Gantley and Gantley

[2013] FamCA 1071

FAMILY COURT OF AUSTRALIA

GANTLEY & GANTLEY [2013] FamCA 1071

FAMILY LAW – PARENTING – Mother to have parental responsibility – enforceable order entitling the father to spend time with or to communicate with the children.

APPLICANT: Ms Gantley

RESPONDENT: Mr Gantley

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Dorian

FILE NUMBER: MLC 4013 of 2011

DATE DELIVERED: 16 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gantley in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Gantley in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr N Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Schetzer Constantinou

Orders

IT IS ORDERED THAT:

1.The wife have sole parental responsibility for the children B born … 2000, C born … 2003, D born … 2006 and E born … 2009.

2.The children live with the wife.

3.For the avoidance of doubt, there is no enforceable order entitling the father to spend time with or to communicate with the children.

4.For the avoidance of doubt, the father is not authorised to attend the children’s school or to take the children away from the children’s school.

5.The independent children’s lawyer be discharged with effect from 30 October 2013.

6.The reasons for judgment this day be transcribed and when settled copies be made available to the parties.

7.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

8.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

AND IT IS NOTED that the mother contended that there would be more harm than benefit in providing the children with an opportunity to have the father farewell them and/or hear his explanation as to why he does not seek to spend time with the children (or any of them) and the independent children’s lawyer supported the mother’s position in this regard.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gantley & Gantley 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 MELBOURNE

FILE NUMBER: MLC 4013 of 2011

Ms Gantley

Applicant

And

Mr Gantley

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me as an interim hearing in relation to the four children, B, 12 years of age, C, nine years of age, D, seven years old, and E, who is three years old.  The matter was before me yesterday and put over to today for the purpose of the independent children’s lawyer through her counsel, Mr Eidelson, conferring with the family’s long-term therapist, Ms G.  Additionally, the Court and the parties have had the benefit of hearing the evidence given orally and cross-examination by Mr F, family consultant, who has prepared both a parent and children’s assessment in July 2011 and a very extensive family report more recently, published on 10 July 2013.

2. The history of the matter is rehearsed in a number of documents and I won’t repeat it here because it’s probably more important, and I am certainly satisfied in the children’s best interests, that the parties hear why there are no orders today rather than hear a history which they have themselves lived for some time.  It’s suffice to say that with the exception of the father taking B to the football last Friday evening, he hasn’t seen the children in any natural or face-to-face time, other than for the purpose of a Family Court assessment, for about 15 months.  Today the ambit of the dispute appears not to be very wide.

3. The independent children’s lawyer proposes with the imprimatur of the family’s therapist and the support of the family consultant a regime of face-to-face time with the children and the father whereby B sees the father each alternate Friday, C sees the father each alternate Friday, both of those children go from 5 pm to 9 pm on the Fridays that they see the father and then on the Sunday after the father sees C, he would see D and E from 12.00 noon to 5.00 pm.  To explain myself better, B is each alternate week, C is each alternate week and on the same weekend as C sees the father on Friday, he sees D and E. 

4. That would go for two months, then on 20 October 2013, the time would be the same for all children, they would attend together and it would be each alternate Sunday from 9.00 am to 5.00 pm to commence on 20 October, and then each alternate Friday evening, which would fall in the other week, from 5.00 pm to 7.30 pm, and there was some time of four hours on Christmas Eve.  The parties would continue to attend upon Ms G, as would the children.  There would be orders, injunctions to sign to prevent denigration of the parties in front of the children, and all changeovers would occur at Bunnings at Suburb J.

5. The mother initially was opposed to C attending at the time by herself.  Today, after hearing the evidence of Mr Evans, she said that she didn’t oppose it, but thought it more advisable that C attend with D and E, but she wouldn’t actually oppose C attending by herself.  Otherwise, the mother embraces the proposal of the independent children’s lawyer.  This matter was last before me – apart from yesterday – a week ago, when the mother had a somewhat different position, as I perceive it, and my assessment is that she has come quite a long way in that one week. 

6. The parties are not represented.  My ability to observe them is enhanced by there being no filter of legal representation.  It appears to me that the mother’s agreement or reconciliation to the orders sought by the independent children’s lawyer is genuine.  The father’s proposal was yesterday that he see each child once every six weeks, although when he saw D and E, they would be together.  Today, he says that he has moved somewhat and he will now see the children once a month.  He would see B on a four-weekly cycle.

7. He would see B on a Friday from 5.30 pm to 9 pm, C two weeks after that from 5.30 pm to 9 pm and on the Sunday of that week, he would see D and E from 1 pm to 5 pm.  Then it starts again, so the children see him for three and a half to four hours once a month. 

8. I’ve had the benefit of the evidence from Mr Evans.  He says that developmentally the children need to see their father, that – I think it’s fair to say – they are grieving that they’re not seeing their father, but that developmentally, seeing the father any less frequently than once a fortnight is not good for D and E, and that is their developmental needs are to see him at least fortnightly, if not weekly.

9. The father won’t do that.  In those circumstances, I won’t make any orders for the father to see the children at all.  I have discussed with Mr Evans how that outcome should be explained to the children that the father will have no contact with them, as it seems to me that, having been to see Mr Evans – and doubtless the older children, knowing that their mother has been in court for two consecutive days – they probably deserve some explanation of their parents’ conduct.  After Mr Evans had concluded giving his evidence, the father wanted to make a statement.  He said that the reason he had come to this decision today, which was not to see the children any more frequently than once a month, represented the “darkest day of his life”. 

10. For the second time today, he made his decision referable to what he perceives to be the mother’s hostile conduct towards him and said that until it gets better, he couldn’t possibly see the children any more frequently than he was proposing.  What he quite ignores is that he’s not giving her a chance to demonstrate that there’s any change in conduct at all.  He is for all intents and purposes, it appears, taking refuge in his resentment of the mother as a means of not doing something he doesn’t want to do anyway.  Far from making me feel much sympathy for the father, my sympathy is directed wholly towards the children and how they will cope with his limitations.

11. The matters which I have taken into account are specified in the legislation.  Essentially, they have as the paramount consideration the best interests of the children.  All of the factors and additional considerations to which I would have regard at a final hearing, I need to have regard to at an interim hearing to the extent that they are relevant.  I am satisfied that the children want to see their father.  I’m satisfied on the evidence of Mr Evans that they need to see their father, but they need to see their father in accordance with their stages of development, not in accordance with what he can bring himself to do at any time.

12. I take into account the capacity of each of the parents to in fact parent the children.  It seems that the children have suffered from some ill-advised conduct by the mother since separation so that they have aligned themselves with her to a certain extent and been affected by her personal views and inclinations about the father.  It should have been clear to the parties yesterday from the evidence of Mr Evans that that is very bad for the children and if it continues will have permanent effects on how they grow and develop.  Still, however, Mr Evans is satisfied that they desperately want to see their father.

13. I take into account the effect of no orders being made for the children to see their father and the fact that that represents no change in circumstances because they haven’t essentially seen him for the last 15 months.  What’s really unfortunate is that they might reasonably have thought that they would get to see him, and they were put through a process of assessment by Mr Evans of being brought to court and disrupted from school only to end up not seeing their father at all.  The father says – and appeared to be upset when he said so – that it “kills me” to make a decision like this.  It’s difficult to understand. 

14. Either he is lacking in fortitude and indulging himself in the extreme or he hasn’t come to grips with what the expert evidence has been.  I couldn’t go so far as to say that he is insincere or disingenuous, but I view his actions to be misjudged and quite contrary to the best interests of the children.  For instance, the father criticised the wife for not agreeing to a particular drop-off and changeover point for the children, when in fact the wife had openly and readily agreed to same.  It’s unfortunate for the children, but I can’t see any other way around it other than to make no order for time. 

15. The father did at some point describe his own conduct in relation to the children and that of the wife as being pathetic.  I put him on notice that I will not permit him to address the wife in those terms again in my court.  I was going to make an order for an arrangement for the children to be brought in to see Mr Evans at 9.30 am on 30 August 2013 for the purpose of having explained to them by the father that he won’t be seeing them in the future.  Mr Evans has indicated that he would support and facilitate that explanation by the father at that time.  In the event that the father doesn’t propose to keep that arrangement, he could have advised everyone in the proceedings in writing by not later than 12 noon on 27 August 2013 so it is received by them by that date.  However, the maternal grandfather addressed the Court and his submissions convinced me that it is preferable for the children to hear the outcome from the mother.  No-one made submissions against that.

16. These orders conclude the proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 August 2013.

Associate:  Ms Janet Durham

Date:  5 February 2014.