Gibbs and Gibbs (No.2)

[2016] FCCA 2193

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBBS & GIBBS (No.2) [2016] FCCA 2193

Catchwords:
FAMILY LAW – Parenting – matter listed for final hearing – mother unrepresented – adjournment refused – mother leaves the Court without participating in the hearing – father seeking final orders that two young children live with him – consideration of non-compliance with statutory obligations together with best interests of children – interim orders made and hearing adjourned part heard.

Legislation:

Family Law Act 1975

Cases cited:
Re F: Litigants in Person Guidelines(2001) FLC93-072

Applicant: MR GIBBS

Respondent: MS GIBBS

File Number: LNC 239 of 2013

Judgment of: Judge McGuire

Hearing date: 10 August 2016

Date of Last Submission: 10 August 2016

Delivered at: Launceston

Delivered on: 10 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Briffa

Solicitors for the Applicant: Legal Aid Commission of Tasmania

The Respondent appeared in person between 10.00 a.m. and 10.50 a.m.

Counsel for the Independent Children’s Lawyer: Mr Murray

Solicitors for the Independent Children’s Lawyer: Murray & Associates

ORDERS 

1. That the trial in this matter be adjourned part-heard for further hearing in the Federal Circuit Court at Launceston on 31 January 2017 at 10.00 a.m. 

2. That there will be an order that the parties make, file and serve any further updating affidavits on which they intend to rely not later than 12 noon on 24 January 2017. 

ORDERS BY CONSENT

1. That there be Orders by Consent as between the father and the Independent Children’s Lawyer and undefended the mother in the terms of an aide memoire handed to the Court this day as to paragraphs 1, 2, 3, 4, 5, 6 (as amended), 9 and 10.  This document is exhibited to the Court file marked “A”.

2. That within five (5) working days of the date of this Order MR GIBBS (“the father”) and MS GIBBS (“the mother”) contact the (omitted) Children's Contact Centre and do all such necessary acts and things required by the Centre to enable handovers at the Centre of the two (2) children X born the (omitted) 2007 and Y born the (omitted) 2011 (“the children”)for the purposes of the father spending regular time with the two said children and for them to be returned to the mother at the conclusion of such times.

3. That commencing on the first Sunday the said Contact Centre is available for handovers and until the commencement of the Tasmanian third term school holidays the father spend time with the children between 12 noon and 4:00pm every second Sunday or at such other times as may be nominated by the Contact Centre from time to time.

4. That the father spend time with the two said children from 4:00pm Wednesday the 29^th September 2016 until 4:00pm Saturday the 1^st October 2016 or such other times as nominated by the said Contact Centre.

5. That commencing Friday the 14^th October 2016 and until further Order the father spend time with the children every second weekend from 5:00pm Friday until 4:00pm the following Sunday or such other times on those days as nominated by the said Contact Centre from time to time.

6. That until further Order all handovers be at the (omitted) Children's Contact Centre and both parties shall comply with any directions from the Contact Centre from time to time. 

7. That in the event the mother does not comply with any of the above Orders then this matter be listed for directions and/or further or alternate Orders and/or any application for a Recovery Order at the earliest available date upon receipt of a written request to the Registry by the Independent Children’s Lawyer.

8. That the final hearing of the matter be adjourned part-heard for further hearing on 31 January 2017 at 10.00 am.

9. That the parties file any further updating Affidavits upon which they intend to rely not later than 12.00 noon on 24 January 2017.

10. That in the particular circumstances of this case the Court directs the Independent Children’s Lawyer to explain these Orders to the children in person and the Court requests consideration of an extension of the Independent’s Children’s Lawyers grant of aid accordingly.

11. That pursuant to Order 9 hereof the mother is directed to make the children available to speak with the Independent Children’s Lawyer as requested by the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Gibbs & Gibbs (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 239 of 2013

MR GIBBS

Applicant

And

MS GIBBS

Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

1. This matter was listed for trial this day and involves two young children, X, born (omitted) 2007, so he is just about to turn nine years of age and Y, born (omitted) 2011, who is just four years of age.  The mother appeared today in person. The court has the assistance of an Independent Children’s Lawyer, Mr Murray, and the father, Mr Gibbs, appears represented by Mr Briffa. 

2. Prior to the commencement of the hearing, I heard an oral application by the mother for an adjournment.  That application was refused and I gave separate reasons for refusing that application which I have directed to be taken out and placed on the court file.  After taking some trouble to advise the mother, pursuant to Re F:  (Litigants in Person)[1], of the procedure in the court and provide the mother with a copy of the relevant sections of the Family Law Act, together with a notepad and pen, the mother indicated by her demeanour and her comments, that she was disinclined to participate in the proceedings.

   [1] Re F: Litigants in Person Guidelines(2001) FLC93-072

3. She repeated on a number of occasions that she wanted the assistance of a solicitor and, for the record, and despite my being reluctant to repeat myself, this matter has been before the court since 14 May 2013. It has had some 27 court events.  The mother has possession of the two children, she effectively refuses to comply with court orders that in the interim had the children seeing the father on a supervised basis.  She has habitually refused to provide the children to the father in any sense with one or two limited exceptions.  She has had no less than three lawyers assisting her during the three plus years of this application being on foot.

4. She had not provided a response in the three plus years that these proceedings have been on foot until my first intervention in this matter a few weeks ago.  My predecessor had made an order for a family report and she had refused to attend for the interviews for the family report and the mother had assistance of a solicitor as recently as approximately two weeks ago and did not dispute the fact that she had received the advice from two or three previous solicitors.

5. In all of those circumstances the application for an adjournment was refused.  The trial commenced.  The applicant father went to the witness box to give his evidence.  The mother refused to cross‑examine him, all the time interjecting that she required a solicitor to assist her and the cross‑examination of the father proceeded through Mr Murray, counsel for the Independent Children’s Lawyer.  She then determined to leave the courtroom and did not return.

6. At the end of the father's evidence, which was effectively the case for the father, some discussions took place between the bench and counsel in respect of the father's position which, on the face of his application and when the trial commenced, was an application that these two children live with him.  Material was read into evidence from a clinical psychologist, a Ms S, who had dealings with the the parents and the children in 2014 and had provided a comprehensive report, together with updated material filed last week.

7. The mother had filed an affidavit and that was read into evidence and is properly before me, as are the father's three affidavits.  The difficulty that confronted the court on the face of the father’s application, unchallenged as it is from the mother, is that he proposed the two young children who he had enjoyed the most minimal contact with and who live in an environment with their mother hostile to him – he proposed that they should live with him.  The concern for the court is the effect on the children in the sense that they in all likelihood might resent or react negatively to such an order and create some difficulty for the father in his parenting of these children. 

8. In light of a file that has been continuing for three years and three months, with blatant disregard of the court process by the mother despite, every indulgence given to her and for to metaphorically thumb her nose at the process then to be allowed to continue in the process would create a dangerous precedent. Nevertheless, as explained to the father and his counsel and supported by the Independent Children’s Lawyer, the marrying of this being a court governed by a statute and the implication that it provides a strict guideline towards a result together Independent Children’s Lawyer with an ultimate duty of the court to attend to children’s best interests is sometimes a contrary intellectual process. This is one of those rare occasions. Nevertheless, a court should be cautious not to appear to in any way sanction a parent who holds possession of children yet refuses to participate in the part VII Family Law Act procedure. To permit such to occur threatens, in my opinion, threatens the very integrity of the Family Law Act.

9. It has eventuated after standing the matter down that there are effectively consent orders between the father and the Independent Children’s Lawyer, obviously absent the mother, whereby in the interim there will be orders for these children to spend time with their father.  The mother lives in a town, (omitted), some two hours travel from Launceston.  The father lives in (omitted).  The travelling distance is over two hours.  To further compound this mother’s culpability, I am told that she unilaterally relocated the two children from Launceston to (omitted) during the course of these proceedings.  I am not told why there were no consequent interlocutory or recovery proceedings?  There are now some transport difficulties and as I have said, the actual relationship between the father and the children has been tenuous in the extreme.

10. The mother in her material makes various allegations, including an allegation that the older child may have been improperly abused or sexually abused by the paternal grandfather.  Frankly, I find no merit whatsoever in that allegation.  It is not corroborated by any contemporaneous complaint so far as I understand.  There is no supportive evidence.  In my view, it is a malicious and opportunistic effort by this mother who, I should say, in the reports from Ms S, the clinical psychologist is suggestive as being someone prone to alienating these children from their father.  I place no weight whatsoever on the mother’s allegation in that form or within that context. 

11. The result of these consent orders is that there will be interim orders.  It is something that I only do reluctantly but in this case I think necessary whereby the children will have unconditional time with their father commencing with day times and then evolving into some holiday time, including overnight time and then each second weekend.  It remains to be seen whether the mother will comply with these orders. 

12. I have adjourned the trial part-heard although all of the evidence that was available was before me.  However, in making interim orders, I am of the view that the trial should be adjourned part-heard to 31 January 2017.  That should give this interim arrangement time to develop to hopefully its logical successful conclusion and will allow the children to again become comfortable and familiar with their father and his home environment. 

13. It remains to be seen, as I have said, whether the mother complies with these orders.  If past behaviour is the best indicator of future behaviour then I must have some doubts as to that but she should, if inclined to read these reasons, be under no misapprehension that as her non-compliance with court orders continues then relatively the options available to this court in respect of the children become less.  And that may well be the ultimate situation but the matter lies in the hands of the mother. 

14. In all of the circumstances, I am satisfied that the proposed interim orders are in the best interests of X and Y and there will be orders accordingly.  I will direct that the transcript of these short reasons be taken out and placed on the court file.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 29 August 2016