Gladstone and Gladstone

[2016] FamCA 1166

FAMILY COURT OF AUSTRALIA

GLADSTONE & GLADSTONE [2016] FamCA 1166

FAMILY LAW – CHILDREN – PARENTING – Where the mother wishes to suspend time between the child and the father – Where it is asserted the child is suffering from anxiety and depression  - Where each of the parties seeks various restraining orders against each other and against the wife’s partner – Where the mother seeks to remove the child from Australia during the Christmas holiday period – Where such time falls within the father’s time with the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gladstone

RESPONDENT: Mr Gladstone

FILE NUMBER: SYC 6764 of 2016

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 8 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Rebekah Dorter Family Law

COUNSEL FOR THE RESPONDENT: Mr R Schonell SC

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

Orders

1. The application to suspend time between C born … 2005 is refused and that application is dismissed.

2. The application to restrain the father from approaching X School and attending C’s sporting events or extra-curricular activities is refused and that application is dismissed.

3. The application to remove C from Australia between 8 December 2016 and 23 December 2016 for the purposes of travelling to Europe with the mother is refused and that application is dismissed.

4. The application to restrain the mother in respect of medical, psychological or psychiatric attendances on the part of the children is refused and that application is dismissed.

5. In the event that either the mother or father arrange for the children M born … 2000, W born … 2002 and C born … 2005 to attend a medical examination, procedure, psychological or psychiatric assessment or any other type of health assessment that parent is to advise the other parent as soon as practicable of the identity of the treating practitioner, of the purpose of the attendance and is to provide authority to that medical practitioner to disclose information in relation to the child to the other parent.

6. The application to restrain the mother in relation to the father’s collection of C from the school is refused and the application is dismissed.

7. The application to restrain the mother in respect of allowing Mr T to attend at C’s school is refused and the application is dismissed.

8. The application to restrain the mother in respect of contact with the children and attendance at the father’s home is refused and the application is dismissed.

BY CONSENT IT IS ORDERED THAT:

1. The parties do all acts and things and execute all documents necessary for the child M, born … 2000, to undergo an in-house educational assessment at F School with Mr I school psychologist.

2. In the event that Mr I recommends that M be referred to any medical practitioner for the purpose of any further assessment and/or medical treatment to assist M with his educational needs the parties shall follow all recommendations and all treatment regimes which may follow from such referral.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gladstone & Gladstone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6764 of 2016

Ms Gladstone

Applicant

and

Mr Gladstone

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. These proceedings primarily concern C the eleven year old child of the applicant and respondent.  Orders were previously made after a contested hearing in 2013 that provided for C and her brothers to live mostly with their mother in an approximately nine/five fortnight split with the father and approximately half the school holidays with him.  The parents share equal shared parental responsibility.

2. The mother and father have a poor relationship as is illustrated by Exhibit “M2”.  The mother has re-partnered and there has been at least one incident between that partner and the father.  C, uncontroversially has depression and anxiety.  In that context the mother seeks a suspension, noting that the proceedings are currently awaiting the appointment of an Independent Children’s Lawyer and a report from the single expert in the children’s case.  Each parent seeks various other restrains and the mother seeks to take C overseas for a holiday.

3. Firstly the question of the suspension of the orders that C spend time with her father.           

4. As noted it is uncontroversial that C suffers from depression and anxiety.  The mother’s case calls for a suspension in circumstances where C has not seen her father since 28 September 2016.  The mother asserts in particular that C refuses to go to the father.  The father’s case is that the evidence is not sufficient either to link the depression and anxiety to spending time with him nor to suggest that there is an alleviation of those if she does not spend time with him.  He asserts that the evidence is tenuous as to C refusing to spend time with him.

The breakdown in C and the father’s relationship

1. The mother asserts that there has been a significant breakdown of the relationship between C and her father such that she is unable to get C to go to the father.  However, examining the mother’s affidavit material simply does not show that the breakdown of relationship nor does it show any significant effort by the mother to cause C to see her father.  The height of the material brought by the other in relation to these issues is contained in exhibits “M3” and “M4” that record that C has said that she really misses her mother. 

2. On 21 September 2016 during a consultation C said she was “a bit stressed” by going to dads.  On 16 September 2016 she was worried that she was going to dads for a week next week.  However, it is unclear whether that reference to being worried was a reference to the issues with C’s bowels not being resolved.  It was in the context of an attendance on the doctor which resulted in an ENT referral and was recorded as a visit in relation to vertigo.

3. There is an entry on 24 September 2016 where C attended with her father.  The reason for the attendance recorded in those notes was anxiety and depression although that recording was conceded to be somewhat enigmatic by counsel for the mother.  That is, it was recording a reason that was not reflected in the balance of the attendance notes there and hence it is unclear what was said to the father about it.  There was an attendance on 28 September 2016 when C attended with her mother when she expressed that she did not want to go to her father’s “today”.  The context of that entry was related to a particular interaction C had had with her father which was said to be the source of unhappiness.  At the same time C completed a K10 questionnaire.  She indicated that she was unhappy going to dads, happier with mum.  No part of the mental health plan indicated that she should not be seeing her father and the assertions recorded in there from C are limited in their negative expression that could be attributed to the father.

4. There is a need to be cautious in interim proceedings before taking what is the extreme step of continuing disruption of the relationship between C and her father.  That need for caution is accentuated because recently this Court has made findings in this matter at a contested final hearing.  It included issues about the mother’s enmeshment with the children.  This calls for some caution in dealing with how C presents when attending with the father.  I put the matter no higher than that it requires some caution.

5. The evidence is however, tenuous to establish that the father is causative of the anxiety and depression.  It may be that he is a contributing factor but the context for C involves other significant changes occurring for her in the mother’s household.  The mother for example has re-partnered.  That was a matter that in advance she recognised as being a complicating factor for her children.  Further, against jumping to the conclusion that time with the father is causative and lack of time would be the remedy, is the fact that the ongoing expressions of anxiety or depression reported by the mother from C have continued well after C has ceased to spend time with her father.  That is, not only have they not been made directly referable to her time with her father, but they have continued even when she is not spending any time with her father.  Further, there is no evidence that the mother has encouraged C spending time with her father.  There is little, if any, evidence of what is going on inside the mother’s household with C that might support the conclusions that she urges.  There is little evidence of resistance on the part of C spending time with the father.  There is simply at this interim stage too tenuous a link between suspension as an alleviating factor and contact with her father as being causative of the depression and anxiety.  It is too unsatisfactory a basis upon which to suspend time that is provided for in the previously contested proceedings, particularly when one recognises the uncertain nature of the duration of what would be a complete cut off.  Further, given the results of mediation between the parties that immediately preceded these incidents, that is occurring in August 2016 mediation that contemplated and confirmed that C would be spending block time with her father during this holiday it is difficult to now conclude that her interests are served by a suspension when as soon ago as August this year that was not the view of the parties.

6. In summary the evidence is not such as to allow me to conclude that it is protective of C’s emotional well-being to suspend the time with her father and I decline to suspend as it is not indicated that it is protective nor as necessary by virtue of C’s views, nor as necessitated by parenting capacity.

The trip to Europe

1. I turn then to the trip to Europe.  I know little of C’s expectations, hopes, commitment to or knowledge of this proposed trip.  It appears form exhibit “M1” that the booking was made in September 2016, at that stage, merely for the mother and her partner.  C has later been added to the trip.  That was done without consultation and at a time that was inconsistent both with the orders that govern the time that C is to spend with her father and inconsistent with the specific mediated agreement between the parties as to what would happen on these holidays being a mediated agreement in August of this year.

2. The absence of evidence about what was submitted to be C’s likely disappointment if the trip did not go ahead means that I am unable to find that such disappointment is likely to occur and is likely to impact upon her father’s relationship with her.  Given that such a trip would require displacement of the current orders, and the mediated agreement and given that it involves the continuing separation of C and her father I am unable to conclude other than by guess work that it is in C’s interests to continue the practical suspension of time with her father to undertake the trip and I decline to make the order sought.

The restraints

1. The mother sought a restraint regarding the father’s attendance at the school and extra-curricular activities.  The father sought a restraint regarding the mother’s partner attending at the school and sought a restraint against the mother interfering with the hand over.  He conceded that this second aspect lacks a practical need at this stage.

2. It is uncontroversial that there has been an incident between the father and the mother’s partner.  It may readily be taken to be that that was detrimental to C.  Whichever version might be accepted such interaction is detrimental to C.  It was argued that I should rely on the corroborative evidence to make a finding to enable me to restrain the father.  However, even with the corroborative material this is still a controversial matter and the corroboration does not cover the instigation of the incident between the father and the mother’s partner. 

3. In circumstances where I have determined I will not suspend time between the father and C I cannot know what practical consequences of such a restraint will have upon the father and C.  Conversely I do not know the need for the mother’s partner’s attendance on the material.  I do not know how such a restraint will affect the operation of her household.  I am not satisfied that it is just or convenient to make either of the restraints at this stage in the proceedings, particularly as C is about to enter into a school holiday period.

4. As to the balance of the restraints that were sought against the mother, a restraint was sought in relation to attendances on medical practitioners.  This is a highly restrictive restraint that is sought.  It is not simply reflective of equal shared parental responsibility but impacts upon her ability to engage in the day to day care of the children.  While the material before me raised concern as to the seeking of treatment by the mother while the children are in her care it does not raise it to such a height as to justify the restraint sought at this stage.  However, it is appropriate than order be made that will require notice and authorities to be given in relation to any medical treatment that is arranged by either of the parents so that the other parent may be on proper notice of what is happening.  I will make orders to that effect.

5. The last restraint that was sought related to attendance by the mother at the father’s home and the mother making contact with the children while in the father’s care.  In the same manner as I was unable to find that the spending of time with the father was causative of anxiety and suspension would be helpful to alleviate it in these interim proceedings I am unable to find that such a restraint upon the mother will mitigate C’s anxiety or depression.  I acknowledge that it may be the case that the contact by the mother is such as to exacerbate the anxiety, particularly by virtue of the father’s description of C’s reaction to telephone calls to the mother as set out in paragraph fifty of his affidavit.  However, I am not in a position at present to conclude that the restraint sought by the father would alleviate C’s anxiety.  Even acknowledging that the restraint was directed to the mother but not to C the nature of the restraint on the mother would impact on her ability to respond to C such that I am not able to find any benefit to C and I decline to make the restraint.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 9 December 2016.

Associate: 

Date:  22 March 2017