Ethel and Dobbs

[2013] FamCA 1032

FAMILY COURT OF AUSTRALIA

ETHEL & DOBBS [2013] FamCA 1032

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time – best interests – consideration of Family Report – orders made for the child to spend time with father under supervision of agreed expert

Family Law Act 1975 (Cth) s 60CA, 60CC, 64B

Goode v Goode (2006) 36 Fam LR 422

Hall & Hall (1979) FLC 90-713

APPLICANT: Mr Ethel

RESPONDENT: Ms Dobbs

FILE NUMBER: ADC 788 of 2009

DATE DELIVERED: 23 December 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Father appearing in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Parker

SOLICITOR FOR THE RESPONDENT: Georgina Parker Lawyers

Orders

1. That the child L born … 2006 spend time with the father in the presence of Ms B each month on the following terms:-

   (a)for the first two consecutive periods for three hours with the mother to be at liberty to remain present during the time that the child spends with the father or as may be directed by Ms B;

   (b)thereafter on each subsequent occasion for four hours with the mother’s attendance to be limited to attending with the child at the offices of Ms B at the commencement and conclusion of the child’s time with the father but not otherwise;

   (c)that the periods of supervised interaction as provided for herein shall be on the basis of one session each calendar month and at such locations as arranged between the parties and Ms B for the first two periods and thereafter as agreed between the father and Ms B.

2. That the parties pay jointly any costs associated with Ms B’s attendance, facilitation, consultation and any report as may be ordered.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ethel & Dobbs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 788  of 2009

Mr Ethel

Applicant

And

Ms Dobbs

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. This matter was listed before me following orders that I made on 13 September 2013 that provided for a resumption of time between Mr Ethel (“the father”) and L born in 2006 (“the child”). The orders provided for the interaction between the father and the child to be the subject of supervision by an agreed expert namely Ms B whose appointment was not limited to the supervision of the time spent pursuant to the order of 13 September 2013 but also to facilitate the relationship between the father and the child.

2. The order of 13 September 2013 provided as the significant operative provisions the following:-

   3.That the child [L] born … 2006 spend time with the father in the presence of [Ms B] for 2 hours each fortnight on dates as arranged between the parties with [Ms B] and at locations as arranged between the parties with [Ms B], to commence as soon as practicable in consultation with [Ms B].

   4.That the mother be at liberty to remain present during the time that the the child spends with the father and as recommended by [Ms B] including in the event that [Ms B] recommends the mother not attend.

3. It was noted that if asked or at her election, Ms B would provide a report as to her observations of the time spent between the father and the child.

4. The matter returned before me on 19 December 2013.  The father remains self -represented.  The mother was in attendance and represented by her solicitor Ms Parker.

5. The only live interim application is an Application in a Case filed by the father on 8 March 2013.  That application appears not to have been dealt with and is really a complaint that the mother has contravened the provisions of the order of 6 October 2011.  That Application in a Case is supported by an Affidavit filed 8 March 2013.  The short summary is that the father complains of a breakdown in the arrangements to see the child pursuant to the said orders and that between the making of the orders and July 2012 there was significant difficulty in the father spending time with or communicating with the child, after July 2012 the father had not spent any time with or spoken to the child.

6. Whilst the mother agrees that there has been an almost total breakdown in the relationship, the reasons for the breakdown are controversial.  The father clearly asserts that he once had a loving and close relationship with the child in circumstances where the objective evidence shows that the child was happy to be in his care.  The father argues that the dramatic change in the disposition of the child is not attributed to any adverse behaviour on his part but rather the poisoned fruit arising from the mother’s efforts.  The mother however denies that she does not support the relationship but that the child is reacting to her perception of the father’s conduct prior to the separation of the family.  In short, the mother asserts that she does all that she can to promote the relationship but that the child is demonstrably and unreservedly opposed to spending time with the father.

7. What is agreed is that the child is resistive to spending time with the father but the basis for that opposition remains a matter of dispute.

8. The situation has been further exacerbated by there being no time spent nor communication between the father and the child up to the orders of 13 September 2013.

9. Accordingly, the resumption of time spent under the facilitation and supervision of the Family Consultant represents an important stage.

10. The father travels from interstate to attend the supervised visits and Court proceedings.  The attendance by the mother is also a matter of inconvenience and cost to her.  Whilst there was not a formal Application in a Case and Response which targets with any precision the orders being sought by the father and those that may be promoted by the mother, I considered that it would be unfair to require the parties to formalize the interim proceedings by the filing of an Application and Response.  Both the father and the mother’s solicitor were content for the matter to be argued on the papers that formed the Court record and notwithstanding the existence of the said Application in a Case, the hearing proceeded on the basis of the father’s oral application.

11. After some enquiry of each of the father and the mother’s solicitor, the difference between their respective positions was not great.

12. Upon intimation by me that a final hearing of this matter would not occur within the next six months, the father sought orders in terms of the broad recommendations as set out by the Family Consultant in her published report.  For her part, the mother did not support the said recommendations but rather was prepared to consent to a continuation of orders 3 and 4 made 13 September 2013 save and except that there was a concession that on a graduated basis the time would be increased from 2 hours to 3 hours.

BACKGROUND

1. The report of the Family Consultant must be read against the background of a report ordered by Dawe J on 6 June 2013 which appointed Ms J, Clinical Psychologist, to undertake a Family Assessment and to report in writing to the Court.  That report was published on 6 August 2013.  The document bears some considerable consideration in that it impacts upon and is interrelated to the report of the Family Consultant who observed the interaction between the parties and the child.

2. The mother and the child reside with the maternal grandparents in Victor Harbor.  There is an extended family on both sides, however there is effectively no relationship between the child and the father’s extended family.  In particular, the father has two children by a former relationship who are now both young adults.  They are the subject child’s half-sisters.  Notwithstanding the age difference those adult children appear to be interested and want to spend time with the child.  When prompted by Ms J the child referred to her half-sisters without enthusiasm and in what was reported as a “distant manner”. It was a common theme throughout the report of Ms J that the child was positive about her mother and feels loved and cared for by her, but the child appears removed from her father and readily expresses the view that “he isn’t very friendly”.  The relationship between the mother and the child is clearly a matter of strong inter-dependence.  The following is recorded at page 5 of the report:-

   [L] talked of sleeping in her mother’s bed, stating that this is something that she has done all her life.  She said that she becomes “addicted” to this when she was little, but that it was not her fault. [The] child reported some interest in having friends sleep over at her house.  When the writer queried where she and her friend would sleep, [the child] said she would put up a tent next to her mother’s bed and not fall asleep.  In observation with her mother, [the child] became involved in play readily and with good humour.

3. The child’s response to the suggestion by the report writer that the child might spend time with her father was notable by the dramatic change in the demeanour and countenance of the child.  It is reported that:-

   She became pale, stopped any spontaneous discussion, her breathing rate increased and she reached for her toy polar bear and hugged it close. [The child] kept her eyes down and spoke in a high, soft voice. [The child] indicated that she did not want to see her father, that he shouts at her, but otherwise could not remember times that she had spent with him. She was unable to describe detail about her feelings or her wishes and it became difficult to communicate with her.

4. It seems that the change in her presentation was of such dramatic effect that the report writer ceased the observed interaction.  The demeanour of the child as observed by Ms J was in stark contrast to her presentation at school and the school report for the 2013 mid semester which shows that she has developed independent learning skills and is noted to be joyful and funny.  The issues are made more complex by the reference in the report to an early Family Assessment conducted in 2010 by Ms C.  Notwithstanding the obvious and apparent hostility “and suspicion” between the parties, the child was still spending time with the father in a positive manner.  Ms C reports by mid 2010 that “[The child] appeared to be very comfortable with [Mr Ethel] for the whole session”.

5. It was Ms C’s view that the child was suffering from separation anxiety and was under “developmental strain”.

6. It is also notable that the child was the subject of a Child Protection Services assessment arising out of allegations that the father had behaved in a sexually inappropriate and/or abusive fashion towards the child.  The father was trenchant in his denials and even in the most recent hearing speaks of his desire to engage in proceedings which will see him “vindicated”.

7. The report found that allegations of abuse were not substantiated and it was the mother’s position that the child would only willingly spend time with the father when she (the child) was developmentally equipped to do so.  The child has also been undergoing counselling and/or therapeutic intervention by a psychologist although it is unclear as to the focus of that counselling.  The ill- defined basis for which the child was the subject of ongoing counselling was the basis for an order made by me that the mother be the subject of an injunction restraining her from allowing the child to undertake counselling or therapy without order of the Court.  The engagement by the mother of the child in ongoing therapy appears to be counter-productive and not in the child’s interests until such time as there is a diagnosed need for that level of intense intervention with the child and importantly, a focus of the professional involvement.

8. The child has not spent time with the father for more than 18 months.  The father was of the view that if time could resume then the hitherto loving and warm relationship enjoyed between the father and the child would phoenix-like arise from the ashes of their current relationship.  The longer that there was no time spent the more likely would be the result of irreparable and possible irretrievable damage to the relationship.

9. From the mother’s perspective, the level and demonstration of anxiety experienced by the child on separation from her is obvious and that whilst the father considered that his time with the child had worked well, the mother’s position is that the child needed to be “physically peeled off the mother to attend” and required frequent breastfeeding for comfort.  In short, to force the issue may cause the child to recoil completely and disengage to a level where the relationship would be irretrievable.

10. It is Ms J who urges caution and restraint by the father and would attempt to restart the relationship by the gradual introduction of the child to the father in a supervised environment with a modest but increasing time base.  The father accepted the broad thrust of the recommendations of Ms J in that regard and it is those recommendations that resonate with the orders made by me on 13 September 2013 and ultimately are the subject of discussion by Ms B.

11. Emphasised by Ms J is a clear view that at 7 years of age “[The child] does not have the developmental capacity to make an informed decision as to what should occur”.

12. Whilst the reluctance and anxiety appears to be demonstrable, the basis and reason for same has not been brought out into the light.  In any event that issue is likely to occupy the attention of the parties at the final hearing, but I view the comments of Ms J as an important consideration in terms of the weight or lack thereof that should be placed upon any apparent enunciation of the child’s wishes in relation to her father.

REPORT OF MS B

1. The issue that then requires consideration is the extent to which the mother should remain involved in the observed interactions and the duration of that interaction.

2. At the commencement of the hearing it was agreed that the services of Ms B would continue, that depending upon the time and the conditions, Ms B would facilitate and supervise the interaction between the father and the child on a monthly basis for a duration up to 4 hours a month.  The current orders provided for the father to spend 2 hours a fortnight with the child.  As stated, the mother seeks to restrict the duration of the time but also ensure that she be able to be present with the father and the child unless required to leave by Ms B in which circumstances she would do so.  The mother argues that to do otherwise i.e. to remove the mother from the process entirely will only result in the child being so resistive to spending time with the father, would be a barren exercise and only cause to exacerbate the distress to the child and further entrench whatever distorted view the child has of him.

3. By order dated 13 September 2013 Ms B was appointed to “facilitate the relationship between [the child] and the father…and to provide a report as to her observations only of the time spent between the father and [the child].”

4. The parties properly engaged with Ms B and were able to set aside their differences at least insofar as it was necessary to make the appropriate arrangements for the observed and reportable interaction.

5. Observations took place on six separate occasions incorporating different venues and importantly, on the last two occasions in November involved the introduction of the child’s half siblings Ms M and D.

6. The report is comprehensive and contains significant detail as to the observations of Ms B in respect of the interaction of the parties and the child together with a helpful summary of observation in respect of each occasion.

7. It is difficult to discern a clear pattern that permeates the interaction. By way of general summary, Ms B commented that the presentation of the father in circumstances where the child demonstrated rejection “remained motivated, accepted the writer’s suggestions and made multiple attempts to engage with her.”

8. Importantly it was noted that the mother was the child’s “sole source of security and comfort”.  Whilst the mother accepted the direction of Ms B when she should leave the father and the child alone, Ms B formed the clear view that:-

   80. [Ms Dobbs] was observed to be largely passive and neutral while at the same time conveying a very clear and strong message to [the child] that she should rely on her only to navigate her way through parental conflict.

9. Additionally the author noted that notwithstanding the child demonstrated at times a high level of anxiety, on those occasions when the mother was absent the interaction between the father and the child appeared to improve. The author formed the view that the child was able to tolerate the mother’s absence from time to time.

10. It is also a feature of the mother’s current circumstances that she and the child reside with the maternal grandparents.  There would not appear to be any issue relating to anxiety on the part of the child when she is left in the care of the grandparents in the absence of the mother.

11. The focus of the interim proceedings is not directed to the parenting capacity of the parties or whether there are matters of behaviour exhibited by each of the parties which contributes to the child’s anxious presentation.  As noted, both parties agree that there should be further supervised observations by Ms B.  The reason whether justified or not for the child’s anxiety and the underlying cause of same will no doubt be a matter for the final hearing.  The focus of the interim proceedings is to adopt a pathway which reinstates the relationship between the father and the child on the basis that in the absence of any proper foundation to the contrary, the child should have a meaningful relationship with her father and by necessary extension the extended paternal family including the child’s half-siblings.

RECOMMENDATIONS

1. Ms B is prepared to provide further observed interaction on a monthly basis up to four hours to enable the father, the child and her half-siblings to re-establish their relationship.  It is a significant issue that Ms B considers the mother should absent herself from the process even to the extent that if possible the maternal grandparents should effect the handover.

2. The mother remains opposed to that proposition.  In any event the mother made it clear that the maternal grandparents would not be prepared to involve themselves in the process and accordingly no order should be made that involved the maternal grandparents in handover or any aspect of the process. That is regrettable.  The child clearly has a close relationship with the maternal grandparents and if the focus is to reduce the anxiety in circumstance where the continued presence of the mother may be an exacerbation of the child’s adverse presentation, the involvement of the maternal grandparents may have been of assistance.

THE LAW

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the framework in which parenting orders can be made on both a final and an interim basis. Specifically, s 64B (1) (a) of the Act empowers me to make a parenting order until further order.

2. The child’s best interests are the paramount consideration in the making of any parenting order (s 60CA), with a list of considerations of how the best interests of a given child are to be determined are provided for in s 60CC of the Act. That list includes both primary considerations (s 60CC (2) – (2A)) and additional considerations (s 60CC (3)).

3. I am conscious of the obligation created by s 60CC (2A) that if I determine that there is a need to protect the child from physical or psychological harm or from being subjected to abuse, neglect or violence, then I must give the considerations in paragraph 2 (b) greater weight.

1. The Full Court of the Family Court of Australia (Bryant CJ, Finn and Boland JJ) in Goode v Goode (2006) 36 Fam LR 422 at 442 commented upon the appropriate manner in which interim parenting disputes should be conducted:-

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.

   The Court also looks at less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children and the parties respective proposals for the future.

CONCLUSION

1. Whilst the reports of Ms J and Ms B should not be considered as in any way determinative of the issues presented by each of the parties “Family Reports are meant to be and almost invariably are, valuable and relevant material to assist a Judge in formulating his conclusions” (see the comments of Evatt CJ, Fogarty and Yuill JJ in the Full Court of the Family Court of Australia decision of Hall & Hall (1979) FLC 90-713).

2. I am persuaded that it is in the child’s best interests that there be further efforts made to re-establish the relationship between the father and the child.  I consider that the observations of Ms B as to the benefit or otherwise of the mother remaining at the interaction are apposite.  There needs to be a movement towards an independent relationship with the child and her father.  There may be initial distress but it is not forgotten that the entirety of the process is under the strong supervision and facilitation by a suitably qualified expert.

3. The way forward it seems to me is to put in place a graduated process which would see effectively a continuation of the current orders (but extending the time to 3 hours) with the mother remaining within the process at the discretion of Ms B, but that thereafter, other than the mother’s necessary involvement in bringing the child to the observation, she is to have no further part in the process and the time should thereafter be extended to 4 hours with the ability of Ms B to terminate the interaction should the distress of the child warrant that action.

4. For the foregoing reasons, I make the orders that commence at page 2 of this judgment.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 December 2013.

Associate:

Date:  23 December 2013