Delany and Delany

[2016] FamCA 687

FAMILY COURT OF AUSTRALIA

DELANY & DELANY [2016] FamCA 687

FAMILY LAW – CHILDREN – INTERIM ORDERS – Where the children are aged twelve and four – Where the children live with the mother and her partner – Where the eldest child was removed by the father – Where orders had been made that the father return the child and suspending the father’s time with the children – Where the eldest child has expressed a desire to live with the father – Interim orders made to reinstate the father’s time with the children until final hearing.

APPLICANT: Mr Delany

RESPONDENT: Ms Delany

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 3157 of 2008

DATE DELIVERED: 22 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: LP Alidenes & Company

SOLICITOR FOR THE RESPONDENT: Mrs Rossi

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weate

Orders

IT IS ORDERED

1. That pending further order the children B, born … 2004 and C, born … 2012 spend time with their father:

   (a)From the conclusion of school on Friday until the start of school on Monday, or Tuesday if a long weekend, each alternate weekend commencing on Friday 26 August 2016;

   (b)Each Wednesday from after school until before school on Thursday, commencing on Wednesday 24 August 2016;

   (c)During school holidays in accordance with Order 4.4 made 13 April 2015; and

   (d)       In accordance with Order 8 of the Consent Orders made 13 April 2015.

2. That the children spend time with the mother in accordance with Order 15 of the Consent Orders made 13 April 2015.

3. 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 Delany & Delany 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: SYC 3157 of 2008

Mr Delany

Applicant

And

Ms Delany

Respondent

REASONS FOR JUDGMENT

1. B, born in 2004 (now aged 12), and C, born in 2012 (and now aged 4), are the children of Ms Delany (“the mother”) and Mr Delany (“the father”).

2. Proceedings in relation to  parenting  were instituted by the mother in the Federal Circuit Court at Wollongong on 28 August 2013.

3. On 9 December 2013, orders were made in the Federal Circuit Court, inter alia, providing for the children to spend time with their father.

4. A Child Inclusive Conference took place on 12 March 2014, and a report was issued to the Court. In the report, the Family Consultant stated:

   [B] experiences his family as “divided” with his father on one side and he, [C] and his mother on the other. He said that he felt “bad” about this situation. [B] said he would like to be able to spend more time with his father and wishes that his father lived closer ([the father] lives in [Suburb D] and [the mother] in [Suburb E]). While [B] said he was not sure what his mother wanted, in relation to him spending time with his father, he later described his mother as being “angry” compared to the other members of his separated family. [B] linked his mother’s angry (sic) to her wish that he not spend any time with his father. He also believes that his mother “does not want to be friends with Dad … Dad might be okay about being friends with Mum”.

   [B] believes that [C] needs to be able to spend more time with their father as “how can he get to know him and do things with us”. He thought that [C] was the “saddest” person in his separated family as “there are 168 hours in a week and he only sees dad for 3 [hours]”.

   It is apparent that [B] is loyal to and loves both his parents. He seems particularly loyal to his father and this, coupled with his belief that his mother does not want there to be any contact between him and his father will, in the medium term, place [B] in a difficult emotional position which is likely to impact on all areas of his life.

5. At some time prior to May 2014, the mother re-partnered. The mother’s new partner, Mr F, lives with the mother and the children. The relationship between Mr F and B has not been a happy one.

6. On 5 October 2014, B contacted his mother whilst he was in the care of his father and told her that he would be staying with his father on Monday as Monday was a public holiday. B later left a voice message on the mother’s phone saying, “You can’t tell me what to do, I am old enough to make my own decisions”.

7. In January 2015, after spending time with his father during the school holidays, B informed his mother that she did not need to enrol him in school in Wollongong as he had decided that he was going to live with his father.

8. The Family Consultant prepared a further memorandum dated 7 July 2015. In relation to B, the Family Consultant reported:

   He reiterated that he has always wanted to spend more time with his father and that he now wishes to live primarily with his father, in Sydney. [B], in part, linked his wish to his perception that he is closer to his father than to his mother. He said other reasons for wishing to live with his father relate to his experience of his mother’s and maternal grandparents’ alleged negative attitude to his father. He said that he feels “horrible” when these adults allegedly make negative comments about his father. According to [B], he has raised his unhappiness about hearing the members of his maternal family speak about his father in this manner. He said that “they apologise but it makes no difference they still say these [negative] things”.

   [B] said that he experiences his father as the calmer and quieter parent alleging that his mother “yells”, particularly at [C]. [B] expressed concern for how [C] might feel about his mother’s alleged yelling but believes that, at this stage, given [C’s] age, he ought to remain living with their mother. [B] said that, should he live with his father, he would miss [C] adding “I will still see him. I always have fun with him.” [B] thought that if living with his father, he would be able to see his mother “a couple of times a week”. He believes he would also spend time with her each alternate weekend and during school holidays.

   [B] expressed sadness and confusion about his mother’s alleged response to him telling her he wished to live with his father. He alleges that his mother said “I do not want to see you” if you live with your father. He said that, “I do not feel good [about this comment] and didn’t understand” how his mother could say or mean this. He said that his mother thinks his father “is really bad”. He reiterated his comments made at the time of the CIC that he believes that his father tries to be “friends” with his mother. He commented on the interaction he had allegedly witnessed between his parents while waiting for the commencement of the appointment for this intervention, saying that he experienced his father making an effort to engage his mother in conversation and noting that she, allegedly, responded with a nod or a “yes/no”. [B] believes that, for his and [C’s] benefit, his parents need to be able to be seen by him and [C] to be pleasant to each other.

   [B] said he loves his mother (and his father) but feels more comfortable with his father, “I can have a conversation with him. I’m a boy and I need my dad”. He talked about his dreams of being a  professional [sportsman] and feels that it is his father who can support him in pursuing this dream as “mum does not support me much” in relation to the rigours of practising and also being able to attend coaching camps. [B] believes that, if he did not have [sports] coaching mid-week, his mother would no longer support him and his father seeing each other midweek. [[The father] takes [B] to [sports] coaching during their mid-week time together.]

   [B] said that, if he is unable to move to live with his father, he wants this to occur prior to the commencement of the 2016 school year when he moves to high school, he would feel “very disappointed, angry, upset. I would feel broken” (sic).

9. On 11 January 2016, the mother obtained, with the assistance of the New South Wales Police, a provisional Apprehended Domestic Violence Order for her protection against the father.

10. On 15 January 2016, the father removed B from the home of the maternal great grandmother while the mother was at work.

11. On 27 January 2016, an order was made directing B’s return to the mother.

12. On 8 April 2016, the father collected both children from school. On 10 April 2016, C was returned to the mother in accordance with the existing orders, but B was not.

13. B’s cousin Ms G made a statement to police in relation to the attempt to return B. She stated that she attended to facilitate the changeover when B was to be returned at the McDonalds restaurant at Suburb H. B refused to get into the car and stated that he was not going back. He was eventually persuaded by his cousin and his father that he should follow the orders and get into the car. They drove to McDonalds.

14. A third party took C to the mother and placed him in her car. Angry words were said by Mr F. B’s cousin interpreted Mr F’s words as threats against the father. B was present during the exchange. The father returned home with B.

15. On 23 May 2016, orders were made by Watts J in the following terms:

    ORDERS AND NOTATIONS:

    1.The father is to return [B] (“[B]”) born … 2004 to the mother as soon as is practicable.

    2.I make orders in accordance with paragraph 2, 3, 4 and 5 of the Application in a Case filed by the mother on 13 May 2016 except that the recovery order is not to issue for a period of 72 hours. Those orders are as follows:

    2.Pending further order, orders 4, 5, 8, 9, 10 and 13 of the orders made on 13 April 2015 be suspended.

    3.Pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover, with such assistance as they require and if necessary, by force, the child [B] born … 2004 (male) and to return the said child to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

    4.Pursuant to section 68B and 67Z of the Family Law Act 1975, “the Father” Mr Delany born … 1973 is, pending further order, hereby restrained by injunction from and/or causing third parties to:

    a.  Remove, attempt to remove any or all of the children from his place of residence or educational facility;

    b.  Take or attempt to retake possession of the child.

    5.Pursuant to section 68C of the Family Law Act 1975, a Police Officer may arrest the father without warrant, if such Police Officer believes on reasonable grounds that the father has since the orders herein were made, breached the injunctions contained in order 4 herein and it is taken for the purpose of this order that each of the injunctions in order 4 relate to the personal protection of the children or any of them.

    3.So that it is clear, order 2.2 means [B’s] time with his father is suspended until a further order is made (and that order shall be made when the matter is next before me; see order 6).

    4.I dismiss the father’s Response filed 20 May 2016.

    5.I expedite the final hearing of the matter.

    6.As soon as is practicable, the Independent Children's Lawyer is to prepare a draft minute of order for the preparation of a Chapter 15 expert report after which time I shall relist the matter before me. I note that the parties agree that the costs of that report can be funded by way of recourse to the proceeds of the sale of the home that is currently in a trust account.

    7.I reserve both parties’ and the Independent Children's Lawyer’s costs of today.

    8.I reserve my reasons.

16. During the time B was with his father and before the orders were made on 23 May 2016, B had a conversation with his cousin Ms G. He said to Ms G, “If I have to go back, I’m just going to leave again. I don’t want to be back there.” Ms G said, “You’re not allowed to do that. Your dad will be in trouble and it’s not going to work out well for anybody.”

17. The father caused B to be returned to school on 26 May 2016.

18. Neither of the children has seen their father since that date.

19. Orders were made by consent appointing a Single Expert, Dr I, a child and family psychiatrist, to prepare a report. Interviews for the preparation of the report are due to occur on 29 August 2016.

20. On 30 June 2016, the mother received a telephone call from B’s school advising that B had left the school and had told his friends that he was catching a train to Suburb J to see his father. The mother contacted police.

21. On 30 June 2016, Ms G received a message from B to the effect that he was at Suburb J and needed her to collect him. B told Ms G that he had walked to the railway station and caught a train. Ms G asked B to wait and said that she would contact his father and the Police.

22. At about 5pm on 30 June 2016, Ms G received a call from Suburb J Police Station and spoke to a female police officer. She told them where B could be found. Ms G was later contacted by police who told her that B had been picked up and that he was very upset and did not wish to return to his mother. Ms G asked to speak to B who told her “I’m fine I just don’t want to go back.” B was returned to his mother by the police.

23. The matter came before me in a Judicial Duty List on 17 August 2016. The application before the Court was the father’s application to reinstate time with B and C. That application was opposed by the mother.

24. The children were represented by an Independent Children’s Lawyer (“ICL”). The ICL supported the father’s application.

25. On behalf of the mother it was submitted that the Court should not consider the father’s application until such time as Dr I’s report is available for consideration.

26. It is not the mother’s case that the children should never again spend time with their father.

27. The mother, in her affidavit material filed in support of her response, includes, and relies upon, allegations of physical violence by the father towards her. All of those allegations relate to incidents which occurred before the mother consented to the orders for the children to spend substantial and significant time with their father.

28. The matter is listed for a first day hearing before me in December 2016. It is unlikely that the final hearing of the matter will be completed any earlier than the first half of 2017.

29. The issue to be determined here is the arrangements to be put in place for both of the children until such time as a final hearing can occur.

30. It needs to be remembered that C has not spent time with his father since May 2016. This is a very considerable period of absence for a four year old from a loved parent.

31. The father was present in Court during submissions. He was represented by senior counsel. It must have been clear to him that if the children are not returned to their mother at the conclusion of any period of court ordered time, then that will be a significant negative factor in the consideration of both his ability and his suitability to parent them in the future.

32. These are interim proceedings and the various allegations of each of the parents cannot be examined. That will occur in the context of a final hearing with cross-examination and with the advantage of a report from Dr I and his oral evidence.

33. The mother alleges that the father is improperly influencing B’s views and, in particular, is influencing B to run away from his mother’s home. That allegation will be examined at the trial.

34. B has been expressing a strong view since March 2014, firstly that he wants to spend more time with his father, and, since mid-2015, that he wants to live with his father.

35. C’s views have not been canvassed but there is nothing in the evidence which suggests that he does not wish to spend time with his father.

36. The evidence of the Family Consultant in relation to the nature of the relationships between B and his parents is clear. He loves them both but feels closer to his father.

37. The Family Consultant does not comment on the relationship between B and Mr F.

38. B himself, in text messages sent to his cousin Ms G, complains about Mr F. In an exchange of messages on 27 June 2016, B told his cousin that Mr F “started going off at me because I don’t want to live there” and, “He started going on about how the I (sic) only care for myself and that the world evolves (sic) around me and I get everything I want.” and, “Then he makes a big list about things I can’t even do and that I’m useless to everyone”. B’s last message said, “Then I told him to please be quiet because I don’t want to hear anymore of your yelling”.

39. Concerns have been raised by B with the Family Consultant about the effect on both of the children of the mother’s negative attitude towards the father.

40. The Family Consultant raised concerns about the inability of the parents to communicate.

41. The mother in mid-2015 raised with the Family Consultant her concerns that the father involved B in the litigation. B himself told his cousin in a text message that his mother had told him the Court required his Ipad to be examined.

42. It was submitted on behalf of the mother that the children should not spend time with the father until the report of Dr I is available, presumably by about October. What will change between now and then was not made clear. It is reasonable to speculate that prolonging the enforced separation of B from his father might strengthen his desire to live with his father and foster antipathy towards his mother. It would not be desirable that, when B sees Dr I, his views should have been distorted by his being unreasonably withheld from his father.

43. It is not clear from the submissions on behalf of the mother how a separation of both children, but particularly B, from their father, advances their best interests.  

44. Whatever may be the mother’s suspicions about the father’s role in B running away on 30 June 2016, the fact remains that this 12 year old left his school and found his way to Suburb J by public transport. The police were involved in his return to his mother.

45. That behaviour is dangerous. On that occasion, the mother was not able to ensure B’s safety.

46. If B is again impelled to run away in order to see his father, the outcome may not be as fortuitous for him.

47. The best interests of these children are served by the reinstatement of regular time with their father and strict compliance with the orders until such time as the substantive issue can be heard and determined.

48. There should not be any opportunity for the parents to meet or for any further unpleasantness to occur at changeover. The orders for weekend time will provide for the father to collect the children from school and return them to school. The orders for weekday time will be extended so that the father collects the children each Wednesday afternoon from school and returns them to school on Thursday morning.

1. This is not the same regime as that to which the children were accustomed but the changes are necessary to prevent any disruption during changeovers.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 August 2016.

Associate: 

Date:  22/08/2016