FORD & COTTON

[2014] FCCA 3070

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORD & COTTON [2014] FCCA 3070

Catchwords:
FAMILY LAW – Interim parenting  orders in relation to 15 year old child who does not want to see her father – where the father’s behaviour is of considerable concern to the court – where a psychological report and section 11F do not support the father’s case for time with the child.

Legislation:  
Family Law Act 1975

Applicant: MR FORD

Respondent: MS COTTON

File Number: MLC 8721 of 2013

Judgment of: Judge Small

Hearing date: 24 November 2014

Date of Last Submission: 24 November 2014

Delivered at: Melbourne

Delivered on: 24 November 2014

REPRESENTATION

Counsel for the Applicant: Ms Wald

Solicitors for the Applicant: De Zwart Lawyers

Counsel for the Respondent: Ms Epelboym

Counsel for the Independent Children’s Lawyer: Mr Bult

Solicitors for the Independent Children’s Lawyer: David Stagg Tonkin & Co.

ORDERS

1. The child X born (omitted) 1999 (“the child”) live with the mother.

2. The mother remain in substantial attendance when the child comes into contact with her half bother Y and they not be left alone in the house for long periods.

3. The reasons for this decision shall be transcribed.

4. Pursuant to s. 62G(2) of the Family Law Act 1975 the parties and the child X born (omitted) 1999 (“the child”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 20 October 2015.

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

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)the likely effect on the child if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the child.

6. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

7. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

8. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

9. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

10. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

11. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

12. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

13. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

14. The matter be adjourned to Federal Circuit Court of Australia on 14 December 2015 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).

15. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012.

16. Both the Applicant and the Respondent make, file and serve on each party by no later than 4.00 pm, fourteen (14) days prior to the Final Hearing:

    (a)one affidavit setting out any further evidence in chief; and

    (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

17. The Independent Children’s Lawyer make, file and serve on each other party by no later than 4.00 pm, seven (7) days prior to the Final Hearing:

    (a)one affidavit setting out any further evidence in chief; and

    (b)one affidavit of each witness intended to be relied upon at the Final Hearing.

18. Each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document by no later than 4.00 pm, two (2) days prior to the Final Hearing, including the following:

    (a)a list of the documents to be relied upon;

    (b)a brief chronology;

    (c)an outline of contentions with respect to:

    (i)whether the presumption of equal shared parental responsibility applies (s.61DA),

    (ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

    (iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

    (iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

    (v)any other matters  relevant to the decision; and

    (d)a statement of the precise orders sought.

19. No party shall be entitled to rely on any affidavit material filed after the above deadlines without leave of the Court.

20. No later than 7 days before the Final Hearing each party advise the Court of the documents he/she seeks to rely on at Trial.

21. No later than 2 days prior to the Final Hearing an agreed list of factual issues in dispute be provided to the Court by the parties.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 8721 of 2013

MR FORD

Applicant

And

MS COTTON

Respondent

REASONS FOR JUDGMENT

1. The matter of Ford & Cotton comes before me today for mention in circumstances where Mr Ford, the applicant father, has not seen the subject child, who is X, who was born on (omitted) 1999 and who is now just 15 years of age, since 2012. There are multiple allegations and counter-allegations of violence in this matter.  The mother says that the father is a volatile man, that he’s abusive, that he is violent.

2. There is some evidence that he has sent X a text message saying he hopes that she gets killed today or that she gets hit by a bus.  He has apparently turned up at her netball game and accosted her.  There is even some evidence that he has hacked one of her social media accounts and posted abusive matters about her on Facebook.  The mother also says that the father has a drug history and that he has been to court for that, but there’s no further evidence in relation to that before me.

3. The evidence of the father’s violence is very disturbing to the court.  Not only the emotional violence of perhaps having said things (and I make very clear that this is an interim proceeding and I cannot make findings of fact).  One of the things that the section 11F counsellor says very clearly and which struck me, when reading that memorandum, was that while the father insisted that he had only ever hit the mother once, the child, at the age of 14 and a half, told the section 11F counsellor that she could remember her father sitting atop her mother and punching her several times.

4. I point out that exposing a child to family violence is an act of child abuse in itself under the Act. When you look at the definition of child abuse under the Family Law Act, it includes exposing a child to family violence. If the court were to find that the kind of violence that the mother, or the father for that matter, alleges is true, then that would certainly amount to child abuse of X herself.

5. X has made it very clear both to the section 11F counsellor and to the independent children’s lawyer, that she does not wish to see her father at this time in her life.

6. She does have some positive memories of him, that’s quite clear in what she told the section 11F counsellor.  The section 11F counsellor also looked at and made very clear at the end of her memorandum that she had held several, not competing but various views as to why X might not want to see her father at this time in her life.  The conclusion of the section 11F counsellor is that the father’s actions were the primary cause of that, notwithstanding that X has certainly come under the influence of her mother and been influenced by her mother’s expressed fear of the father, or her being aligned with her mother. Notwithstanding that, Dr P, who conducted the section 11F counselling, was quite clear that her view was that the father’s actions were the primary cause of X’s feelings.

7. The father provides a psychological assessment and report from his treating psychologist, Mr R, that report being attached to an affidavit sworn on 10 November 2014.  Mr R says some positive things about the father’s engagement with the therapeutic process, but he also says that the father had decided at that point to walk away from these proceedings, having had enough, to put it in the vernacular, and feeling the frustration of not having seen X for so long and having to continue on with these proceedings, had decided not to do that.

8. Nevertheless, the father has come today and he has come with counsel and it is, as the independent children’s lawyer has pointed out, his right as the applicant in these proceedings, to pursue these proceedings through to their conclusion, and I take no negative inference from what he said to Mr R in terms of that.  What Mr R’s report does indicate is a certain lack of insight on the father’s part, into his past behaviour, to the impact of that on both his former partner and his daughter, but it does hold out some hope for the future.

9. The other thing that holds out some hope for the future is the fact that X does remember some positive things about her father. However, she is 15 and I am bound under section 60CC, subsection (3)(a) to take the views of a child into account when I’m making a parenting order and to give those views such weight as I think is appropriate, having consideration for her age, her maturity and such things.

10. I think I would need a lot more positive indication of the possibility of a positive relationship with X and her father, to order any time between X and her father, at this time.  That is not to say that the door is closed, locked and the key has been thrown away.  I think there is a possibility in the future that X might change her mind.  She’s 15 but at the same time, she’s only 15 and it’s possible that she may change her mind.

11. I think the father is to be commended for saying, through counsel and also it must be said, to Mr R, that he doesn’t want to force X into doing things that she doesn’t want to do at this time in her life.  That shows some sense of child-focused approach, which as I said, he is to be commended for. 

12. The real issue before me today is where do we go from here?  The father is not seeking today any time with X at this stage, but he wishes to continue the proceedings and he says that he believes, and he has said this clearly both to his psychologist and to the section 11F reporter that he believes that X’s views have been shaped by her mother, and indeed, the section 11F reporter thinks that’s true.  But she also thinks that X has her own memories of times with her father and that they are the primary cause of her wishes.

13. The report of the psychologist does say that Mr Ford has some acceptance, has accepted some responsibility for his role in the marriage breakdown and it does say, and this to my mind one of the other positive things, that it does say that he has engaged fully and participated in the ongoing therapy with Mr R.  What the father wants today is a family report and a final hearing.  He understands that while therapy with X or for X might be of benefit, it would be difficult to force her to go, at her age, to therapy against her will and he does take her views and the independent children’s lawyer’s views of that on board. Again, that is greatly to his credit.

14. The problem, of course, with what can be called alienation issues, and I think it’s fairly clear that at this stage, X is quite alienated from her father and doesn’t want to see her dad. I place no blame on the mother for that at this stage.  It’s simply the way it is.  But it is true that the longer that goes on for, the less likely it is that she will want to see him.  However, I think that has less weight at this time in her life than it would if she was six or seven or even ten or twelve.

15. I think the older she gets now, the more likely she is to have her own views and that those might not be so influenced by her mother, but by her own memory and her own experience.  The mother opposes the production of a family report before the final hearing.  She says that the court has enough information to finalise this matter without a family report.  She says that X has very good reasons for not wanting to see her father and she pointed out some of the things that the father is said to have said, or alleged to have said to X and that X has been very upset by those things and that a family report isn’t going to change her view of that.

16. It is true that it is certainly not going to change her memories and her experience of what has happened.  In her submissions on behalf of the mother, Ms Epelboym pointed out that the report of Mr R says that the father actually accepts that it may not be in X’s best interests to continue these proceedings.  But nevertheless, as I’ve said, I take no negative inference from the fact that he does intend to proceed with these proceedings.  That is his right.  He is still X’s father and that is his right.

17. However, the mother says that a family report could be systems abuse.  I think that the fact that she has seen the section 11F counsellor and is now being asked to see the family reporter is hardly systems abuse and I do intend to make an order that a family report be provided.  The independent children’s lawyer too supports the provision of a family report if for no other reason that the court needs the most up to date and best evidence before a trial.  A family report will give us an idea of what the almost 16-year-old X thinks, rather than the 14 and a half-year-old X who provided those views at the last report assessment.

18. There is another issue in relation to X, which the father brings up, which is that X’s brother, Y, has been charged with various drug offences and indeed, the mother acknowledges that her son Y has a problem with ice and has had some problem with that for some time.  The section 11F counsellor says that X is unaware of that or at least was at the time that she saw her, which as she says, indicates that she hasn’t been exposed to that drug use or drug abuse.

19. However, as X gets older, she’s going to become more aware of the possibility of such things and be able to join dots together when looking at her brother’s behaviour.  It is said that she and her brother have a close relationship and I have no doubt that that’s true.  The independent children’s lawyer and the father, on the basis of the fact that the brother has now been arrested and faces charges, criminal charges, in relation to drug abuse, both seek an order that the mother be in substantial attendance when X and the brother would otherwise be alone in the house.

20. As I have said, this is an interim hearing. I can’t make any findings of fact and I must therefore act cautiously. Indeed, the Act requires me to act cautiously and to take the need to protect a child from harm ahead of any other consideration in section 60CC. When I consider section 60CC, both the primary considerations in subsection (2) and the additional considerations in subsection (3), I won’t go through all 16 of those now, we would be here for the rest of the afternoon, but I am very concerned to protect X.

21. I am concerned to protect her from both any possible risk that she might be under from her father, and from any possible risk that she might be under from her brother.  In those circumstances, I will make an order that the mother be in substantial attendance as proposed by the father and the independent children’s lawyer, when X and the brother, Y, would otherwise be home on their own.  Of course, substantial attendance doesn’t mean she has to be there every second.  It means that she has to be there most of the time and that she certainly shouldn’t leave X and Y alone for long periods, and I would have thought not longer than a couple of hours at a time.

22. So in all of those circumstances, when I look at the matters set out in section 60CC, when I look at the nature of the relationship between the parents and the children, and it must be said that at this stage, X has very little relationship with her father, not having seen him for over two years. When I look at the need to protect her from violence, when I look at the need to consider each parent’s capacity to take care of X’s emotional needs and the evidence, such that it is, or the allegations, such that they are, are very clear, that she is at risk from her father in her emotional well-being and as I said, they are only allegations at this stage, but if I were to find that even some of them were true at trial, I would have to consider that X was at very great risk.

23. So in all of those circumstances, I will order a family report.  I will make an order that:

    the mother remain in substantial attendance when X comes into contact with her half-brother, Y, and that they not be left alone in the house for  long periods.

24. I will make, as I said, the order for the family report.  And otherwise, I’m going to set the matter down for trial with the usual trial directions. 

    RECORDED     :   NOT TRANSCRIBED

1. I will put you down for trial on 14 December next year for two days.  Can I say, as I always do, please read the trial directions carefully, for your instructor, Ms Wald.  I take the time limits that are set down in those trial directions very seriously and not only the trial directions but the directions in those.  For instance, I seek that the parties tell me what documents they seek to rely on, at least seven days before the trial.  That means that I don’t have to read reams of documents that aren’t relevant or that the parties don’t need me to read and that’s always appreciated, as you can imagine.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  20 January 2015