Giltson and Basfield

[2013] FamCA 713

FAMILY COURT OF AUSTRALIA

GILTSON & BASFIELD [2013] FamCA 713

FAMILY LAW - CHILDREN – Where the matter came before the Court for final hearing – Where the parties agreed that the proceedings be stood over part-heard – Where interim orders were made which provide for the child to spend time with the father at a supervised contact centre with a review and an updated report to be prepared by the single expert in the proceedings – Where the mother made an application to travel with the child overseas during the Christmas school holiday period – Where the mother’s application to travel overseas with the child is refused as the time of travel would occur in the middle of the supervised contact regime scheduled to take place.

Family Law Act 1975 (Cth)

APPLICANT: Mr Giltson

RESPONDENT: Ms Basfield

INDEPENDENT CHILDREN’S LAWYER: Susan Warda

FILE NUMBER: SYC 3063 of 2012

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 30 August 2013

REPRESENTATION

THE APPLICANT IN PERSON: Mr Giltson

COUNSEL FOR THE RESPONDENT: Mr North

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER: Ms Spain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coleman Greig Lawyers

Orders

1. That this matter is fixed, for further hearing before myself, for four (4) days commencing at 10am on Monday 31 March 2014 and I note that the matter is part-heard.

2. That this matter is listed for a directions hearing on Friday 21 February 2014 at 9.30am.

3. That, pending further order, orders are made in accordance with paragraphs 1, 2, 3, 4 and 6 of the Minute of Order Proposed by the Independent Children’s Lawyer, as set out herein:

   1.That the child, [E] born on … 2006 (“the child”) shall spend time with the father as follows:

   a.Each alternate Sunday for 2 hours at the [B] Contact Centre in [Suburb A]; and

   b.That the father’s time in Order 1 (a & b) hereof shall extend to 3 hours if the father has spent 3 consecutive periods of time with the child and only if the Director of the [B] Contact Centre approves availability to extend the father’s time to 3 hours.

   2.That forthwith upon the making of these orders the parties do all acts and things and sign all documents as are necessary and attend the first available intake assessment at the [B] Contact Centre.

   3.That the father be permitted to take his mother, [Ms Giltson], to the Contact Centre when he spends time with the child.

   4.That upon the child having spent time with the father in accordance with Order 1 hereof, each of the parties and the child shall attend appointments as scheduled by the Independent Children’s Lawyer with Dr [S] for the purpose of Dr [S] providing an updated report reviewing the progress of the father’s time with the child.

   6.The father shall be restrained from consuming alcohol and/or illicit drugs in a 48 hour period leading up to the father spending time with [the child] and during periods [the child] is spending time with the father.

4. That orders are made in accordance with paragraphs 5, 6, 7(b) to (d) inclusive, 11, 12 and 13 of the Orders Proposed by the Mother, as set out herein:

   5.That upon [E, (“the child)] having spent time with the father for a period of 3 months there be a formal review of what time the child should spend with the father moving forward and for this purpose:

   a.The mother shall forthwith do all acts and things to cause [the child] to undertake therapeutic counselling with [Mr C] from [Practice D] ("[the child's] therapist") and attend such counselling sessions as and when required by [the child’s] therapist from time to time;

   b.The mother's solicitors shall forthwith provide to [the child’s] therapist a copy of the following:

   i.Dr [S's] initial report;

   ii.Dr [F's] report;

   iii.the affidavit of [Ms I];

   iv.the joint report prepared by Dr [S] and Dr [F];

   v.the final orders and any reasons for judgment that may be published;

   vi.a copy of these orders.

   c.The counselling referred to in paragraph 5(a) shall be fully reportable and [the child’s] therapist shall provide to both the mother and father in writing each month a report summarising [the child’s] process;

   d.To the extent so required by [the child’s] therapist both the mother and father will participate in such counselling sessions so required by [the child’s] therapist from time to time;

   e.To assist in the preparation of the report, [the child’s] therapist shall, if he considers prudent, observe generally changeover and the interaction between the child and the father.

   6.That upon [the child] having spent time with the father for a period of 3 months [the child’s] therapist shall prepare a report addressing the following matters:

   a.[The child’s] progress;

   b.Make recommendations as to whether there should be (if any) a change to the time the father is to spend with [the child] pursuant to these orders; and

   c.if there is to be such change to arrangements and the orders varied, what those changes should be and why.

   7.Pending further order the father shall:

   a.(Omitted).

   b.within 24 hours of receipt of a direction from the mother and/or her solicitor via email and/or text message attend upon a certified testing laboratory and submit to supervised urine analysis in accordance with AS/NZS 4308 standard;

   c.within 7 days from the date of these orders and on or before 15 January 2014, the father attend upon a medical practitioner nominated by the mother and submit to a hair follicle drug test and the sample to be taken from the pubic area and the costs of such test to be paid by the mother;

   d.do all things necessary to cause and permit:

   i.the sample thereby contained be tested for all drugs and including specifically but not limited to cocaine, opiates, amphetamines, cannabis, benzodiazipines, oxazapam, oxycodone;

   ii.the results of the testing of each sample to be provided to the solicitor for the mother and the mother;

   provided that the father shall not be required to undertake more than 2 such tests in any 1 month period.

   11.In the event that the mother and/or father fails, refuses or neglects to sign any such document to give effect to the preceding order that a Registrar of the Sydney Registry of the Family Court of Australia shall sign such document.

   12.That within 21 days of the date of these orders the father provide to the mother's solicitors and the Independent Children's Lawyer:

   a.A copy of the father's most current lease;

   b.All applications made by the father to lease/rent residential accommodation in the period 1 January 2013 to date;

   c.A copy of any contract of employment entered into by the father in the period 1 July 2012 to date;

   d.All records including but not limited to all work schedules, offers of employment and correspondence in relation to any current employment and/or future employment in the period 1 July 2012 to date;

   e.All documents and records relating to the receipt by the father of a Centrelink benefit;

   f.All documents including travel itineraries, invoices, receipts in respect of any travel undertaken by the father either interstate or out of the Commonwealth of Australia in the period 1 July 2012 to date; 

   g.All communications including but not limited to emails, letters, and/or SMS text messages between the father and/or any person on the father's behalf (including but not limited to a solicitor by the name of Adam) and [Company G] and/or a representative on their behalf in respect of all matters concerning the father purported termination of employment at [Company G];

   h.All communications including but not limited to emails, letters, and/or SMS text messages between the father and/or any person on the father's behalf and any solicitor and/or counsel (including but not limited to a solicitor by the name of Adam) in respect of negotiations and/or discussions with [Company G] concerning your purported termination together with all documents and records including files notes and advices received by you in respect of matters concerning your purposed termination of employment at [Company G];

   i.All communications including but not limited to emails, letter and/or SMS text messages between the father and/or any person on the father's behalf and [Company H] concerning possible employment opportunities at [Company J] and/or any other employment in Sydney in the period 1 May 2013 to date;

   j.The father's application for Legal Aid.

   13.The father provide to the solicitors for the mother and the Independent Children's Lawyer all documents as referred to in the preceding paragraph for the period 28 October 2013 and 14 days prior to the next Court hearing.

5. That pursuant to Order 5(b) above, all expert reports provided to the child’s therapist Mr C, are to remain in his possession and control and shall not be copied nor shown to any other person(s) without further leave of this Court.

6. That, in the event of any difficulties, leave is granted to the parties and the Independent Children’s Lawyer to re-list the matter upon giving seventy-two (72) hours written notice.

7. That leave is granted to the parties and the Independent Children’s Lawyer to issue up to ten (10) subpoena each without further leave of the Court.  Such subpoena are to be made returnable and inspected prior to the first day of the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Giltson & Basfield 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 SYDNEY

FILE NUMBER: SYC 3063 of 2012

Mr Giltson

Applicant

And

Ms Basfield

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. The parties in this matter are agreed that the appropriate course to follow is for these proceedings to be stood over part-heard until early next year and for orders to be made that would see the child of the parties spend time with her father every fortnight at a contact centre with a review and an updated report to be prepared by Dr S late this year or early next year.

3. Generally, orders to put that in place have been agreed between the parties and the Independent Children’s Lawyer. 

4. There are three areas in which there are significant disagreements.  The mother seeks an order that in order to facilitate the child sending time with her father Mr C from Practice D be engaged to provide such therapeutic counselling with the child as he sees fit.  That such counselling shall be reported, that such counselling may include the mother and the father as required by Mr C and he shall then prepare a report for the benefit of the court.

5. The father and the Independent Children’s Lawyer oppose this order essentially on the basis that it will seem to the child as though spending time with her father is such an event as would require her to receive counselling which would reinforce or create negative feelings towards such contact.  There is some force in that proposition.

6. The mother submits that it would be desirable for the child to have counselling for three reasons.

7. The first is to assist her to cope with the change to her routine and time spent with the father whom she has not seen for some two years save at the interview with Dr S.  It is the least of the mother’s three concerns.  Dr S’s view seems to be more robust and Dr S notes that it was her opinion that after some initial difficulties and reluctance the child seemed to get along with her father at the interview.

8. The second reason is that, as the mother acknowledges, she has until recently implacably opposed the child spending any time with the father and indeed until yesterday her position was that it was appropriate for the court to make an order preventing the father from having any contact with the child.  The mother now accepts that it is appropriate for orders of the kind that will be made today to be made but she acknowledges the difficulties she will have in complying with those orders.  It is to be remembered that orders were made by this Court in September last year for the child to spend time with her father at a contact centre and the mother has taken no steps at all to put those orders into effect.

9. The mother submits that that having Mr C in place as a counsellor for the child, if counselling indeed is required, will enable her to feel more comfortable and this will assist with her compliance with the orders.

10. The third reason is that not only will the child have to cope with seeing her father but the child is going to have to cope with seeing her mother coping with the child seeing the father.

11. There is evidence available which if accepted ultimately suggests that there is force in that proposition for example the mother gives evidence of what she describes as “an adverse reaction to seeing the independent children’s lawyer”.  Whilst there might well be doubt about what the child was told by the Independent Children’s Lawyer and I interpolate that I admitted those passages into evidence only on the basis they were not evidence of the truth of those comments.  What is quite clear is that the mother believes that the child had a significantly adverse reaction to seeing the Independent Children’s Lawyer.  The mother acknowledges there may be a similar reaction to the child spending time with her father.  On the material before me, so far, that does not seem an unreasonable proposition for the mother to put forward.

Conclusion.

1. The issue then is to weigh these competing considerations.  The child has been taken by her mother to at least one and possibly two counsellors, psychologists or psychiatrists.  In Feb 2011 the child was taken to a psychiatrist on two occasions.  Even if there was more than one occasion, those consultations were some time ago and relatively limited in number.  Seeing Mr C at this time is not likely to unduly to expose the child to health care professionals.  Weighing then the issue as to the negative impact of the child on seeing a counsellor and the positive impact on the child seeing a counsellor it seems to me, on balance, the child’s best interests are served by having available to her a counsellor, should she need it.

2. Critically, it seems to me that this will help enable the mother to cope with and comply with the orders and also assist the child to the extent she needs it to cope with and deal with her mother’s difficulties.

3. Accordingly, there will be orders for the appointment of Mr C.

4. The second issue was whether orders should be made permitting the child to be removed from Australia in January 2014 so that the mother, her current husband and their new child can visit the new paternal grandparents.  Ordinarily some orders and constraints would be put in place to ensure the child’s return, that is something that would not necessarily cause a difficulty.  Unfortunately, in the present case that time will be right in the middle of the new supervised contact regime with the father and it would be undesirable for it to be unsettled by such a break during that time.  I also take into account the fact that the mother has taken no step to comply with orders for contact made in September last year.

5. Accordingly, the orders permitted the child to travel for the holiday will not be made.

6. The mother seeks orders for drug testing of the father.  He does not object to most of them although he asserts they are, as is apparent from his evidence, unnecessary.  He does, however, object to a hair follicle drug on the basis that his hair may contain substances from for example, safety hats or other safety gear worn by co-workers in the past or by being exposed to smoke from other people smoking drugs at musical events.

7. I do not know if such contamination is possible or significant.  The father is free to adduce such evidence in relation to the drug tests as he sees fit and such expert evidence as to the reliability of them and whether such contaminations, as he describes, is likely.

8. The court would be assisted by such tests and the orders sought by the mother for the drug testing will be made.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 August 2013.

Associate:

Date: 13 September 2013