Fisher & Davis

[2015] FamCA 1180

FAMILY COURT OF AUSTRALIA

FISHER & DAVIS AND ANOR [2015] FamCA 1180

FAMILY LAW – CHILDREN – Interim parenting – application by grandparents where parents’ marriage is intact.

Family Law Act 1975 (Cth)

APPLICANT: Mr Fisher

RESPONDENTS: Mr Davis and Ms Fisher

FILE NUMBER: PAC 3871 of 2015

DATE DELIVERED: 22 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 23 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Samsom SC

SOLICITOR FOR THE APPLICANT: Watts McCray Solicitors

COUNSEL FOR THE RESPONDENTS: Mr Williams

SOLICITOR FOR THE RESPONDENTS: Barkus Doolan

Orders By Consent (Amended pursuant to the Slip Rule 17.02)

1. That Dr W is appointed as the single expert witness in this matter to prepare a Chapter 15 expert report for the Court’s assistance.

2. That the matters which the expert shall consider and report upon are:

   (a)Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the expert thinks are relevant to the weight it should give to the children’s views;

   (b)The nature of the relationship of the children with:

   (i)each of the children’s parents and each of the children’s grandparents

   (c)The likely effect on the children if the orders sought by each of the parties are made, including an assessment of the nature of the children’s present and prospective;

   (d)The capacity of:

   (i)each of the children’s parents; and

   (ii)each of the grandparents;

   to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity;

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the family reporter thinks are relevant;

   (f)Any other fact or circumstances that in the opinion of the Family Reporter is relevant.

1. The parties shall do all things necessary to facilitate the preparation of the expert report, including attending upon the expert appointed, and arranging for the children to attend upon the expert.

2. Each party shall pay one half of the costs of the preparation of the expert report, and bear half of any such additional costs of the expert to give evidence at Court if so required.

Pending further Order

1. That the parties attend confidential family therapy with Mr L (“the therapist”) as soon as practicable and the Court notes that the applicant grandfather shall facilitate the maternal grandmother’s attendance upon the therapist.

2. That the respondents make the children available to the therapist for the purposes of assessment and thereafter for therapy as appropriate in the opinion of the therapist.

3. That the applicant and respondents each pay one half of the costs associated with the attendance upon the therapist.

4. That the parties have leave to provide to the therapist any affidavit filed in the proceedings that in the opinion of the therapist may assist in his assessment or provision of therapy to the family.

5. That each of the parties be and are hereby restrained from issuing subpoenas directed to the therapist or from requesting a report from the therapist.

6. That the matter be listed before a Registrar for further directions including placement in my list for interim hearing when such hearing is ready to proceed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fisher & Davis and Anor 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 PARRAMATTA

FILE NUMBER:   PAC 3871 of 2015

Mr Fisher

Applicant

And

Mr Davis and Ms Fisher

Respondents

REASONS FOR JUDGMENT

Introduction

1. In parenting proceedings relating to K who is almost 11 and N, who is eight, (“the children”) a grandfather seeks orders concerning communication and spending time with the children and other associated orders. In his interim application with which this judgement is concerned, virtually identical orders were originally sought. The application is made in circumstances where the relationship between the grandparents (“the grandparents”) and the children’s parents has broken down and the children who previously shared a relationship with their grandparents have not seen them for almost a year.

2. The parents of the children (“the parents”) oppose the orders sought and seek to restrain the grandparents from having any time with or communicating with the children or attending any events associated with the children except on the invitation of the parents.  Originally these orders were sought on a final and interim basis.  It is the general position of the children’s parents, that their relationship with the children will be undermined if the orders sought by the grandfather are made.

3. On the day the proceedings were listed for interim hearing some agreement was reached.  The parties agreed to orders for the appointment of an expert witness in the proceedings.  They also agreed that a family therapist become involved to assist the various family members with their relationship difficulties. It is also agreed that the therapy be confidential and that the applicant grandfather will facilitate the attendance of the grandmother upon the therapist. An appropriate therapist, Mr L, was identified and agreed to by both parties, but thereafter no further agreement was able to be reached. It became apparent that Mr L would not be available to conduct an initial assessment until at least February 2016. In these circumstances, the applicant grandfather was keen for the therapy to proceed in any event and for the children to participate in such therapy as soon as it could be arranged. The applicant grandfather proposes orders that the parties attend upon Mr L (or other therapist at the same practice) and that the parents cause the children to attend that therapy with a view to reintroducing the children to their grandparents. He also proposes that such therapy occur as soon as practicable, that the cost of the therapy be shared between the parties and that the matter be listed for an interim hearing or mention in late December 2015.

4. The children’s parents propose an order that the parties attend confidential family therapy with Mr L (and no other therapist) and that the children attend if such attendance is recommended by the therapist after interviews have been conducted with the parties. The parents also propose that the parties be granted leave to provide to the therapist the documents filed and relied upon in the proceedings, and any correspondence passing between the parties since the date of their affidavits.

Background

1. The applicant who is aged 74 is the maternal grandfather of the children. His wife, the maternal grandmother is 67.  His daughter, Ms Fisher, who is 44 and her husband Mr Davis, who is 50, are the parents of K who is 11 and N, who is eight. The parents’ marriage is intact and the family live together in Sydney.

2. I understand it to be the case that the parties do not dispute that until around February 2015 the children shared a close relationship with their grandparents and the grandparents had been closely involved in the children’s care from time to time, including on occasions when the parents travelled overseas. The children spoke to their grandparents regularly on the telephone, frequently visited them and regularly stayed with them either in the grandparents’ Sydney apartment but more regularly at the grandparents’ home in Queensland. The grandparents also attended at the children’s school and extracurricular activities when they were in Sydney.  The children last spent holiday time with their grandparents in Queensland in January 2015. They also spent some time together in the last weekend in January 2015 at the grandparents’ Sydney home.

3. It also appears to be common ground that for some time the parents have been experiencing some difficulties in their own relationship. It also appears to be the case that the grandfather at least has had some discussions with the parents in relation to their marital difficulties.

4. The children have spent no other time with the grandparents since the first week in February 2015 and communication between them no longer occurs. The relationship between the grandparents and parents has completely broken down and they no longer communicate directly between themselves.

5. The parties’ perception of the reasons for the breakdown in the relationship between the grandparents and parents is the central matter of dispute between them. Both, however, agree that the estrangement between the children and their grandparents is inextricably bound up with the dispute between the adults.

6. A large volume of documentation, including emails written directly between the parties and through their legal representatives and text messages is attached to the affidavit filed by the mother. It suffices to say that the mother’s perception is that the relationship between herself and her husband on the one hand, and her parents on the other, has been deteriorating for a number of years for a number of reasons. She is particularly concerned that the grandparents, contrary to her express views, may have permitted the children to come into contact with the mother’s sister, Ms S (the children’s maternal aunt) from whom the mother is estranged. The mother describes her sister Ms S as having “a history of serious psychiatric illness, including multiple admissions, voluntary and involuntary, to psychiatric hospitals, as well as violence, criminality and drug and alcohol abuse.”

7. The mother also contends that the grandfather’s mental state and judgment has deteriorated and that he has been increasingly aggressive and controlling in his relationship with his grandchildren.  It is her case that the grandmother has supported the grandfather in wanting what she describes as an “inappropriate relationship” with the children. The mother contends that the event that immediately gave rise to the estrangement from around February 2015 was the grandparents’ reaction to being informed by the children’s father that the children would not be spending holiday time with the grandparents in Easter 2015. She says that legal proceedings were threatened by the grandfather, that she and the children’s father did all that they could to circumvent this occurring but her father was insistent on the following this course.

8. The grandfather’s perception of the breakdown in his relationship with the parents is quite different.  He says that after the children last spent holiday time with him and their maternal grandmother in January, it was anticipated that the children would spend more holiday time with them at Easter and at times at their Sydney home. It is his position that the parents’ actions were completely unexpected. He says that on 9 February 2015, when the children’s parents informed he and his wife that they had engaged a solicitor and invited the grandparents to deal with him, the grandparents regarded this as the sudden disruption of the relationship between the grandparents and the children.

9. The applicant’s general contention about the circumstances of the breakdown in his relationship with his daughter and her husband, is that for the past several years he has been concerned about the mother’s use of alcohol and associated behaviour and the impact upon the children of their home environment.  He claims that throughout the last two years he has attempted to persuade the parents to protect the children from “their damaging conduct” and that the parents’ reaction to his attempts in this regard is the immediate cause of the “isolation of the children” from their grandparents.

10. The applicant grandfather paints a picture of the relationship between he and his wife and their daughter being problematic and turbulent at times but that the grandparent/grandchild relationship nonetheless developed very satisfactorily until the parents changed their attitude from around February 2015. 

11. Each of the parties has sworn detailed lengthy affidavits which deal with their respective positions about the genesis of the relationship breakdown between the grandparents and parents.  Each of the parties also relies upon text and email communications between themselves or their legal representatives.  The general observation can be made that the documents relied upon by each of the parties appear to support their respective positions.

The Application

1. Initially the applicant grandfather was seeking on an interim basis that orders be made permitting the children to have direct private communication with their grandparents and spend defined time with them including one weekend per month and block periods in the school holidays.  The response of the parents to this application was that orders be made restraining the applicant from spending time or communicating with the children or attending any of the children’s school activities or communicating with the parents other than through the parents’ legal representatives.

2. However, significant ground was covered at the first court event in the interim proceedings.  It is to the credit to the parties that they were able to achieve agreement that a family therapist be appointed to assist them, particularly given the extremely acrimonious environment which has sadly developed for this family since February this year.  The parties also reached agreement about the appointment of a Chapter XV expert. 

3. Ultimately, the compass of the application was such that the only issues for me to determine are:

   a)Whether the family therapy should be conducted by any available therapist at the practice agreed to by the parents or that only Mr L be engaged (who is currently not available to commence such therapy).

   b)Whether the children attend the therapy or that their attendance only be required if the therapist recommends it after interviewing the parties.

   c)Whether the parties have leave to provide the therapist with all of the documents filed or relied upon in the proceedings and any correspondence passing between the parties since that date.

The Therapist

1. So far as the choice of therapist is concerned, it is submitted on behalf of the applicant that as his health is poor and given the history of attempted negotiations between the parties throughout the year, he is keen to commence the therapy as soon as practicable.  It is his position that as the practise has been agreed as appropriate between the parties, there is no reason why Mr L would be the only suitable therapist to undertake the therapy especially as he is currently not available.

2. It is submitted on behalf of the parents, that if family therapy is to occur, it ought to happen with a person that the parties have confidence in, and that they are only confident with Mr L.

3. Although there are circumstances in which it is appropriate for parties to be required to attend upon a specifically nominated therapist even though one or both parties does not consent to that particular therapist, in this matter both parties have expressed their confidence in Mr L.  In circumstances where the perception of each of the parties is so diametrically opposed, it would seem that an appropriate starting point is to engage a therapist with whom both parties will have confidence and feel comfortable.  It is not the case that the applicant grandfather specifically opposes the appointment of Mr L.  Indeed initially the parties agreed to the appointment of Mr L and the issue of an alternative therapist at the same practice only arose when it became apparent that Mr L was not immediately available.

4. Although the grandfather is elderly and the attempted negotiations have been protracted almost over a year, in my view it could not be said that the best interest of the children require the immediate appointment of a therapist.  In circumstances where the parties have agreed upon an appropriate therapist and where the process of therapy if it is to occur, is likely to be protracted given the extremely fractured state of the relationships, it is not imperative in my view that the therapy commence immediately.

The children’s participation in therapy

1. The issue of whether the children should be included in the therapy from the outset, or that assessment of the parties occur first, is in my view, a matter that falls within the expertise of the therapist, that is a clinical matter, rather than a legal one.  There is no evidence upon which I could base a decision that it would be in the children’s best interests for the order proposed by either of the parties to be made.  In my view it is appropriate to make an order that simply requires the parties to attend upon the therapist initially for his assessment and thereafter in accordance with his recommendations and for the parents to make the children available for assessment and therapy as regarded as appropriate in the opinion of the therapist.

Leave to provide documents to the therapist

1. I am similarly of the view that it is a matter for the therapist, in the exercise of his judgment, as to whether he would be assisted by reading or having available to him the affidavits filed in these proceedings and further correspondence between the parties.  A large volume of documents has already been filed and it is likely that there will be further communication in the interim.  I am of the view that if leave is granted for the parties to provide this material to the therapist, he may feel it necessary to consider that material prior to commencing his assessment.  This will undoubtedly delay that assessment and add to the cost to the parties.  I am unable to determine whether the material would necessarily be regarded as relevant by the therapist.  In my view it would be more appropriate to provide leave to the parties to provide such documents to the therapist in the event that he regards that as appropriate for the purposes assessment or therapy.

Discussion

1. Although the parties each filed an outline of case for the interim proceedings, which referred to the factors to which the court has regard in parenting matters, the parties subsequently reached agreement that the next appropriate step to be taken in the proceedings is the appointment of a therapist.  Only very specific matters are to be determined by the court, and in my view it is not necessary to consider the “best interest considerations” for the purposes of determining this application.

2. For the reasons given, I make some of the orders sought by the applicant and some sought by the respondent in their respective proposed Minutes of Order.  I have also made an additional order with respect of the future conduct of the matter. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 December 2015.

Associate: 

Date:  22 December 2015