DALMENY & TAPPEN

[2019] FCCA 3949

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALMENY & TAPPEN [2019] FCCA 3949

Catchwords:
FAMILY LAW – Parenting – interim hearing

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS DALMENY

Respondent: MS TAPPEN

File Number: SYC 7877 of 2018

Judgment of: Judge Boyle

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Sydney

Delivered on: 18 November 2019

REPRESENTATION

Solicitors for the Applicant: Mr Thorsby of Broken Bay Legal Services

Counsel for the Respondent: Mr Stewart

Solicitors for the Respondent: Thackeray Legal

Solicitors for the Independent Children’s Lawyer: Ms Tin of Legal Aid NSW

THE COURT ORDERS THAT:

1. The matter is listed into a call over on 14 December 2020 at 9:30am for the allocation of hearing dates.

2. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 10 November 2020.

3. The Family Report to deal with the following matters:

   (a)The benefit to the child of a meaningful relationship with each parent.

   (b)The capacity of each parent to protect the child from harm.

   (c)The capacity of each parent to promote the psychological, emotional and educational well being of the child. 

   (d)The insight of each parent into the children’s needs.

   (e)The attitude of each parent to the responsibilities of parenthood.

   (f)Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes.

   (g)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

4. The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.

5. The Family Consultant has leave to view all material produced under subpoena and released for inspection.

6. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the family report.

7. The respondent’s costs of today are reserved.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. That the child, X, born in 2010 (“the child”) live with the Mother.

2. That the mother to ensure the child attend school on each day the school is open for students, except for justified reasons or with the approval from the school.

3. That the mother to follow all directions and recommendations made by the child’s school, including the child’s counsellor and learning support teacher.

4. The paternal grandmother and the mother be restrained from making any negative comment about the other or any member of the other’s family within the hearing of the child and ensure no other person does so.

Communication

1. That the child communicate with the paternal grandparents by way of letters, cards and gifts forwarded to the child not more than eight (8) times per calendar year.

2. That for the purposes of communication between the child and the paternal grandparents pursuant to order 12 above:

   (a)the mother ensure and provide that such letters, cards and gifts be passed on to the child without delay; and

   (b)the mother keep the paternal grandmother notified of the address to enable delivery of such letters, cards and gifts.

3. Within seven (7) days of these orders, the paternal grandmother and the mother to advise each other in writing their email address for communication in relation to the child.

4. The mother email the paternal grandmother the child’s term school report and yearly school photograph.

5. The paternal grandmother and the mother be restrained from making any negative comment about the other or any member of the other’s family within the hearing of the child and ensure no other person does so.

NOTATION:

1. That the Independent Children’s Lawyer meet with the child to explain to him that his paternal grandparents love him and that whilst they may not be in a position to see and spend time with the child at this stage, it does not diminish their care and love for the child. In addition, the Independent Children’s Lawyer may explain to the child that the paternal grandparents may write and forward letters, cards and gifts to him in accordance with orders 12.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7877 of 2018

MS DALMENY

Applicant

And

MS TAPPEN

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. These are parenting proceedings in relation to X, who was born in 2010.  He is now 9 years old.  X’s father sadly passed away earlier in 2018.  The proceedings are between the mother and the paternal grandmother. 

2. The father commenced litigation shortly after the child’s birth in 2010.  There has been litigation on and off since then.  X has been the subject of conflict between his maternal and paternal families the whole of his life. 

3. The litigation has included a contravention application filed by the father on 16 October 2015, a report by Dr B, and several interventions by Child Dispute Services.  Final orders were made by Watts J on 24 November 2017 in the parent’s litigation.  Time occurred over the Christmas period from 17 December 2017 to 18 January 2018, which is the last time that this child saw either his father, or his paternal family. 

4. The report of Dr B makes it clear that X understands that he is the subject of dispute.  If it were in any doubt, the comments made by X to the school counsellor make clear of his awareness of that.  The difficulty that causes for X has been made explicit through the memo produced by the Family Consultant.  She set out the issues for children who are the subject of conflict to the extent that X has been.  Ms C raises:

   X’s potential exposure to this conflict puts him at risk of experiencing a diverse range of symptoms which has the potential to impact his long-term emotional and psychological development.  Consequently, X spending time with the paternal grandparents in the future will require very careful consideration.[1]

   [1] Child Dispute Conference Memorandum dated 12 April 2019

5. I understand from the paternal grandmother’s point of view, maintaining contact with her grandson is extremely important.  It is hard to be other than sympathetic with the position she finds herself in. However, my responsibility is to look at what orders should be made in X’s best interests. 

6. This child has been the centre of conflict for the whole of his life.  That is unarguable, despite the submissions to the contrary made by the solicitor for the paternal grandmother.  It is apparent to this child that there is enmity between the maternal and paternal families.  He has not seen his paternal family since shortly prior to the death of his father.

7. There was no agreement with respect to X’s attendance at his father’s funeral.  The mother was not invited.  It was suggested that he would be picked up in a hire car, and taken to the funeral.  At his age, it is difficult to understand how that could possibly have worked for him. 

8. There is potentially a serious problem for X in the court to consider orders for time arrangements without knowing a great deal more about this matter.  This would include the opportunity for cross-examination of the parties.  An update from Dr B given his previous knowledge of this family would also assist, although I appreciate there are costs difficulties in that.

9. What I propose doing today is ordering a family report because of the delays in the preparation of reports.  If it is that the paternal family are able to afford the cost of a report from Dr B, then I can vacate that order.  Clearly, the court will need assistance.  This is not a simple matter.  It has been going on for the whole of X’s life, and the potential consequences for his psychological wellbeing are serious.

10. The Independent Children’s Lawyer promotes orders that would see communication happening other than by face-to-face communication. It is really important that happen. X needs the support of his mother in promptly providing him with letters, cards and gifts.  Without that support it will be very difficult for him to know what to make of material arriving from the paternal family. 

11. Provision of that kind of communication leaves the door open for X with his paternal family.  It lets him know that he is loved, that he is cared for, and that he is not forgotten.  These things are important for him to know. 

12. If something arises that needs to be dealt with the parties can contact chambers about that.  The report should be available by the callover, and we can see where the matter goes from there.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate:

Date: 14 January 2021