Garner and Hunt

[2012] FamCA 447

FAMILY COURT OF AUSTRALIA

GARNER & HUNT [2012] FamCA 447

FAMILY LAW – CHILDREN – whether the child should spend time with the father – whether the father’s time with the child should be suspended – whether the mother is facilitating contact – where there is a high degree of conflict between the parents – where the child’s reluctance to see her father is based on her attachment to her mother – where the child is not forced to spend time with the father – where the parents need to take a more child focused approach – where time with the father is suspended

Family Law Act 1975 (Cth) s 121

APPLICANT: Ms Garner

RESPONDENT: Mr Hunt

FILE NUMBER: BRC 2063 of 2009

DATE DELIVERED: 14 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Mitchell Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Dodd
Jones McCarthy Lawyers

Orders

1. All previous orders providing for the child H, born … February 2002, to spend time with her father are suspended until further order.

IT IS AGAIN NOTED that the father agrees, without admission as to any prior inappropriate behaviour, not to attend at the child’s school or at that school’s after school hours care service, namely “Program W” Town B, until such time as Ms C considers it appropriate and advises the two parents in writing that she so considers it.

1. The child shall, until further order, spend all such time with the father as may be agreed by the parents in consultation with Ms C.

1. The provisions of s 121 of the Family Law Act shall not apply insofar as they prevent Ms C being provided with:

(i)Reasons for Judgment of Federal Magistrate Demack dated 2 June 2011;

(ii)Reasons for Judgment of Principal Registrar Filippello dated 6 December 2011;

(iii)Orders of Justice Forrest dated 20 April 2012;

(iv)Family Reports of Mr S dated 25 June 2010 and 10 May 2012;

(v)Orders of Justice Forrest dated today and Reasons for Judgment today;

and the parties are at liberty to supply Ms C as soon as it is reasonably practicable with all of those documents.

1. The matter is adjourned for further hearing at 10.00 am on 6 August 2012 in the Duty List before his Honour Justice Forrest.

1. If it is at all possible, Ms C is to provide an interim report for the assistance of the Court prior to 6 August 2012, the cost of same to be shared equally by the parties.

1. The father’s Contravention Application filed on 5 March 2012 is also adjourned for mention at 10.00 am on 6 August 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garner & Hunt 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 BRISBANE

FILE NUMBER: BRC 2063 of 2009

Ms Garner

Applicant

And

Mr Hunt

Respondent

REASONS FOR JUDGMENT

1. Before me for determination today is an application by the mother to review the orders of Principal Registrar Filippello that were made on 6 December 2011 in parenting proceedings between the two parties.  They are the mother and father of H, (“the child”), born in February 2002, who is now just over 10 years of age. 

2. These two parents are in what can only be described as high long-term conflict with each other.  That conflict, as I understand it, relates to property division that is yet to be finally resolved between the two of them, consequent upon the breakdown of their marriage and is ongoing in respect of their parenting of the child. 

3. The history of the proceedings is long and, to some degree, complex.  Suffice to say at this point, the matter went to trial before Demack FM in the Federal Magistrates Court here in Brisbane in or around the middle of last year.  It went to trial in respect of property issues and parenting issues.  In those proceedings that culminated in that trial and orders made by Demack FM there was an Independent Children’s Lawyer, Mr Dooley, from the Gold Coast.

4. Mr Dooley had engaged Mr S, consultant social worker, to do family reports into the dynamics of the family and Mr S saw the parties and the children.  There was another child who has now reached the age of 18.  Mr S had reported prior to those proceedings.  The proceedings culminated in orders that were made by Demack FM on 2 June 2011. 

5. The orders provided for equal shared parental responsibility between the two parents in respect of major long term issues in relation to the children.  They provided for the children and, relevantly, for the child to live with the mother.  They provided for the child to spend time with the father, most significantly, from after school on Thursdays to before school on Monday each alternate week during school term and then on a similar basis during school holidays.  They also provided for restraints against the father in respect of consuming alcohol and any “illicit substance” during any period when the child was to be in his care or in any 12 hour period preceding that time.

6. My recollection of the evidence that I read on the last occasion that the matter was before me, namely 20 April 2012, is that soon after the orders made by Demack FM, the parents came into further conflict in respect of the parenting arrangements and the implementation of Demack FM’s orders.  As I recall, the mother brought an application back before Demack FM seeking a review or a change of Demack FM’s final orders in respect of the parenting of the child.  That was unsuccessful.

7. The mother then commenced proceedings in this Court and those proceedings included an application for orders to be made on an interim basis changing the parenting orders made by Demack FM.  That application was heard by Principal Registrar Filippello, who made orders on 6 December 2011.  Principal Registrar Filippello’s orders effectively dismissed the mother’s application for an interim change to Demack FM’s parenting orders in respect of the child and left those orders in place, namely leaving orders in place that required the child to spend time with her father from Thursday after school until Monday before school each second week of school term and on a similar basis during school holidays. 

8. The mother then filed an application to review Principal Registrar Filippello’s decision and that came before me for hearing on 20 April 2012.  Before me that day, the mother relied upon numerous affidavits, several indeed.  Those were all by persons close to her, either family members or friends and neighbours who deposed to their observations in respect of the child the child’s behaviour before and after the time she spends with her father as well as issues associated therewith such as the father attending at the school that the child goes to on days that she otherwise is not in his care.

9. Essentially, the mother’s position is that the child does not want to go to spend time with her father.  Indeed, the mother is not the first parent to come before this Court and say simply, “my child does not want to go and spend time with the other parent and I can’t make her go”.  That is not an assertion that is strange to this jurisdiction.  In this case though, the mother asserts that the 10 year old child’s strength of feeling is quite significant.  She says that the child begins acting out the day before she is to spend time with her father and that her behaviour becomes extraordinarily concerning.

10. The father on the day when the matter was last before me, 20 April 2012, maintained, not surprisingly, the position that the child enjoys her time when she is with him and that, effectively, her mother is not giving her emotional permission to go to spend time with him and to enjoy that time in his company.  His position was that really it is the mother who is causing the problems, undermining the relationship between him and the child.

11. On that day, 20 April, the parties informed the Court that they agreed to attending upon Ms C, who I believe is an experienced and qualified social worker and family therapist.  I say “I believe” because I cannot remember exactly whether she is a social worker or a psychologist, but I know she is a family therapist on the Gold Coast who has, to my knowledge, years of experience in working with parties and families associated with parenting disputes that bring them before the family law courts.

12. They agreed that they would attend upon Ms C for family therapy as soon as such family therapy could be arranged and that the child would be made available by the mother for the purposes of that family therapy as and when directed by Ms C.  They agreed that day that the family therapy would be reportable and that they would share the costs.  The father also indicated to the Court that day, without any admission as to any prior inappropriate behaviour, that he would not attend at the child’s school until such time as Ms C considered that his attendance was appropriate.

13. The parties also agreed that day, after some discussion between the bench and the bar, that they would attend upon Mr S as soon as that could be arranged.  Indeed, it was arranged for 24 April 2012 and they attended upon him, the child attending with her mother.  As I read Mr S’s report, the child’s older brother who is now a young adult, D, attended with his mother that day as well and had some small input into the preparation Mr S’s report.

14. Mr S prepared a report, to his credit in a very short space of time, following on from that interview process.  That is before me today as Exhibit 1 in these proceedings.  I, of course, adjourned the matter that day for further hearing today with the expectation that I would get some assistance in determining this very difficult parenting dispute from Mr S.  I also ordered that day, though it was not by consent, that until further order, the child was to spend time with her father on each of the weekends that fell between that last Court date and this one. 

15. Indeed, on the first of those weekends, my order provided that the child was to spend the day with her father on both Saturday and again on Sunday of that weekend.  My order provided that she was to spend the day with her father on the Saturday of each of the three weekends that fell from that time until now.  Today, when the matter comes back before me, both parties filed by leave a further affidavit having been given that opportunity on the last occasion it was before me. 

16. The mother has filed an affidavit that she swore herself.  It is an extensive affidavit notwithstanding the period of time from the last occasion that it was before the Court until now.  Extensive, I say, because it is about nine and a half pages of evidence.  In that, though, the mother goes into a great deal of detail about each single occasion that the child was to spend with her father pursuant to my previous orders and in that detail she gives a very vivid description of the child’s distress before and on the occasion of each time that she was to go and spend time with her father.

17. Indeed, on one occasion Saturday 5 May, which was to be the fourth day that she was to spend with her father, the mother deposes to the fact that she could not even get the child out of the car at the McDonalds’ car park that day to hand over to her grandparents and, ultimately, when struggling to physically get the child out of the car, she inflicted some sort of minor muscular injury on the child’s neck or back.  The child was complaining to her of pain and the mother decided that it was best to drive the child from the car park about one hour after hand over was to occur and take her to a doctor nearby.  The doctor apparently diagnosed a muscular strain to the trapezium muscle near one of her spinal vertebrae. 

18. The father also filed an affidavit by leave today in which he again points out, as he has always, that the child, from his perspective, enjoys the time that she spends with him.  Interestingly, and it has been pointed out, of course, by Mr McGregor, counsel for the mother, the father does not say anything in his affidavit that really goes to what he might have observed of the child’s behaviour on the occasion that he was at McDonalds at the time of the handover. 

19. Of course, I appreciate that he cannot comment at all about the nature of the behaviour that the child displays on the night before she is scheduled to go visit him and on the morning before she arrives for her visits with him but he continues to maintain that she enjoys the time with him and that it is really the mother’s responsibility to get her there and to reduce the stress that is placed on the child surrounding such handovers and therefore, ultimately, the emotional response of the child. 

20. Mr S in his report, again I must say, not surprisingly, opines that one of the most fundamental reasons for the child’s reactions is the significantly conflicted relationship that has remained in place between the parents since their separation.  He has reported that despite his denial of bitterness towards the mother, the father is clearly extremely bitter and that his denials of such bitterness are merely superficial. 

21. He has pointed out in his report, in a way that provides me with what I have to describe as really the only independent, objective perspective of how the child might be reacting before she goes to her father, that when he proposed to the child during his single interview with her in the absence of her mother that he interview the child in the presence of her father, she strenuously refused.  He observed her to become extremely upset at the thought of being interviewed by Mr S in the presence of her father.  Mr S ultimately determined, thereby, that it was not possible to facilitate any such session at all, and noted at the conclusion of his paragraph about this subject matter that the child indicated to him she would prefer not to spend any time with her father.

22. Interestingly, Mr Dodd, solicitor, who is appearing as advocate today for the father, pointed out that notwithstanding that fact, it was the case that when Mr S was interviewing the mother that the child was in the care of or left in the care of the father and his mother and that Mr S has noted in his report that the child appeared relaxed in that setting.

23. Nevertheless, it was clear that when Mr S proposed interviewing her with her father, she was far from relaxed and was very upset about the prospect, such that Mr S determined that he would not press the issue.

24. Mr S, of course, points out the obvious, that it is a difficult case.  He says the key issue is trying to work out the basis for the child’s reactions and the disruption to the arrangements that this is causing.

25. Mr S pointed out that there are a number of fundamental reasons for, in his opinion, the child’s reactions and it seems from what he gleaned from his time with the child and his conversations with the child, that it is not so much an overwhelming fear that the child has for her father that is making her reluctant to go and spend time with her father, but the way in which the child feels about leaving her mother.

26. This opinion, at first glance, gives some support to the submissions that are made by Mr Dodd on behalf of the father, that the child’s reluctance may really lie more at the feet of how her mother deals with her, than as a consequence of some problem that she has in her father’s care.

27. Mr S, in his ultimate statement of views and opinions, says that reducing or ceasing the child’s time with her father would be consistent with her wishes, but that it would not resolve the problem.  At the same time, he says, the current situation is an emotionally untenable one over the long term, as it is too stressful for her.

28. He goes on to say that to reduce the child’s stress temporarily reducing her time with her father may help, but he goes on to quickly say it would, nevertheless, be only a temporary salve.

29. Not surprisingly, again, he says, some appropriate modelling by the parents of civility and regard for one another and a modicum of respect offered to each as the child’s parent, would go a long way towards supporting the child’s emotional development and feelings of stability as she approaches her adolescence.  His concluding paragraph is this:

    The solution lies with the parents.  Counselling for both to address these issues may net a minor improvement.  Independent counselling for [the child] could help her to build a buffer and make sense of what is occurring.  Reducing her time with her father, temporarily, is an option for consideration.

30. Mr S was not prepared to make a definitive recommendation on this point.

31. In this particular case, the evidence that the mother has put before me today in itself tells a terribly sad and distressing tale of the emotional reaction of this little girl to going and spending time with her father over the last month.  Acknowledging immediately that the father’s position is that it is the mother who is causing this behaviour, I am, though, not in a position to determine that the behaviour as intense as it is described to be or is not, in fact, happening or being displayed by this child.

32. I am particularly conscious of – and I must say, persuaded by – the submission made by Mr McGregor for the mother, that what is presented to the court in evidence that, at this point, cannot be rejected is, and I use Mr S’s words:

    A horrendous state of affairs that is happening.

33. I quickly also adopt that which Mr McGregor said immediately thereafter.  I am, indeed, also acutely conscious of the submission made on behalf of the father and that which fell from Mr S in his report that, ultimately, it may be determined that the child’s acute and intense response that is causing her so much emotional trauma may, indeed, be a direct response to her mother’s conduct and her mother’s attitudes and her mother’s behaviour, rather than any negative experience that she is having in her father’s care.

34. That being said though, my central concern in these proceedings is the wellbeing of this child.  Often matters come before this Court for determination, where it becomes apparent that the parents, for a whole host of reasons, are not both able to put aside their own feelings towards each other and to place the wellbeing of their child or children at the foremost of their thoughts.  Therefore, it is left for the court to have to try to find a path through the middle, based on what it considers to be in the child’s best interests.

35. Clearly, what the judges of this court and the other family law court decide, on a day-to-day basis, is in the best interests of the particular children or child in each case that they are deciding, will never be received by both parents, and/or others supporting them, or the community at large, as being always correct and best for the children.  But the decision falls on the judges of these courts when parents, themselves, cannot agree on what is in the best interests of their children.  The consideration has to guide the Court when it is making decisions that are tough like this one is.

36. I am satisfied at this point in time that the child should not be forced to go to spend time with her father for the time being.  I am satisfied, whatever the reason, the child’s emotional response to going to spend time with her father is such that forcing her to go now, by Court order, is only going to perpetuate, on a short term basis, what can only be described as abuse of this child.

37. I appreciate and understand that the father is not going to be happy, but I have determined that I will suspend the order or all orders that provide for the child to spend time with her father until further order.  I do this particularly being conscious of the fact that the first appointment with Ms C is scheduled for this Friday, 18 May 2012.  I do this with the expectation and sincere hope that Ms C, at least, if not the two parents themselves, can bring a modicum of serious child focus to the arrangements that these two parents make between themselves in respect of the time that their daughter, the child, is to spend with each of them.

1. I do this knowing that Ms C’s therapeutic time spent with this family is reportable and that I am only going to adjourn the matter for a relatively short period of months before the matter comes back for further consideration.  I do it knowing that the father will be disappointed, but hoping that he understands that it is his daughter’s best interests that prevail and will always continue to prevail, whilst this Court is asked to make the decisions that he and his former wife cannot make between themselves.  So for all those reasons I make the following orders.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 May 2012.

Associate: 

Date:  14 June 2012