Farina and Naima

[2018] FamCA 469

FAMILY COURT OF AUSTRALIA

FARINA & NAIMA [2018] FamCA 469

FAMILY LAW – CHILDREN – who is to supervise the child’s time with the father – where the child is nine years old – where consent orders were made in December 2017 in terms intended to remove pressure from the child as recommended by the most recent Family Report – where the father spends two hours every eight weeks with the child – where it is ordered that the father’s partner will supervise the child’s time with her father.

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637

APPLICANT: Ms Farina

RESPONDENT: Mr Naima

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation & Family Law

FILE NUMBER: BRC 9358 of 2014

DATE DELIVERED: 22 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 March 2018
27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Maguire Barnes Family Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Carter Farquar Mediation & Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The Order made by consent on 6 December 2017 is amended such that, in lieu of the persons and organisation named in that Order, Ms S will hereafter supervise the child’s time with her father.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party seeks an order that the other party pay his or her costs:

   (a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

   (b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these 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 Farina & Naima 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 BRISBANE

FILE NUMBER: BRC 9358 of 2014

Ms Farina

Applicant

And

Mr Naima

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parents of now nine year old E[1] (the child) reached agreement about her future parenting arrangements on 6 December 2017.  Their agreement was reflected in Orders made by consent that day.  Those Orders contain a Notation to the effect that the terms of the Order were agreed following the acceptance of a recommendation by Ms AA, a Family Consultant, about the need to remove pressure from the child. 

   [1] Born in 2009.

2. Ms AA made this recommendation – amongst others – following her facilitation and/or observation of the child’s time with her father.[2]

   [2] In accordance with an order made pursuant to s 65L of the Family Law Act 1975 (Cth).

3. The December 2017 Orders provide, in summary, that:

   a)the mother have sole parental responsibility for all of the major long term issues relating to the child;  and

   b)the child live with the mother;  and

   c)the child spend time with her father for two hours every eight weeks that:

   i)the first visit to be on or about 24 December 2017 for two hours, to be supervised by Mr K Farina or by Mr X to take place at McDonald’s Restaurant, Suburb C; and

   ii)the second visit to be on 17 February 2018 for two hours, to be supervised by staff at Y Contact Centre Suburb Z if that service is available, and in the event Y Contact Centre Suburb Z cannot provide the service, then time shall occur at the McDonald’s Restaurant, Suburb C under the supervision of either Mr K Farina or Mr X; and

   iii)for two hours every eight weeks thereafter, the first two occasions are to occur at Y Contact Centre Suburb Z and thereafter at McDonald’s Restaurant, Suburb C and be supervised by Y Contact Centre Suburb Z or such other professional supervision service or private individual as agreed in writing between the parties.

   d)the father may choose for the child to spend time with him for religious festivals, and, in such circumstances, the time shall be for two hours and if time is spent, the father shall forgo the next ‘eight weekly’ visit;  and

   e)the child’s siblings, the father’s partner and children all be at liberty to join the contact.

4. Unfortunately, issues about the father’s time with the child arose before 17 February 2018, the date on which the child’s second visit with her father after the resolution of the parenting proceedings was to occur.  That visit did not take place.

5. The parents are in dispute about why the child missed out on that opportunity to spend time with her father.

6. The father said he was not willing to have Y Contact Centre supervise the visit after he received correspondence which indicated that:

   a)the child would require “therapeutic contact”; and

   b)he would be permitted only one hour and fifteen minutes with her; and

   c)his partner and her children could not accompany him on the visit.

7. It also transpired that the cost of the “therapeutic contact” proposed by Y Contact Centre – but not by the parents in the terms of the consent Order – was to be $242.00/hour for a two hour session. Whilst the costs of time is to be shared equally between the parents, the father asserted during submissions that he could not afford such an amount.

8. For all of these reasons, the father proposed that the child’s time with him on 17 February 2018 occur at McDonald’s Suburb C under the supervision of either Mr K Farina or Mr X.

9. The mother opposed this suggestion. She said, in essence, that the father had chosen not to proceed with Y Contact Centre (despite both parties signing their Service Agreement) and should not be able to rely on what she regarded as his own default in refusing to comply with the terms of the Y Contact Centre Service Agreement in order to spend time with the child at McDonald’s Suburb C in the company of either Mr K Farina or Mr X.

10. The mother also said that neither of these two agreed supervisors were available on 17 February 2018 to supervise the time between the child and her father in any event.

11. It seems that, when he learned of this asserted fact, the father then proposed that Ms EE Farina and Mr FF Farina (the mother’s ex partner’s parents) supervise the 17 February 2018 visit. The mother rejected this suggestion.

12. This impasse resulted in each parent seeking to return the matter to Court: the father filed an Application for Contravention (on 23 February 2018) and the mother filed an Initiating Application (on 15 February 2018).

13. When these matters first came before me on 1 March 2018, I made an interim order for the child to spend time with her father for two hours on 9 March 2018, with such time to be supervised by Mr X or any other person agreed in writing between the parties.  I also listed the parties’ dispute about whom will supervise the child’s ongoing time with her father for hearing on 27 March 2018. When the matter was not completed that day, it returned again on 27 April 2018.

14. In resolving this dispute, I may make such parenting order as I think proper. [3] In determining what parenting order is proper, I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[4] Further, in deciding whether to make a parenting order and the terms of the same, I must regard the child’s best interests as the paramount consideration.[5]

    [3] s 65D of the Act.

    [4] Section 60B of the Family Law Act 1975 (Cth).

    [5] Sections 60CA and s 65AA of the Family Law Act 1975 (Cth).

15. Whilst the matters to be considered in determining the parenting orders which is in the child’s best interests are as prescribed by s 60CC of the Act, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[6]  Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about the order which is in the child’s best interests; I have considered all of the relevant considerations in arriving at my conclusion about the person by whom the child’s future time with her father will be supervised.

    [6] Banks v Banks (2015) FLC 93-637: whilst a decision about an interim decision, the principle seems equally applicable to final hearings.

The competing proposals

1. By her Initiating Application filed on 15 February 2018, the mother proposed that Clause 9 of the December 2017 Order be varied such that Mr K Farina or Mr X be removed as supervisors and, instead, the child’s time with her father be supervised by “such other professional service or private individual as is agreed in writing between the parties”.

2. However, her ultimate position, as outlined in her affidavit filed 15 March 2018 and at trial, was that the child’s time with her father be supervised by either or both of her parents (Mr X or Ms X); she also proposed that, if Mr X was unavailable, a Mr GG, a counsellor, supervise the visits.[7]

   [7] Affidavit of the mother filed 15 March 2018 at [19].

3. Mr GG has not met the mother, the child or the father.  It seems he was proposed by the mother’s solicitor as someone who could supervise the time between the child and her father.

4. The father does not agree with the proposal for Mr GG to be involved. By the Response filed 7 March 2018, he proposed that the child’s time with him be supervised by his partner, Ms S and Ms X but, if Ms X is unavailable, the visits occur under the supervision of only Ms S. The father also advances that the mother be prohibited from sending any other person to accompany Ms X at the supervised visits.

5. At the conclusion of proceedings, Counsel for the Independent Children’s Lawyer submitted that the father’s partner, Ms S, should supervise the child’s time with her father and that, if she is unavailable, the time should be postponed until she is.

6. Consideration of the competing proposals occurs within the context of those supervised visits which have already occurred. Some relevant details about the same are outlined below.

7. The visit on 24 December 2017 was the first visit after the 6 December 2017 consent Orders were made.

8. Mr X said that this visit was the second occasion on which he had accompanied the child to see her father. He said he was welcomed cordially; Ms S and her two children were present; the father had brought games for the child and the other children to play.  He said the child did play some games and also went to the play area with Ms S’ children.  He stayed inside the private room with the father during this time.

9. From Mr X’s perspective, the child was initially reluctant to respond to her father; further, whilst she participated in a game with him after some encouragement, she remained reticent, particularly when the father tried to get close to her and to take photos. Mr X said he felt the visit ended satisfactorily, although the child was not comfortable at times during it.

10. Ms S said Mr X sat in the chair right next to the child, despite the fact that she and her children were spread out across multiple tables (there being about six tables in the room). When she went to order food for the children, she offered Mr X some food or drink.  He declined her offer.  Ms S said that the child then also declined her offer of food or drink.  Despite this, Ms S bought food for everyone and placed this on the table.

11. Ms S played with her children and the child in the playground outside the McDonald’s premises. She said that, after she climbed to the top of the installation, the child came and sat right next to her and praised her for climbing up; she described the child as happy. She also said she laughed and talked with the child, who appeared relaxed. She described the child telling her that sushi was her favourite food and saying that she was eager to go there next time.  Ms S said she told the child that she would see what she could do. She said they also spoke about the impending birth of the child’s nephew, the fact that her brother was becoming a ‘dad’, her dogs and her holidays.  From Ms S’ perspective, the child was reserved whilst sitting next to Mr X inside the premises but, in contrast, was very relaxed and happy when outside playing in the playground and during their interactions there; she also thought that the child and her daughter (U) bonded.

12. The father said that everyone had a great time at the visit; they (including Mr X on occasion) played a few games and the child, U and T (Ms S’ children) spent about 30 minutes playing together in the playground.

13. From the father’s perspective, the child was more relaxed when she came back from the playground area; he said she was happy to open all her Christmas gifts and was excited about them.

14. Ms S’ perception was that the child was not the same as she had been in the playground when she returned to the room to open her gifts. She described that Mr X remained next to the child whilst she opened her presents: he collected her toys and carried them out of McDonald’s at the end of the visit.

15. I accept Ms S’ evidence about this visit. I think it highly likely that the child was more constrained in her manner and behaviour when in her maternal grandfather’s presence than she was when interacting only with Ms S and her children in the playground outside the room. I also accept Ms S’ evidence about the manner in which she and the child interacted during this visit.

16. The time on 9 March 2018 was to occur between 5.00 pm to 7.00 pm. The mother said the child became very difficult that afternoon: she was highly stressed and argumentative about having to go on the visit; she refused to get dressed, to have her hair done and to come out of her room. When her grandparents arrived to take her to McDonald’s for the visit, she asked her mother to let her stay.

17. Mr and Ms X both accompanied the child on this visit. Mr X still had an internal catheter inserted from a recent admission to hospital and Ms X attended to ensure the child received proper attention as he was not in full health.

18. Mr X said that they arrived at the party room within McDonald’s Suburb C at 5.00 pm and were not greeted. However, the father said he and Ms S welcomed them warmly, but received no response in return.  To the extent that it is necessary to do so, I record my conclusion that I think it highly unlikely that Ms S would behave in a deliberately rude manner toward either Mr or Ms X: after all, she is the person who offered to buy a drink for Ms X and she is the person who invited Ms X to sit next to Mr X in the room with the child, on the basis that Ms X was “family”.[8]

    [8] In fact, according to Ms X, when she sat at a table to the rear of the room, Ms S insisted she move to the chair next to Mr X; when Ms X told her that she did not think she was allowed to do that, Ms S replied: “Please – you are family.”: Affidavit of Ms X filed 15 March 2018 at [5].

19. It is, I think, convenient that I now record that I am persuaded that it is much more likely than not that, during the visits at which either of the Xs have been present, Ms S has done all that she can to be welcoming and to attempt to ensure that the time is as stress-free for the child as possible. Nothing in the evidence persuades me that Ms S has acted otherwise than to support the child; nothing in the evidence persuades me that Ms S is likely to change her approach to supporting the child in her interactions with her father into the future.

20. In returning to the overview of the 9 March visit, I accept that Mr and Ms X sat on either side of the child. Ms X clearly did not think there was any prospect at all that them acting as they did in this respect could have impeded the child’s behaviour or caused her to feel “trapped” between them. I certainly gained the very strong impression that Ms X thought these to be almost ridiculous propositions. I differ in my assessment of the likely impact on the child’s behaviour of sitting between her maternal grandparents; I think it much more likely than not that she is likely to have felt constrained and certainly observed as a result of the manner in which the seating occurred. However, I have no hesitation at all in accepting Ms X’s evidence to the effect that it did not occur to her that there was even a possibility that being seated between her grandparents may have impeded the child’s behaviours.

21. In contrast to Ms X’s view, I consider it much more likely than not that the child would have been left in little doubt that her maternal grandparents were there to maintain a strict oversight over proceedings.  I also think it much more likely than not that the prospect that the child would interact freely with her father, Ms S and Ms S’ children was very much reduced when her maternal grandparents were seated on either side of her; I also think it highly likely that the child would have felt constrained in her interactions with all but her maternal grandparents during the time they were seated on either side of her. That this was not the intention – as Ms X said – does not alter the likely constraining effect of their presence on the child’s capacity to interact with her father and Ms S in an unrestrained and unimpeded manner.

22. It is uncontroversial that Mr and Ms X declined Ms S’ offer to order them tea or coffee when she went to order the meals. Whilst it may well be, as Ms X said, that the child was not sitting beside her when she declined Ms S’ offer, I think it highly unlikely that the child would fail to notice that her grandparents were not joining in the shared consumption of food and drink.   

23. I consider it informative to note Ms X’s description of Ms S’ actions in insisting on paying for her drink: she said she found this disconcerting. I do not join in this; rather, it seemed to me that all that Ms S was likely doing was attempting to extend hospitality and to demonstrate generosity. It would have been so easy for Ms X simply to accept Ms S’ overture with grace: that she chose to describe Ms S’ actions as she did in her affidavit demonstrates to me that it is highly unlikely that Ms X will respond in any way warmly to future friendly overtures from Ms S.

24. The father’s evidence was that Mr X had a notebook with him during this visit and wrote in it. Mr X accepted that he had a notebook or notepad of some kind; he said he made one note in it during the visit (he wrote “keyboard”); whilst he also said that the child was not facing him when he made the note, I think it much more likely than not that it is unlikely she would have failed to notice (in some way) that her grandfather was observing events keenly. I was certainly left with a very strong sense that, for the child, this visit – and all supervised by the Xs together or individually – was an occurrence in which she could not fail to feel observed and reported about; I certainly did not conclude that the visits provided her with the opportunity to interact freely with her father and Ms S.

1. I consider that, taken together, the descriptions given by all who were present support this conclusion: the child refused her father’s offer to join him in playing on a keyboard he had brought with him; she was relatively uncommunicative and avoidant of making eye contact with her father and/or Ms S; she manifested signs of stress (by twisting clothing she held in her hands); her interactions with her father were subdued; she refused to accept his offer of fairy floss which he had made using a machine he brought with him (according to Ms X’s evidence, she tried to encourage the child to try some of the fairy floss so the father “would not be angry with her”[9]); she refused to join in eating the meals which had been purchased and – unlike the previous visit – initially refused to go to the playground area to play with Ms S’ daughter (with whom she had previously played quite happily).[10] 

   [9] Affidavit of Ms X filed 15 March 2018 at [7].

   [10] Although she did enter the playground area with Ms S and her children toward the end of the visit.

2. I consider it highly likely that the child’s interactions with her father and Ms S on this occasion were significantly influenced by the mere presence of her maternal grandparents; their attitudes toward the father are abundantly clear from the contents of their affidavits: by way of example only (but, in my view, a telling example), Mr X’s description of the child’s actions in throwing a paper plane toward a target held by her father in front of his face was that “the child showed a strong determination to hit that target”.[11]

   [11] Affidavit of Mr X filed 15 March 2018 at [10].

3. The view sought to be conveyed by his evidence in this respect was clear: namely, that the child disliked her father so much that she wanted to hit him (rather than the target he was holding or rather than simply trying to ‘win’ a game in which the other children who were present were participating).  He was clear in saying that his interpretation was that the child wanted to hit her father, although he later conceded that he may have read more into the situation than was the case.

4. Mr X’s evidence of his interpretation of the child playing a game which involved throwing paper planes at a target held by the father to facilitate the game is an example of the prism through which the interactions between the child and her father are viewed by members of her maternal family: that is, a negative interpretation seems to be the one which is taken up, with little regard for alternative, equivocal interpretation.

5. A further example may be found in Ms X’s evidence about the child’s interactions and attitudes after she opened the presents her father (and Ms S) had brought her for her birthday: Ms X said (in essence) that, after Ms S passed the child her birthday bags towards the conclusion of the visit, the child opened each bag and gave a slight smile.  However, Ms X also said that, as the child kept looking down at her lap, she believed that the photographs taken of the child with her presents were taken against the child’s wishes.

6. That both of the child’s maternal grandparents view her actions when in her father’s presence as illuminated by these examples provides a further basis for the conclusion that the child is highly unlikely to be appropriately supported in her future time with her father if it continues to occur under the supervision of the maternal grandparents or either of them.  Nothing in the evidence given by either of them suggests that it is likely that there will be any change to the manner in which they would approach any future supervision of the child’s time with her father.

7. I am persuaded that neither of the child’s maternal grandparents have demonstrated the capacity to encourage, enable or support the child in her interactions with her father. Rather, I consider that their very presence constrains the child’s ability to draw as many positives as she can from her limited time with her father. I also consider that, rather than ameliorating the stress on the child at these times, their overwhelmingly critical presence adds to it. This is not something which is beneficial for the child.

8. In contrast to the conclusions I have reached about the impact on the child of her maternal grandparents’ (individual or joint) presence during her time with her father, I consider that Ms S’ presence is something which is more likely than not to support the child in her interactions with her father. In this respect, I note that Mr X remarked about one of the visits that there appeared to be little attempt to relieve the pressure on the child except for the efforts by Ms S and her daughter.  The child’s maternal grandmother did not appear capable of even acknowledging this as a possibility, because her interpretation of the efforts made by Ms S (and her children) to make the interactions pleasurable for the child was that she felt like they had “a scripted role to play”.[12]

   [12] Affidavit of Ms X filed 15 March 2018 at [14].

9. I accept Ms S’ evidence to the effect that she will always be available, or make herself available, to attend the child’s visits with her father; I accept that she is invested in supporting the child’s relationship with her father and I accept that she has approached her role in this task by holding herself back, not forcing herself on the child, allowing the child the time to get to know her and to see that she is always there with her father. I also accept that she is likely to do all that she reasonably can to ensure that the child is comfortable during her time with her father. I accept her evidence to the effect that, if she perceives the child to be uncomfortable, she will let both parents know about this.

10. I accept Ms S is aware that, on occasions, the child’s needs and her father’s wishes may conflict.  I accept that she has thought about how she will deal with such a situation if it arises; I accept that the manner in which she proposes to manage any such situation appeared reasonable and child-focused.

11. I assess Ms S as a forceful enough person to ensure that the father appreciates her views; I also note – and accept – the father’s evidence to the effect that he would respect Ms S’ views.  I accept that when, during a visit in March 2016, she advised him to stand back (and, in essence, let the child come to him rather than overwhelming her), he accepted her position and did as she advised. I accept that the father trusts Ms S and has had the opportunity to observe her parenting of her children and that he has learned from those parenting courses he has done that he sometimes has to let the child come to him.

12. I accept Ms S’ evidence about how she would manage the situation if the child asked to leave during her time with her father. I also accept that it is more likely than not that Ms S would place the child’s needs ahead of those of the father; I also accept that it is more likely than not that she would act protectively toward the child and that she is highly likely to be able to assist the child (and the father) to gain the most from their time together. In addition, I accept as more likely than not that the presence of Ms S’ children (in particular, her daughter) will likely provide further support for the child in interacting with her father in a less constrained manner.

13. I am persuaded that having Ms S supervise the child’s time with her father will maximise the prospects of the child being able to spend the time it has been agreed by her parents, as being in her best interests to spend with him, in as less stressful a manner as possible.

14. In arriving at the conclusion that the child will benefit most from her time with her father if this is supervised by Ms S rather than her maternal grandparents, I  have also taken into account the mother’s evidence to the effect that she wishes the child to have positive moments with her father and that those which have occurred to date were, at least in part, generally the result of Ms S’ actions; Mr X’s evidence to the effect that he has previously told the child (before her time with her father) that it is to her benefit to establish a relationship with her father and that, if there is no relationship with him, he thinks she will suffer distress; Mr X’s evidence that Ms S made efforts towards relieving the pressure on the child at the visit on 9 March 2018 and that, during the three most recent visits, she has been a positive contributor to the same; and Ms X’s evidence that it is important for the child to interact with her father, that it is good for them and that their time together should be made a happy occasion for the child.

15. In my view, the prospects of ensuring that the child has positive moments with her father, that she develops a relationship with him and that their time together is a happy occasion are maximised by having Ms S supervise such time.

16. I do not accept the submission by Counsel for the mother to the effect that having Ms S as the supervisor of the child’s time with her father would likely leave the child with the perception that she is unsupported by those within her mother’s household – the child will clearly be returning to live with her mother at the conclusion of each of her visits with her father.

17. I have determined that it is not in the child’s best interests for her time with her father to be the subject of supervision by Mr GG (or any other professional supervisor however described and possessing whatever qualifications) because such a course would require that the child would again have to meet and engage with such professional. For example, Mr GG’s evidence was that, before he commenced supervision of the child’s time with her father, he would have to have an intake interview with the mother, father and the child and establish a rapport with them and for the child to feel comfortable with him. I accept the submission made by Counsel for the Independent Children’s Lawyer to the effect that such a course would likely be counterproductive for the child and the development of her relationship with her father. I am not persuaded, in the particular circumstances of this case, that embarking on the processes associated with having a “professional” supervise her time with her father is something which is likely to relieve the pressure on the child or to achieve the objectives identified earlier.

18. For the reasons outlined above, I consider that the order set out at the commencement of these Reasons is the order which is in the child’s best interests.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 June 2018.

Associate: 

Date:              22 June 2018