for orders by which his time with the children is reinstated. The memorandum of the family consultant dated 20 June 2016[3] tells of acrimony between the parents and of the absence of parental insight into parenting. The family consultant was critical about aspects of the father’s approach towards the mother but also to the children. The family consultant referred to the father’s anger, the explosive and unpredictable nature of his temper and that he responds to trivial events in a manner out of all proportion to the incident. The family consultant also made observations about the affection displayed by the father towards his children.

   [3] Child Inclusive Conference Memorandum to Court prepared by Family Consultant Ms P dated 16 June 2016.

5. The family consultant described the parents as exhibiting mutually poor behaviour. The mother, according to the family consultant, is highly responsive to receiving negative reports from the children about the father with a view to gaining attention from the mother. The father, according to the family consultant, has a “forceful and uncompromising personality”, lacks “emotional intelligence” and is insensitive to others, so she has said.[4] In her memorandum dated 20 June 2016, the family consultant recommended a sequence of short-term therapeutic interventions managed by a counsellor familiar with family law issues. The family consultant named, by way of example, three persons well known to this Court, namely Dr J, Mr V and Ms L.

   [4] Ibid.

6. In debate before me today, the father said he was not opposed to undertaking family therapy. However, he said he was frustrated with the emergence of a seemingly never-ending array of new psychologists, so he said, who all took a large amount of time getting up to speed, only to find that once a particular psychologist was up to speed, a different, new one was introduced. The father said that he has not seen his children since 2015 and he feared that any introduction of yet another psychologist would further forestall his opportunity to see his children. Rather than the three persons named by the family consultant, the father suggested retaining a person currently engaged, namely Mr P.

7. During debate I pointed out to the father that his wishes to see the children are always to be subordinated to the best interests of the children. That is the effect of s.60CC of the Family Law Act1975 (Cth). Accordingly, while relevant to a consideration of the best interests of the children, the desire of one parent to see another parent or another parent to exclude the other from seeing the children at all will never be determinative. Mr R. Hoult, counsel for the mother, submitted that the proposal advanced by Ms M. Stavrakakis on behalf of the Independent Children’s Lawyer was to be preferred in that Ms L should be appointed. Mr Hoult and Ms Stavrakakis submitted that the person ultimately appointed to act as a therapeutic family counsellor should be left to prescribe a regime for the father’s time to be spent with the children.

8. To my mind, that inverts the various roles people play in this litigation. To my way of thinking the family therapeutic counsellor should perform his or her role, but such a role involves recommending, not deciding, whether and if so, what time is to be spend as between the father and the children. It is for me to decide that point. As matters presently stand, I made orders requiring the parties to give effect to the orders made by his Honour Judge Burchardt on 29 April 2014. So far as I can tell, that order has been ignored or, worse, deliberately disobeyed. I do not take kindly to my orders being ignored or disobeyed. The father has filed three contravention applications as a result.[5] These are yet to be heard and determined by the Court. I order the mother to forthwith reinstate her compliance with the orders made by his Honour Judge Burchardt and which I ordered her to comply with previously. That is to take place immediately as the word “forthwith” instructs.

   [5] Contravention applications filed by the father on 22 October 2015, 26 October 2015 and

   21 December 2015.

9. The identity of the therapeutic counsellor to whom the task of conducting the therapy sessions must be specified. It seems to me that any of Dr J, Mr V or Ms L are suitable - the real issue being the immediacy with which any one can be urgently retained. The associated issue is the speed with which the therapeutic family counselling can be given time to work so that I can make an assessment of the success or otherwise of the therapy.

10. Before turning to the precise form of the orders I am willing to make, let me mention three other things –

    a)first, the father’s contravention applications have not yet been heard;

    b)second, a great deal of time and effort was made of allegations of violence attributed to the father. He denied engaging in any such violence, pointing out that the date of any such alleged violence was 1 March 2009, over seven years ago. The temporal significance of that event, even if proved, is difficult to elevate; and  

    c)third, a consideration in the memorandum of the family consultant dated 20 June 2016 report was the possibility that the children be permitted to spend time with the father in accordance with their wishes. It is probably too early to decide that - the therapy proposed must run its course.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 26 July 2016