Gipps and Tynan

[2014] FCCA 2512

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIPPS & TYNAN [2014] FCCA 2512

Catchwords:
FAMILY LAW – Parenting proceedings – application to adjourn final hearing.

Legislation:  

Family Law Act 1975

Applicant: MR GIPPS

Respondent: MS TYNAN

File Number: MLC 10172 of 2013

Judgment of: Judge Jones

Hearing date: 20 October 2014

Date of Last Submission: 20 October 2014

Delivered at: Melbourne

Delivered on: 20 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Barbayannis

Solicitors for the Applicant: Barbayannis Lawyers

Counsel for the Respondent: Self Represented

Solicitors for the Respondent: Self Represented

ORDERS

1. Pursuant to section 68L(2) of the Family Law Act 1975 the children X born (omitted) 2000 and Y born (omitted) 2002 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange the separate representation.

2. Upon appointment the Independent Children’s Lawyer shall file a Notice of Address for Service.

3. Within 48 hours of notification of appointment of an Independent Children’s Lawyer the solicitors for the parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

4. Paragraph 2 of the orders of 12 December 2013 is hereby discharged and in lieu thereof the children of the marriage X born (omitted) 2000 and Y born (omitted) 2002 (“the children”) spend time and communicate with the Husband as follows:

   (a)Each Sunday from 12.00pm (midday) until 5.00pm commencing 26 October 2014 and continuing each  alternate week thereafter; and

   (b)At such times that may be agreed between the parties in writing.

5. Subject to the recommendations of Ms M the parties and the children attend upon Ms L as directed by her with the children to attend on no less than one occasion each 2 weeks for the next eight weeks commencing in the week of 20 October 2014 with the cost of the children’s attendance upon Ms L to be paid in equal shares by the parents.

6. Subject to the recommendations of Ms L, the husband and wife shall attend upon Ms L independently of the children on no less than four occasions over the next eight weeks commencing in the week 20 October 2014 with the parties to be responsible for the payment of their own costs associated with their independent attendance upon Ms L.

7. The parties and the children’s attendance upon Ms L is for the purpose of therapeutic counselling and in this regards, the parties shall do all things necessary to direct Ms L to prepare a report regarding the progress of the counselling and any recommendations regarding the children’s time with the husband moving forward. The cost of the report shall be paid in equal shares by the parties.

8. Within 7 days from the date of these orders the Husband’s lawyers shall forward a copy of the Family Report of Ms M dated 26 September 2014 together with a copy of these orders.

9. For the purpose of changeover pursuant to these orders, changeovers shall take place at McDonald's (omitted) (corner of (omitted) roads).

10. The wife shall facilitate the children contacting and communicating with the husband at any time they express a wish to do so.

11. The mother within 7 days of this order is to file and serve an affidavit deposing to whether the children’s passports are valid or have expired and whether she has possession or control of them.

12. The mother and the father are hereby restrained from discussing these proceeding with the children or allowing the children to see, read or discuss any documents in relation to these proceedings.

13. The proceeding is listed for Mention on 19 December 2014 at 9.30am.

AND THE COURT NOTES:

A.On the adjourned date the Husband will be seeking to significantly progress the children’s time with him to include time overnight, time during the school holidays and on special occasions including Christmas.

B.The parties shall request that Ms L release her report by no later than 15 December 2014.

C.Pursuant to s.65DA(2), the particulars of 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 Attachment A hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10172 of 2013

MR GIPPS

Applicant

And

MS TYNAN

Respondent

REASONS FOR JUDGMENT

(ex tempore revised from transcript)

1. This matter was set down for a final hearing today in relation to parenting arrangements for two children, one X born (omitted) 2000 and one Y born (omitted) 2002. The mother is Ms Tynan and the father is Mr Gipps.  In preparation for the final hearing, the Court ordered a Family Report by Ms M which is dated 26 September 2014.

2. Ms M’s recommendations were or her evaluation was that it was too premature for the Court to proceed to final hearing and I am going to read her evaluation on transcript but, before I do, I note that there are two matters I need to decide.  One, is whether this should be dealt with by way of an interim order and the father presses for that and I will go to his orders shortly or as a final hearing and the mother presses for that and I will deal with her orders shortly. Ms M gave oral evidence in relation to the reasons for her opinion that proceeding to final hearing would be premature.

3. I have to say that there is no dispute or on the – I should say I am required by reason of the Family Law Act1975 and by reference to the decision in Goode & Goode, a Full Court of the Family Court of Australia, to consider what are the best interests of the children.  It is evident that there has occurred a dysfunction in the relationship between the children and the father. It is evident, at least before me although I have not made findings, that there has been family violence.

4. The mother denies that she feels still acrimonious towards the father but I am satisfied, having heard the submissions of the parties, that this is a relationship that ended, apparently 18 months ago, but in which there is considerable acrimony between the father and the mother. The Court must now determine whether or not it should issue final orders and it does so, as it usually does, on the basis of what are the best interests of the children.

5. I am going to turn to the Family Report of Ms M. She deals with the interviews with the adults - that is, the father and the mother - and then with the children and I note that the child, X, who is 13 years of age, presented with a combative and disrespectful attitude towards the Court and the whole process and with immense dissatisfaction that his wishes were not being heard.  He said the parenting arrangements were torture.  He describes being in less stress since his parents separated and related experiences with his father that have clearly affected his present relationship with his father.

6. At paragraph 39, Ms M reports:

   X describes that his father previously placed a lot of pressure on him.  He thought his behaviour and school performance had improved since his father left the home.  X has found it helpful working therapeutically with Ms L, particularly in gaining ideas of what to do when spending time with his father.  He feels listened to by Ms L, however, he does not believe he will require ongoing support in the event that he is not to spend time with his father.

7. Y presented as a more open, articulate and bubbly girl.  She described feelings of unpleasantness around her father.  The report writer notes that the observations of the children with the mother were, as one would expect; warm and positive, demonstrating a strong, meaningful relationship with the mother.

8. However, I note that when both children asked if they were required to spend time during the interview process with the father, Ms Tynan’s response was, and I am quoting, “It’s just something you’ve got to do.”

9. The interaction with the father was also reported on.  I can say that, having read the report that, notwithstanding the very strong views expressed by both children, the interaction appeared, at least to the report writer and I am referring to paragraph 49, positive:

   X was enthusiastic and responsive to his father during this easy discussion.

10. Paragraph 50:

    Y remained engaged in speaking with the father.

11. The evaluation, which begins at paragraph 51 is as follows:

    51.This dispute relates to the parenting arrangements for X aged 13 and Y aged 12. 

    52.X and Y have been caught in their parents’ highly acrimonious separation. 

    53.As previously identified in the section 11 assessment by Dr J, the children have been exposed to the mother’s toxic narrative regarding Mr Gipps, as well as details pertaining to all aspects of the parental relationship and separation.  There can be no doubt that the children’s views have been adversely affected by their mother’s exposure of them to such information.

    54.Ms Tynan maintains the children have a right to information and that she has provided this as requested by them and as assessed as necessary by her.  She shows no insight into the emotional and psychological impact this information has on the children and the impact of such on their capacity to experience their father as separate from her and separate from the dispute.  At best, this demonstrates poor judgment on Ms Tynan’s part.  At worst, it is intentional manipulation of the children arising from her anger towards the father.

    Her behaviour gives little regard to the children’s long-term emotional, psychological wellbeing and undermines her statements that the children’s wellbeing is her priority.  It also indicates no awareness that it is the children’s right to enjoy a meaningful relationship with their father.  Based on her presentation, there cannot be any confidence around a change in this behaviour.

    55. The children are aligned with their mother.  They view their father as entirely negative and the mother as entirely positive.  This is particularly the case with X, a 13 year old boy, who has formed exceptionally strong opinions about his father and who is empowered by his mother and his emerging sense of competence relating to his developmental phase to overt and act upon his opinions.

    Y presents as less resistant in her relationship with her father and her behaviours and her views appear to mirror those of her brother.  Again, Y receives no challenge from her mother regarding the negativity of her views.

    It is interesting to note, however, that the children continue to comply with arrangements to spend time with their father, despite their expressed views.  The observations of the children with the father indicated that there may well be elements of this relationship they enjoy, more so with Y and, certainly, the observations were not entirely consistent with the negativity of their narratives.

    56. Unfortunately, there has not been any significant shift in the children’s negative narrative and firmly-held beliefs about their father, nor in their resistance to spending time with him.

    57. The children and the parents, to a lesser extent, Ms Tynan, identifies the therapeutic approach as positive.  Certainly, it has assisted Mr Gipps to understand the psychological tensions associated with navigating the parental relationship dynamics.  It has also provided the children with tangible strategies for approaching their time with their father.

    It is strongly recommended that the family continue to engage in this process because this is assessed as the most likely avenue for change.  Court orders in the absence of therapeutic intervention are unlikely to be successful in ensuring the children are able to enjoy a meaningful relationship with their father or enabling them to continue to spend time with them.

    58. The Court may, therefore, consider it premature for this matter to be finalised at this time given the need for ongoing therapeutic work with the family.  Any substantial increase in the time the children spend with their father is not recommended at this time, as this is likely to be counterproductive to the longer-term goal of the children re-establishing their relationship with their father.

    59. Whilst the children have been exposed to considerable and inappropriate information by their mother, it also seems that the children may have been directly exposed to some behaviours by their father which they find challenging and which have impacted on their willingness to spend substantial time with him.  Mr Gipps is strongly encouraged to continue to explore his behaviours within a therapeutic setting to gain both insight into the impact of such behaviours on the children and to develop more appropriate behavioural patterns and better manage any anger issues.

    60. X and Y have likely experienced their father as taking a firmer approach to their parenting, particularly in comparison to Ms Tynan who appears to let boundaries in a relationship with them inappropriately elevating to the role of confidant and friend.

    61. The children’s accounts of their father’s violence appear exaggerated at best and can be, perhaps, viewed within the context of the current alignment with their mother.  There is no supporting information to suggest the children have been exposed to the degree of violence described, nor are their accounts supported by Ms Tynan’s own information.

    At a minimum, however, the children have been exposed to a tumultuous parental relationship which was characterised by periods of high conflict and mutually verbally abusive behaviours.  The court will doubtless make a determination as to whether Mr Gipps has engaged in physical violence as alleged.  The parents will need to work towards a more collaborative or at least a more cooperative parental relationship.  Unfortunately, Ms Tynan seems to have little motivation to do so.

12. The recommendations are, essentially, that the children live primarily with their mother, the family continue to engage with Ms L and there be a plan for a graduated increase in the children’s time with their father to be introduced and guided by Ms L.  As a guide, however, Ms M recommends working towards the children spending one full day with their father each week within two months.  And she also recommends a restraint on Ms Tynan discussing any aspects of these proceedings with the children or permitting any other person to do so, also a restraint on denigration and so forth.

13. The first question is whether the Court should proceed to a final hearing and the father says no.  He seeks orders that he spend time with the children each Sunday from 12.00pm to 5.00pm commencing this Sunday and at such other times that may be agreed;  that the parties and the children continue to attend upon Ms L as directed by her with the children to attend on no less than one occasion each week for the next eight weeks commencing in the week of 20 October 2014 with a cost of the children’s attendance to be shared;  the husband and wife attend on Ms L no less than two occasions over the next eight weeks commencing in the week of 20 October 2014, the costs to be shared.

14. He proposes there be a report from Ms L for the purpose of the next Court return date; that a copy of the Family Report be forwarded to Ms L; and that changeover which, apparently, now takes place at (omitted) shopping centre be changed to McDonald's (omitted); and then there be orders that the wife leave the changeover venue immediately and not knowingly go within 200 metres of the changeover venue; that the wife be restrained from advising the children that they are not permitted to leave the changeover venue or get into the husband’s car or that the children do not have to spend time if they do not want to.

15. Then there is an order sought that the wife facilitate the children with contact and in communication with the husband and then an order that the wife immediately unblock the children’s mobile phones and iPads.

16. The wife seeks an order in her case outline.  She wants final orders.  She seeks an order that the children spend a total of five hours from 12 noon to 5.00pm on a Sunday every three weeks with supervision.  As I understand it, this is by the father’s brother for the duration of the next 12 months until the children feel safe.  She says this also limits any possible future violence.

17. When asked how does the Court determine when the children feel safe, she says that she will do that.  She also is opposed to continued psychological visits, she says as it affects the children’s wellbeing.  She says it makes them unhappy and sad.  So those are the orders she seeks.

18. When asked why the matter should be heard as a final matter over the next day, she says that she provides the family with stability.  I have no doubt that she does.  The children’s school reports are a testament to the stability that she provides.  She says that the fact that she has had to attend Court on 12 occasions is affecting her employment.  She is not happy with the children attending the psychologist.  It is keeping her away, the Court, from her children.  The children are doing well at school.  They have a good social life and these Court proceedings or the attendance on a psychologist will disrupt this.  She says she also cannot afford to pay for the psychologist fees.

19. It appears that the mother is not opposed to the children attending the psychologist as determined by Ms L. Ultimately, she does not want to pay. She does not believe she needs to though. She says she has it all sorted out. I beg to disagree. Observing her submissions, I suspect that there is a significant amount of anger and grief about the way the father has treated her and how he has treated the children in what was, clearly, a very volatile chaotic and dysfunctional relationship.

20. Having looked at all the material, I am satisfied that I am not in a position to determine what are in the best interests of the children presently. Section 60CC provides that the children have a right to the benefit of a meaningful relationship with both parents. They clearly do with their mother. Their relationship with their father has been severely fractured and it is, of course, a requirement of the Act that the children have the benefit of a meaningful relationship with him subject, of course, to the children being safe. However, it is not for the mother to decide when the children are safe. It is for the Court.

21. Based on objective evidence, including expert evidence, I suspect that, on the material before me, although I make no finding, that until the mother feels safe herself based on all her experiences, she will be unable to objectively decide when the children are safe.

22. I must emphasise here that the mother has clearly brought up the children on her own.  She is a single mother and the children have done extremely well at school and that is no criticism on her parenting capacity to that effect.  However, where the mother, on the material before me, has let herself down and her children is her inability to see that she needs to promote a meaningful relationship with the father.

23. She says she does, however, the Court is not satisfied that she really does want this for her children.  I am not even sure that the mother accepts that the children would benefit in dealing with their grief and their anger over the separation of the relationship and the breakdown of the relationship with their father by counselling.

24. My view is the mother feels that the way they should deal with it; that is to simply move on, get involved with their social activities, benefit from school and put that all behind them.  My experience and the research on children and the views of Ms M are that it is not going to necessarily – in fact, is more likely not to be - in the best interests of the children.  They need, however sad it makes them, to attend counselling to deal with their grief and their anger.

1. It is apparent that there has been some benefit, at least, from the attendance by both parents at Ms L and I am prepared to make orders that the parties continue to do so because what I want from Ms L is a report, an objective report, before the Court so I can consider the matter further.

2. The mother is very critical of the fact that the children are just being dragged through a Court process.  It is not pleasant for children but to make orders now would not be in the best interests of the children and so the Court cannot make final orders now.

3. I now turn to what should happen in the meantime.  Looking at the orders proposed by the father, the mother says that the time the father has with the children - there seems to be agreement that it should be 12.00pm to 5.00pm on a Sunday and the mother wants it supervised by an uncle.  I am not satisfied that this is necessary.  At present, it is not being supervised and I do not have any material before me to suggest that it should be supervised.

4. Given that the children are in the process of starting to re-establish their relationship with their father, it is my view that time spent every week would be too much.  Every three weeks would be not enough.

5. I was convinced, having heard Ms M and having heard the mother, that, in fact, the focus of the counselling ought to be more on the parents at this stage because it seems to me that once the parents are better able to deal with the acrimony between them and how both of them manage the children in a way that is in their best interests, the better for the children and the more likely that the children are going to develop a meaningful relationship with their father. And I am saying this because I accept that they already have a meaningful relationship with their mother.

6. The mother says she cannot afford the costs of herself or the children to attend counselling.  The father is unemployed.  The cost apparently is $90 each session. The mother’s net income is $60,000. The father is unemployed.  I just simply do not have enough information, financial information, before me to assess whether the mother cannot afford this amount.

7. I am advised by counsel for the father that Ms L  is in a position to both engage in the counselling and also to make a report.

8. The mother complains that it is inconvenient but I think that is more of an inconvenience to the logistics of turning around and getting to that spot.  McDonald’s is probably an easier place to effect a changeover.  The mother can leave the children there and leave.

9. I am not going to make orders 7 and 8 as sought by the father.  I take the mother’s submissions on their face value that she will leave straight away and that she will not be there hanging around for the children.

10. As to the mobile phone, the mother appeared to agree to provide the husband with their mobile phone.  In any event, I do not see, really, any evidence of the blocking of the children’s mobile phone.  I will not make that order.  The father, apparently, has the son’s mobile phone.

11. The father seeks an order for the children to be placed on an airport watch list.  There is very little evidence but there seemed to be - at this stage, I think a halfway measure is that the mother who is in possession of the passports bring the passports to the registry of the Federal Circuit Court. The mother says she does not have their passports and, in any event they have expired. I will require the mother to file and serve an affidavit to that effect.

12. If the father wishes to pursue a watch list order, I will deal with that in due course.  I need more information.

13. There is a notation.  The father wants a notation.  I am happy to have that, however, I must emphasise that the progress in the father’s time with the children will, obviously, depend on objective evidence at the next Court date.

14. Independent Children’s Lawyer. As counsel, Mr Barbayannis, for the father has rightly indicated, the circumstances in this case may point to the appointment of an Independent Children’s Lawyer.  That is, within the criteria of re K.  One of the things that has emerged through the Family Consultant’s Report and the evidence, oral evidence, of Ms M given today is that although Ms M’s evidence was it would be on the mild range of the spectrum in terms of alienation, that there is, indeed, a real issue of alienation, that the children’s views appear, on the objective evidence so far, to be quite enmeshed with their mother’s and, therefore, the Court would be assisted by the appointment of an Independent Children’s Lawyer but the mother says that that is just another thing that the children have to go through, to have to deal with lawyers.

15. In my view, that misunderstands the role of the Independent Children’s Lawyer.  They are there for the children.  And in this matter where the parents seem to have such opposing views and we have children who may well be on the verge of alienation and there may well be significant family violence or violence because there are charges afoot that I have not even looked at, I am satisfied that the appointment of the Independent Children’s Lawyer is, likely, one that the court should order in the best interests of the children and I do so.

16. For reasons in this judgment I make the interim orders set out above.

17. Otherwise, this matter is adjourned to 19 December 2014.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date:  31 October 2014