Grainger and Grainger
[2019] FamCA 56
•11 February 2019
FAMILY COURT OF AUSTRALIA
| GRAINGER & GRAINGER | [2019] FamCA 56 |
| FAMILY LAW – CHILDREN – Where final parenting orders were made in 2015 for the child to live with the mother and spend supervised time with the father with provision for the father to apply to vary the time with orders – where in 2016 the father sought to vary the final orders – where the child has not spent any substantial time or communicated with the father since September 2015 – where the Court finds the child’s persistent opposition to spend time with the father a significant issue – orders made for the child to live with the mother and spend no prescribed time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA |
| Grainger Grainger [2015] FamCA 276 Bondelmonte v Bondelmonte [2017] HCA 8 |
| APPLICANT: | Ms Grainger |
| RESPONDENT: | Mr Grainger |
| FILE NUMBER: | SYC | 8552 | of | 2015 |
| DATE DELIVERED: | 11 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 13, 14 & 15 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr N Ford |
| SOLICITOR FOR THE APPLICANT: | Fay Frischer Solicitor |
| THE RESPONDENT APPEARED IN PERSON |
| INDEPENDENT CHILDREN’S LAWYER: | Mr D Holmes, KD Holmes Solicitors |
Orders
That all previous parenting orders be discharged.
That the child, L born … 2009 (“the child”) shall live with the mother.
That subject to the terms of this Order, the mother shall have sole parental responsibility for major long term decisions for the child but shall advise the father in writing not less than fourteen (14) days prior to the decision coming into effect if she intends:
(a)to relocate the child’s residence outside the F Town, New South Wales; or
(b)change the child’s surname; or
(c)intends to change the child’s school, once the current home schooling arrangements cease; or
(d)to travel overseas with the child.
That the parents are to keep the other parent informed of their current email address; emergency telephone number; postal address (for gifts and correspondence to the child) and shall advise the other parent of any change to those particulars within fourteen (14) days.
That the mother shall advise the mother within fourteen (14) days of the re-enrolment of the child into a public or private school, upon the cessation of home schooling and this order shall be authority for the father to obtain information from the school as to the child’s progress.
That the mother shall advise the father if the child suffers a serious injury, condition or illness requiring hospitalisation within forty eight (48) hours of such hospitalisation.
That the father shall be permitted to send to the child a card and/or gift for the child’s birthday, Christmas or other significant milestone in the child’s life and the mother shall ensure that such cards and gifts are handed to the child without any adverse comment.
That the mother shall encourage the child to respond by email to the father to thank him for the card or gift.
That the mother shall, without the prior consent of the father, be permitted to remove the child from the Commonwealth of Australia for a holiday and for the purpose of overseas travel, shall have parental authority to make application and renew the child’s Australian passport.
That not less than fourteen (14) days prior to the child’s intended travel overseas, the mother shall advise the father by email, the scheduled dates for departure and return and the countries to be visited.
That the Independent Children’s Lawyer (“ICL”) shall have liberty, and is directed to provide to the New South Wales Department of Family and Community Services a copy of the family report prepared by Dr J and a copy of these Reasons.
That upon complying with Order 11, the ICL is discharged, subject to the ICL having liberty to make any application for costs seeking a contribution by the father and/or the mother.
Property orders
That pursuant to Rule 17.02(e) of the Family Law Rules 2004, Order 1 made by the Court on 25 May 2017 is varied to provide for the words “(save for the property orders 22 to 30)” to follow “18 June 2015”.
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 Grainger & Grainger 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 BRISBANE |
FILE NUMBER: SYC 8552 of 2015
| Ms Grainger |
Applicant
And
| Mr Grainger |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of the child separated when she was less than 12 months of age. Despite an earlier eight day hearing and significant attempts at reconciling the child with the father (including intensive therapy), the child refuses to spend time with the father.
The parents have their different perceptions as to how we have reached this said position for the child, now aged nine years. The reasons which follow seek to explain the order that is in the child’s best interests at this time.
Contextual history
The statements of fact hereafter should be construed as findings of fact.
The parents of the child (born in 2009 and now nine years of age) began to cohabit and married in 2006 and finally separated in August 2010, before the child had reached her first birthday.
The history of events to the delivery of a judgment by Tree J on 20 April 2015 are set out fully in the published reasons of his Honour (see Grainger & Grainger [2015] FamCA 276) and no useful purpose is served in repeating that history, save for context to record in these Reasons that:
a)the father is now 47 years of age; was born in Melbourne and is currently studying whilst living in the E Town area, New South Wales;
b)the mother is now 35 years of age; was born in the United Kingdom and has lived in Australia continually since 2006. The mother has lived in the G Town area, New South Wales with her mother Ms S (aged 59 years) for some time and since separation the child has always lived with her;
c)between April 2011 to April 2012 (when the proceedings were transferred to the Family Court of Australia by FM Demack (as she then was)) orders were made for increasing unsupervised time between the child and the father. On 24 April 2012, FM Demack suspended unsupervised time and, as a result of a number of untested allegations, ordered that the child spend supervised time with the father at the E Town Contact Centre;
d)with the benefit of a family report by Ms B prepared in October 2012 and a psychiatrist assessment by Dr V prepared in March 2013, a trial commenced before Tree J on 19 August 2013, but for the reasons set out at paragraphs 8 to 9 of the judgment, the trial was adjourned; the child was to undertake and receive some psychological support; the mother was given leave to relocate to H Town and supervised time was to continue at the H Town Contact Centre; and
e)without the need to record fully other difficulties, the trial resumed before Tree J on 16 February 2015, some 17 months later. By this time the contact between the father and the child had ceased (in April 2014) and even telephone communication had ceased (in September 2014). The reasons of Tree J, covering the evidence over eight days of hearing, are very comprehensive and I record some of the findings made later in these Reasons.
On 18 June 2015 final parenting orders were pronounced and made in the following terms:
1. That all previous parenting Orders be forthwith discharged.
2. That the mother have sole parental responsibility for the child L born … 2009 (“the child”) save for any decision to relocate the child to live in a place that makes it significantly more difficult for her to spend time with the father pursuant to this parenting order.
3. That when the exercise of her sole parental responsibility, as provided for in paragraph 2 hereof, requires the mother to make a decision about “major long-term issues”, as that term is defined in the Family Law Act 1975 (Cth), in relation to the child, save for the exclusion from that definition of decisions about the relocation of the child such that it makes it significantly more difficult for her to spend time with the father, the mother shall:
(a) inform the father in writing of the decision to be made;
(b) invite written input from the father;
(c) take the father’s input into account when making the decision that is to be made; and
(d) inform the father in writing of the decision she makes.
4. That the child shall live with the mother.
5. That the child shall spend time with the father as may be agreed in writing between the parties, or directed by the psychologist appointed under order 9 hereof, but failing such agreement or direction, on a supervised basis at the U Contact Centre at H Town (“the Contact Centre”) for not less than two hours per fortnight (or per week if the Centre can provide such time).
6. That the parties forthwith do all such things and sign all such documents necessary to enrol with the Contact Centre, to the extent that they have not already done so, and share equally in all of the costs of the supervision of the child’s time with the father conducted at that Centre.
7. That either or both of the paternal grandparents are at liberty to attend with the father when he spends time with the child.
8. That the mother is restrained from:
(a) attending at the venue where the child is to spend time with the father, with the maternal grandmother;
(b) prolonging her departure from the venue after delivering the child;
(c) remaining at the venue when the child is spending time there with her father.
9. That the parties shall engage with a psychologist (“the psychologist”) selected by the Independent Children’s Lawyer to meet with the child one hour prior to and immediately after the first six (or such other number as may be advised by the psychologist) occasions that she spends supervised time with the father at the venue and the Independent Children’s Lawyer shall provide such psychologist with copies of the Family Reports of Ms B (2), Ms M (1), the Report of Dr V and these Reasons for Judgment, but no other documents pertaining to the matter.
10. That the parties shall instruct the psychologist referred to in paragraph 9 that he/she is not to discuss the child with third parties or to receive information from third parties, other than the manager of the venue.
11. That the parties shall comply with the psychologist’s reasonable directions including, but not limited to:
(a) the preparation of the child for spending time with the father;
(b) the venue at which the child is made available to spend supervised time with the father (noting that the psychologist may wish to supervise such time themself);
(c) activities which should be undertaken by the child when spending time with the father.
12. That either party is at liberty to obtain a written report from the psychologist after no less than six sessions of supervised time have occurred between the father and the child.
13. That the costs of the psychologist shall be shared equally by the parties.
14. That the father is at liberty to apply to vary this order as to his time with the child (including any requirements for supervision), after six sessions of supervised time have occurred between the father and the child and he has obtained a written report from the psychologist and Certificates of Completion of the parenting courses referred to in paragraph 19 of these orders.
15. That the mother shall authorise any school attended by the child to give the father information about the child’s educational and developmental progress and her involvement in school activities and to supply him, at his expense if necessary, with copies of school reports, photographs, certificates and awards obtained by the child.
16. The mother shall authorise any medical practitioner who treats the child to give the father information about the child’s medical treatment.
17. That the mother be restrained from:
(a) denigrating or criticising the father to the child or allowing any third party to denigrate or criticise the father within the presence or hearing of the child;
(b) discussing these proceedings with the child;
(c) other than as specifically provided in these orders, taking the child for counselling or psychological intervention or allowing others to do so unless recommended by the child’s school or general medical practitioner and after the mother has consulted with the father pursuant to paragraph 3 of these orders and has provided the father with the name, address and telephone number of the proposes counsellor or mental health professional.
18. That the father be restrained from:
(a) denigrating or criticising the mother to the child or allowing any third party to denigrate or criticise the mother within the presence or hearing of the child;
(b) discussing these proceedings with the child.
19. That the mother and father each complete a parenting course such as Triple P or 123 Magic and a Parenting Orders Course.
20. That the mother and father shall keep the other parent informed at all times of their residential address and mobile telephone contact numbers and shall advise the other parent of any change to any of those details within 48 hours of such change.
21. The Independent Children’s Lawyer shall:
(a) notify the parties of his selection of a psychologist pursuant to order 9 of these orders; and
(b) be discharged on 18 June 2016, or such other date as may be ordered.”
Although made as final orders, the order provided at order 14 for the father to have liberty to apply to vary the order on certain prescribed conditions.
On 21 August 2015, the child attended an initial consultation with Mr V (Psychologist) in H Town and a report of the Psychologist (dated 5 January 2016) was relied upon by the Independent Children’s Lawyer (“ICL”). Mr V was not the subject of cross examination. His report recorded that:
a)after consultations with the mother and the child on 21 August 2015 and 28 August 2015, it was agreed that “it would be best not to give the child prior warning before the first face-to-face contact with [Mr Grainger], due to likely anticipation anxiety that would ensue.”
b)The first face to face contact with the father was scheduled for 3 September 2015. Before seeing the father on that date, the child stated “Daddy is a poo poo stink head” and expressed strong negativity about the possibility of seeing him face to face but after “much coaxing the child hesitantly agreed to allow [Mr Grainger] to enter the room”;
c)The psychologist recorded the following observation of the contact on 3 September 2015 as follows:
[Mr Grainger’s] demeanour upon entering the consulting room with the child was gentle and warm. His tone and use of language was appropriate for engaging with his daughter, particularly given the difficult circumstances surrounding the child’s resistance and lack of familiarity with [Mr Grainger]. [The child] initially chose to remain physically distant from [Mr Grainger], and sought comfort by positioning herself closer to the writer. [The child] showed interest and curiosity as [Mr Grainger] revealed the gifts he had brought for her and his descriptions of being a volunteer ... Within approximately five minutes the child’s level of defensiveness disappeared completely as she happily engaged with [Mr Grainger] by telling him stories of her experiences and playfully interacting with him. For the remaining 60 minutes of the consultation the child laughed and payed with minimal involvement from the writer. The writer also left the room for approximately five minutes without any evidence of anxiety from [the child]. At the completion of this consultation [the child] agreed to see [Mr Grainger] again the following week, which was just prior to her birthday. Following [Mr Grainger’s] departure, [the child] excitedly sought out [Ms Grainger] to show her what she had received from [Mr Grainger] and tell her about the fun she had playing with her father.”
d)sadly, as it transpires, the visit on 3 September 2015 in the rooms of Mr V, was the last contact that the child has spent with the father – now over three years and despite other Court directed initiatives as I set out;
e)before concluding the examination of Mr V’s report, it is proper to record that:
i)he felt it was “obvious” that the mother was “not genuinely pleased about the positive experience [the child] had with” the father on 3 September 2015;
ii)the mother was assessed as a “warm and caring individual, who appears to be highly focused on her child’s well being”; and
iii)after the failed attempt to have a further contact visit on 11 September 2015, the father “was observed to be teary in discussing his sense of hopelessness”.
f)Mr V expressed an opinion for two fold reasons for the child’s reluctance to engage with the father, namely:
i)the obvious presence of cognitive rigidity in the child and may simply have decided her father is “bad” and continues to default to this idea; and
ii)a possible contributing factor is the child’s possible awareness of the mother’s (and Ms S’) fear and dislike for the father such that the child aligns herself with the mother’s view that the mother presents as the only “safe option”.
g)The opinion and recommendations for future paternal visitation and parenting was expressed in these terms:
The contact visit between [Mr Grainger] and [the child] on 3/9/15 demonstrated that given the appropriate circumstances and time, [the child] is able to find comfort in [Mr Grainger’s] company and that [Mr Grainger] is capable of emotionally connecting with his daughter. It is understood that this addresses concerns raised at the most recent court proceedings, in March 2015, regarding how the child would react to being in her father’s care. Nevertheless, it is obvious that there will be difficulties translating this single positive experience in to an ongoing healthy relationship between father and daughter. Already it has been observed that the child has retracted her desire for contact with her father, despite obviously enjoying her time with him on 3/9/15.
While it is acknowledged that [the child] needs further desensitisation to her anxiety and opposition towards her father, it would appear that graded exposure in artificial supervised environments is not conducive to this process. It is suggested that the child needs to spend extended periods with [Mr Grainger] in more natural and familiar settings. The next contact between [the child] and [Mr Grainger] is almost certainly to be met with oppositional and acting out behaviour from [the child]. However, it is likely that once this initial anxiety response is ‘ridden-through’ [the child] can rediscover the fun she had with [Mr Grainger] on 3/9/15. Prior to this occurring it would be best if [Mr Grainger] and [Ms Grainger] can communicate so that [Mr Grainger] can become familiar with [the child’s] routines, habits, and preferences, and attempt to mirror these to a large extent in his care practices. [Mr Grainger] is likely to need support from a relative or other adult (familiar to [the child]) to contend with the acting out behaviour likely to ensue, at least initially. As has been suggested by previous reporters, mediation or psychological therapy for [Ms Grainger] around her anxiety towards [Mr Grainger] continues to be indicated.
Sadly, this single positive reaction on 3 September 2015, has not been built on for the reasons which follow.
Where only one supervised visit had taken place, the matter seemed to stall, until activated by an application by the mother on 29 December 2015 to seek an order for the child to travel to the United Kingdom to attend a funeral. The father initially responded seeking a PACE Alert, but after the matter commenced in the Federal Circuit Court of Australia in Sydney and was transferred to the Family Court of Australia in Brisbane, a major health incident occurred. The mother was, as later discussed, airlifted to Sydney from H Town for treatment at D Hospital for urgent treatment. The father has expressed concerns that he was not offered the opportunity to care for the child whilst the mother undertook this urgent treatment.
Further competing Applications, Contravention Applications and amended Applications were filed before a Registrar in Brisbane transferred the substantive proceedings to the Sydney Registry on 22 September 2016. No orders for time between the child and her father were made during this 15 month period. No time was occurring, although a Sydney Registrar did make orders for a s.11F intervention, which took place before a Family Consultant on 27 February 2017 (the father appearing by telephone). It appears that all new competing parenting applications (including the father’s amended Response filed 26 April 2017 for a change of residence) came before Le Poer Trench J on 23 May 2017 for determination. For context this interim hearing was over two years since Tree J delivered his reasons. For brief published reasons given, his Honour found that there “have been significant changes which have occurred since the conclusion of the evidence taken by Justice Tree” and a further determination is required. As a result, an order was made on 25 May 2017 in these terms:
“1. The orders made 20 April 2015 and 18 June 2015 are suspended pending further order.
2. The mother is to forthwith obtain from her General Medical Practitioner a referral for a “mental health care plan” which will involve the family attending upon Dr J, consultant psychologist, for family therapy.
3. Within 48 hours of the mother obtaining a referral to Dr J as provided above, she is to provide a copy of such referral to the Independent Children's Lawyer and the father by email.
4. In anticipation of receiving the abovementioned referral, each of the mother and father are to forthwith make the earliest available appointment to see Dr J for the purpose of her conducting therapy to promote the child L born … 2009 (the child) being able to spend time with the father.
5. The Independent Children's Lawyer is to send to Dr J a copy of this order together with a copy the Child Responsive Program Memorandum dated 10 March 2017 and the orders of the Court made 18 June 2015.
6. The parties are to follow the recommendations of Dr J as to the time the father is to spend with the child and the circumstances and places in which such time might be spent.
7. The parents are to each pay one half of the fees charged by Dr J for her services.
8. The father is to have an adult person (being not a relative of his) accompany him when he spends time with the child on the first three (3) occasions he spends time with her, unless he is otherwise supervised. That person is to be an observer only and a potential witness in the Court, should it be alleged by the mother that something untoward occurred on any of those times.
9. The hearing of the parties’ parenting Application for final orders is expedited and the matter is to be listed before a trial Judge for a first day event as soon as that can be accommodated in the Court.
10. The mother is not to change the child’s residence without giving the father at least 28 days’ notice of her intention to do so.
11. Neither party is to remove the child the child from Australia AND it is requested that the Australian Federal Police give effect to this order.
12. Until further order, the name of the child L born … 2009 (a female) be placed upon the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
13. Each party and the Independent Children's Lawyer has leave to re-list the matter before Justice Le Poer Trench (if he be available) on short notice (48 hours) to the Court and the other parties.”
For reasons that are disputed, no further contact visits occurred, although the mother did (as ordered) engage psychologist Dr J “for the purposes of conducting therapy to promote the child spending time with” the father, the apparent therapy based engagement did not manifest in time and contact with the father occurring, and I deal later in these Reasons with the evidence of Dr J arising from a family report (ordered by Rees J on 2 November 2017), which became Exhibit 11 before me. Dr J’s report was dated 7 May 2018 and she was the subject of cross examination before me.
The matter was listed for hearing before me sitting in Sydney commencing 13 August 2018. The Court expresses its regret that these Reasons in this very difficult matter have not been delivered more quickly.
Principles to be applied
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
Competing proposals
As the previous troubled and prolonged history identifies, by the time this matter came to final hearing before me commencing on 13 August 2018, the mother and father were maintaining quite stark and polarised positions. To a large extent, the positions were shaped by the family report of Dr J dated 7 May 2018 (Exhibit 11) where the expert was unable to make a preferred recommendation as to where the child should live, noting at paragraph 110 that:
110. Considering all that has this far been attempted in this matter, the only option to the Court (is) to make extreme Orders for the child to live with one parent and spend no time with the other parent. Both of the options have quite serious limitations and it would be the Court to determine which outcome is least likely to lead to the institution of further litigation.”
In light of this opinion, the competing proposals advanced by the parties were as follows.
Mother
The mother’s case outline set out parenting orders as follows:
1. That all prior parenting orders be and are hereby discharged and the Order of 25 May 2017 with respect to property be discharged.
2. That the child L born … 2009, live with the Mother.
3. That the Mother have sole parental responsibility for the child.
4. That the Father spend no time with the child.
5. That pursuant to section 68B of the Family Law Act (Cth) 1975 the Father be restrained from:
a. Approaching the child or attending upon or being within 100 metres of the child's home or school;
b. Contacting or attempting to communicate with the child by any means including via third parties;
c. Taking the child into his care or having the child in his care; and
d. Publishing any matter on any social media platform through the internet, or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of these proceedings that identifies the child.
6. That the Mother be permitted to travel with the child to the United Kingdom.
7. That the Mother has full authority pursuant to section 11 of the Australian Passports Act (Cth) 2005 to apply to the Department of Foreign Affairs and Trade for an Australian travel document for the child.
8. That the Father be restrained from making application to the Australian Federal Police to place the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.”
This remained the mother’s primary proposal.
However, during the course of the hearing, on instructions, Counsel for the mother Mr Ford advanced an alternate proposal, marked as Exhibit 10, and being Appendix One to these Reasons. The orders proposed, rather than urging no time be ordered, that a psychologist in the F Town Mr BB, be engaged to facilitate and be present when the father initially spends time (for two hours) with the child before a final order limited to one visit a month (from 10.00am to 4.00pm in the F Town area). This was characterised by the mother’s Counsel, as demonstrating the mother’s willingness to give it “one more go”. As noted by the ICL, Mr Holmes, no evidence from Mr BB was offered to the Court as to how he would be likely to achieve what Mr V and Dr J were unable to achieve.
Father
The father’s case outline set out the final orders sought expressed in four paragraphs as follows:
1. That the child shall live with the father.
2. That subject to Order 3 the father shall have sole parental responsibility in respect of all major long term issues as that expression is defined in the Family Law Act 1975 (as amended) in respect of the child [L] born … save that the father shall, prior to making the sole ultimate decision about any such issue:
a. Advise the mother of the decision he intends to make in writing which shall include SMS text;
b. Seek the mother's written response in relation thereto;
c. Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d. Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
3. That in exercise of his parental responsibility the father shall:
a. Send to the mother a short report by email not less than every three months about the academic, health and social progress of the child;
b. Keep the mother informed at all times of his residential address, and landline contact telephone number, as well as his email address and Skype account username;
c. Keep the mother informed of the names and addresses of all treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
d. Inform the mother as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child;
e. The Order authorises any treating medical practitioner to release the child's medical information to the other parent.
4. That the child shall spend time with the mother at such times and in such circumstances as the Court considers proper.”
The father’s final oral submissions made it clear that he sees no real alternate to the child living with him for the reasons he articulated. He has indicated if the child continues to live with the mother in the F Town area, he has no present intention to move closer to the child’s residence. As a result, travel time between where the parents choose to live is problematic and impracticable for any more inclusive or frequent parenting arrangement.
ICL
Mr Holmes as the ICL felt unable, on the evidence, to make any firm recommendation, other than to identify a number of stark alternatives, in general terms articulated in a document titled “Alternate Orders put forward by the Independent Children’s Lawyer”, which is reproduced as Appendix Two to these Reasons, and which somewhat confusingly proposes that the child live with the mother and spend time with the father (unless no time is ordered):
h)in a supervised environment arranged through the Sydney Children’s Contact Centre in Suburb N; or
i)up to each alternate weekend if the father is in G Town and for one half of each school holiday period.
The practical difficulties of achieving either of these options was conceded by the ICL, however Mr Holmes’ final submission is that an order for the child to live with the mother is the order least likely to lead to the institution of further proceedings (s.60CC(3)(l)) and that is a significant consideration.
The proposal of the ICL, if the Court found it is the child’s best interests to live with the father, provides for a moratorium of time between 12 weeks and six months, before the child commences supervised time and before moving to unsupervised time thereafter.
As these Reasons hopefully reveal, the father (as an unrepresented litigant) maintained a firm and consistent position whilst the parties who had the benefit of legal representation struggled to do so.
In many ways, the oft mentioned adage that at times the Court is confronted with identifying the “least worse option” resonates in this case.
Expressed basis for orders made by Tree J
Although I accept no appeal was filed against the parenting orders made 18 June 2015, it is to be acknowledged that an appeal is against orders – not findings. Nonetheless, the positions the parties adopted at the time of the first trial are strikingly similar to the proposals now advanced. The mother advanced a case that the father was an unacceptable risk to the child because he had sexually abused the child and further that the mother’s beliefs were reasonably held and affected her capacity to both parent the child and support the child spending time with the father. The mother, on this basis urged the Court to make no order for the child to spend time with the father.
As the orders set out earlier reveal, the learned trial Judge did not accept the mother’s position and made the following findings of relevance as a context to this hearing, namely:
a)in July 2014, for the purpose of preparing a family report, the report writer Ms M attempted to introduce the child to the father and the child “refused to be removed from her mother’s arms and refused to even acknowledge the father” (reasons paragraph 169);
b)for reasons extensively assessed (at reasons paragraph 236 to 256), his Honour concluded that “…I am not persuaded that the father presents as an unacceptable risk of sexual abuse to the child”;
c)whilst at the time Tree J accepted that the mother’s belief that the father was a risk to the child was a “genuine” belief he was not satisfied that the child spending time with the father “would significantly impair the mother’s ability to parent the child” (reasons paragraph 265 and 266);
d)there was a high risk that the mother will continue to seek to wholly deprive the child of any relationship whatsoever with her father or paternal grandparents (reasons paragraph 275); and
e)having decided it was in the child’s best interests that there should be orders that the father spend time with the child, the trial judge conceded that because he assumed the father would exercise his liberty to apply, the orders may only be “short lived” even though the orders were “final” orders. His Honour expressed the view the parties “will not (be) free to re-litigate the matters that have been determined”, because the mother will be bound by the findings made.
The history set out reveals, in my view, that little has changed in the dynamics in the parental arrangement and the expressed attitude by the child the child to her father in rejecting time with him in the over three years since Tree J delivered his reasons.
The dilemma now is frankly almost identical to that faced by Tree J when his trial finished although regrettably the situation is much more difficult for the child now (at age 9½ years) then it was when she was six years old at the last visit in September 2015. The findings I make demonstrate that to be the case, and why Dr J opines only extreme orders for the child are an option. How the only Court expert in the trial before me came to this conclusion, is explained by the next section of these Reasons.
Evidence of Dr J
The assessment made by Dr J was made not over one day of observations, but over a number of consultation’s because initially Dr J was engaged via a mental health plan “for the purpose of her conducting therapy to promote the child” the child being able to spend time with the father. This engagement arose from the Order of 25 May 2017.
The “therapy” involved:
a)one visit (on 24 August 2017) with the mother alone;
b)five visits (between 7 September 2017 to 24 October 2017) with the child and the mother; and
c)two interviews with the father (one by telephone).
As a result of an order made by Rees J on 2 November 2017, Dr J was ordered to prepare an expert family report. The report of Dr J reveals that, during the therapy process, she attempted to facilitate a telephone conversation between the child and the father which “resulted in [the child] leaving the room and running into the yard of the adjoining property”. The expert observed that the mother “was quite exacerbated with [the child’s] behaviour and was unable to encourage her to come back into the house” (paragraph 67).
It is not clear from the evidence if the event on 12 February 2018 was a “therapy” session or part of the process of gathering data for the expert report. I raise the confusion as Dr J’s report suggests the interviews on 29 March 2018 (with the mother, father and the maternal grandmother Ms S) were for the family report. The event of 12 February 2018 was significant and the full observation set out at paragraph 68 is recorded in these Reasons:
68. On 12th February 2018 when [Mr Grainger] was present as well, the child became quite distressed when in the room with her mother. She climbed over the furniture, tugged at the door knob and kicked the book shelf telling her mother she wanted to leave. She refused to respond to her mother’s attempts to engage her in conversation and defiantly answered ‘no’ when her mother asked her to use her words. [Ms Grainger] told the child that she was unable to understand what was happening for the child if she did not use her words. [Ms Grainger] mentioned that [Mr Grainger] had sent the child a book voucher with which she planned to buy a book on line for [the child]. [Ms Grainger] empathized with [the child] and told her she could see she was feeling frustrated and offered her a cuddle. [The child] responded that she did not want ‘stupid cuddles’. [The child] threatened that she was going to run out of the room to her grandmother which her mother told her was not safe to do. [Ms Grainger] seemed to become quite exasperated and at a loss to manage the child’s aggression. [The child] did eventually go downstairs to the waiting room where her grandmother was waiting and hid in the corner under a table. Her mother asked her to come out but [the child] said she would not until it was time to go. No attempts were made to introduce [the child] to her father.
The reaction of the child on 12 February 2018 was extreme and very troubling. Dr J said the child exhibited her intensive opposition to having contact with the father (even by Skype), by “glaring” and “exposing her teeth”, apart from running away. The mother struggled to manage the child’s behaviour according to Dr J, which I accept was the case. Because of the child’s involvement in home schooling, this even represents the last truly independent observations of the child before the trial commenced, save for an unsuccessful reunification on 29 March 2018 in the expert’s F Town rooms. On this last occasion, the child’s “really bad oppositional behaviour” resulted in the child being “huddled into the foetal position in the corner”.
During examination by the ICL Mr Holmes, Dr J confirmed that the need to consider extreme orders, was based on her view (at the end of therapy) that she saw very little chance of reunification between the father and the child. She as not optimistic that Mr BB (who she does not know) could achieve what she and Mr V were unable to achieve. When considering the orders that can be made, I again refer to the expert’s opinions in the competing residence applications, noting that Dr J made no specific recommendation.
The mother’s cross examination of the expert was directed more to the acceptance by the expert of the report from Autism Spectrum Australia dated 2 March 2017 (Annexure “G” to the mother’s affidavit). Dr J made the point that although she may be able to make a diagnosis of the child, that was not her brief. She observed some traits and behaviour consistent with Autism Spectrum Disorder but would not fully adopt the assessment in the circumstances.
Naturally, as Dr J was the only independent expert whose evidence was available and properly tested, the father had prepared carefully for his cross examination of the expert which was directed to the mother’s parenting deficits (as he sees them) in an endeavour to get Dr J to support a change of residence. During this cross examination Dr J opined inter alia that:
a)the child has not offered any reasons for her asserted fear of the father;
b)the child was observed to have a very tight intergenerational connectedness with the mother and maternal grandmother;
c)her concerns about home schooling arise from the fact it reduces the child’s “freedom of movement” outside the family system. As noted at paragraph 63 of the report, educational development is extremely important for her cognitive development;
d)although Dr J observed some behaviour consistent with Autism (e.g. repetitive behaviour and lack of emotion at times), if the diagnoses is correct, it is overlayed with so many other issues such as her anxiety and the parental conflict;
e)when challenged by the father to accept his view (shaped it seems by a significant amount of reading and research by him of literature around “parental alienation syndrome”), that the mother is alienating the child, Dr J was more cautious. She accepted the mother has demonstrated a lot of difficulty in facilitating time and there have been a number of “hick ups” that have resulted in the child spending limited time with the father. Dr J was not prepared to say whether the mother’s beliefs about the father which the mother claims is the basis for her “fears” have been overtly or covertly shared with the child, but she is aware of the mother’s views; and
f)although the literature identifies that one strategy to deal with “alienation” is to remove the child from the “alienating parent”, such strategies if considered as in the best interests of a child, has to be put into a context, and in this case there has been very little opportunity for the child to develop a relationship with the father.
Although Dr J was unable to reach a conclusion as to whether the child should live with the mother or the father, from paragraph 69 of the report Dr J evaluates data available to her within the matrix of the s.60CC(2) and (3) considerations.
When I do likewise below, I refer to some of the opinions expressed but I broadly agree with the expert’s opinions and reservations and give them significant weight. What is apparent now is, that a major issue of concern to Dr J was limiting the institution of further litigation. This is clear from paragraph 110 noted below. On the basis that Dr J leaves it to the Court to decide where the child should live, the recommendations at paragraphs 112 to 117 about parental responsibility and the need for intensive therapeutic support for the child and the parent she lives with is appropriate.
Considering that the Court has decided final orders must be made (and no party urged the Court to make further interim orders), the recommendation at paragraph 116 that the Department of Family and Community Services (“the Department”) intervene, is not appropriate. Certainly, it might assist the child (and the family more broadly) if the ICL was authorised to provide a copy of the family report and these Reasons for Judgment to the Department. I intend to so order so they at least have some background into the difficult dynamics which the child has to navigate.
Some critical contextual findings
The discussion which follows of the competing proposals within the matrix of the primary and additional considerations prescribe by the Act, should also be seen within the following specific findings on the evidence:
a)Tree J found at paragraph 275 of his Reasons that:
There is a high risk that the mother will continue to seek to wholly deprive the child of any relationship whatsoever with her father or paternal grandparents.
I find that the mother, because of a combination of factors such as her innate anxious personality; the influence of her mother; her retained belief that the father presents as risk to the child and a ready acceptance that the child’s words and opposition to spending time with the father, all make the father unable to genuinely support the child having a relationship with the father. Whilst intensive therapy for the mother may have assisted, it has not been undertaken by the mother consistently with a desired aim to facilitate and support the child spending time with the father. I have no confidence at all that the mother has the required insight into the effect of her behaviour.
b)I accept that the mother did suffer a severe illness requiring urgent surgery in early 2016. The untested medical evidence before the Court supports a finding, which I make, that the mother needs monitoring. However, I am not satisfied that her current condition (so far as the diagnosis is concerned) requires her to live as close to the D Hospital as she asserts. In my view the mother could live in Northern New South Wales and travel to Sydney as required;
c)Overall, the evidence does not support that the child would find it difficult to maintain schooling at a mainstream public school. Again, in the absence of any tested evidence of the child’s last teachers, the view taken by a Family and Community Services officer supporting the child remaining at school seems sound. The Court accepts that a parent is entitled to seek that a child be home schooled and must undertake formal application processes and maintain appropriate reporting to authorities of the child’s educational development. I accept the mother has done so – despite the father’s opposition to home schooling. I am not satisfied that the child’s recent challenging behaviour (whatever her diagnosis) justifies of itself, the mother’s decision to home school the child. I note that the maternal grandmother supports her daughter’s decision – perhaps reflective of her decision many years ago to home school the mother. The risks of and losses from home schooling, were identified by Dr J. I accept her concerns, which might be ameliorated if, as the mother and maternal grandmother sated, it is the intention to re-enrol the child when she has “caught up”. I do not hold much confidence that will occur, but I hope the future proves I am wrong;
d)I am not satisfied the mother, in some vindictive or calculated way is overtly “alienating” the child from the father – although from the father’s perspective I accept he genuinely believes that to be the case. As already stated, a combination of the mother’s lack of support; the child’s wishes and behaviour and the inability to achieve any momentum at all in maintaining any contact between the child and the father since the event in September 2015, all have made it extremely comfortable for the child to align her beliefs and feelings with that of the mother. At her age, it would take an extremely robust little girl to take on the mother and the maternal grandmother. This child has some vulnerabilities as I discuss next, and has simply shown no capacity at all to challenge her mother at this time. In my view however, it seems more likely than not, that such a time will arise in the future;
e)The mother relied upon two assessments, both of some age, to support her position that the child is an anxious and vulnerable child. I am prepared to accept she is – as the more recent assessment by Dr J, read as a holistic document, raises concerns. However the two assessments should be considered in light of the ongoing parental conflict and lack of positive involvement of a loving and caring father who was available. In respect of those assessments I record that:
i)The psychological assessment – made 15 July 2015 did not assess her “mental state” nor did the P Psychology clinician provide any form of counselling or intervention. The child’s overall cognitive skills could not be calculated, and the testing results varied, “due to the inconsistency in her engagement throughout the assessment process”. During the assessment, the clinician observed “the use of boundaries by the child’s mother were observed to have an inconsistent effect”. The assessment recommended further assessment. It is not clear why further assessment as recommended was not initiated by the mother, save for the assessment by Autism Spectrum Australia which I discuss next.
ii)The child was assessed on 2 March 2017 when almost 7½ years of age. The report suggests the referral to “Aspects Assessments” was made by a Paediatrician for a “comprehensive diagnostic assessment to determine whether or not the child’s presentation is consistent with a diagnosis of autism spectrum disorder.” At the time of the assessment, the child was enrolled in a support class at Q Primary School for three days a week and was attending J Primary School for two days a week. The father does not accept the conclusion reached by the assessment, namely that:
…The impression is that [the child] has difficulties across both areas of impairment. Her current presentation meets sufficient criteria for a DSM-5 diagnosis of autism spectrum disorder
and further that:
…[the child] will require substantial support in terms of her social interaction and social communication difficulties… (and) in terms of her restrictive and repetitive interests, activities and behaviour.
Although the report does not suggest that home schooling was the preferred option for the child, the mother’s concerns about the child’s behaviour at school (“meltdowns”) and school opposition combined to encourage her to home school. I am not satisfied that restricting the father to information about the child’s educational development (which would have been easier to access if the child continued in mainstream schooling) was a significant influence on the decision to home school, as the father contends.
f)I find that the father has both the capacity to meet the child’s physical needs and a genuine desire to meet the child’s social, emotional and psychological needs. He is a thoroughly decent human being. I was also impressed with the paternal grandmother. He has maintained a persistent engagement with the Court process and, sadly, in my view in hindsight the delays in the Court processes have not assisted;
g)It should also be noted that the intervention of the serious medical issue confronting the mother in February 2016 had a further major impact – particularly where the mother moved to the F Town area. When Dr J was engaged, the reunification simply could not be achieved. It was the ultimate conclusion reached by Dr J, that reunification cannot be achieved – causing the identification of “extreme orders” to be the only real option. I am satisfied that the father would be willing to do just about anything to have a relationship with his daughter. However such a genuine desire does cause him, in my view, to underestimate the challenges that the child would present if a change of residence would be ordered. I explore this concern further in these Reasons.
Primary and additional considerations
I chose to make some further findings, whilst adopting but not repeating earlier findings set out these Reasons:
a)I find it is of benefit to the child to have a meaningful relationship with the father – if it can be achieved. Such a relationship already exists between the mother and the child, as much as a reflection of her continued role as primary carer since separation, if not the level of her care;
b)Despite the fears expressed by the mother and maternal grandmother (and now shared and accepted at this time by the child), I do not find that the child is at any risk of physical, sexual or emotional harm in the father’s care. I do find that whilst the mother does not present as a risk to the child of neglect or physical harm, the mother’s behaviour and view of the father is likely to distort the child’s emotional wellbeing. The extent and affect upon the child and of the mother’s attitude and behaviour cannot really be assessed. History is littered with examples of children who developed into well-functional adults and citizens without input by one parent. However, as Dr J opines, and I accept, this is not the ideal situation when the other parent has the capacity to offer the child some balance and some love – as this father could in my view. Sadly, sometimes children have to wait until the independence which comes with adulthood before they are capable of developing a relationship with a parent who is not in their life (for whatever reason), during their infancy.
c)The wishes and feelings expressed by the child to Dr J (see paragraphs 79 to 82) confirm that she does not want to see her father, yet Dr J opines that “[the child’s] views probably mirror those that have been historically held by the mother and grandmother and have been conveyed to [the child].” I accept this opinion. I also agree that the child “still seems to wield an overwhelming and frightening amount of power” and that the child will not like being said “no” to, as Dr J said in cross examination. As a result, the wishes expressed by the child cannot be given determinative weight – even though the mother said to Dr J, that she “is critical that [the child’s] voice has not been heard” and that the child is frustrated because her views have “been ignored”.
d)Although Dr J indicated a degree of connectedness with the mother and an element of ambivalence, the child’s strongest relationship is with the mother and then the maternal grandmother. Sadly, despite all attempts, Court ordered and persistent efforts by father, the child does not have a relationship with him or his parents;
e)The father has been effectively denied, by the mother’s behaviour, from participating in making decisions about the child or spending time or communicating with her;
f)In circumstances where the mother’s decision (initially shaped by her need for medical attention) to live in the G Town area seems now to be permanent – some real practical difficulties and expense exist for the father (living in O Town) spending time with the child. The father’s proposal is, in my view, partly based on a likelihood that if the child were to live with him, then the mother would surely follow. The mother confirmed she would, in those circumstances, move to H Town. The maternal grandmother would also move, albeit reluctantly, even though she has recently purchased a home in the G Town area where the mother and child also live. Interestingly, the mother and maternal grandmother both say that they would not consider moving to E Town because of the father’s sinister influence alleged to be shared by others (unnamed) in the region. I have no doubt the father has more supporters in the area in which he has lived and worked for some time, but to attribute some sinister motives on these friends is without evidentiary foundation. In any event, it would have a coercive effect if the Court made an order for the child to live with the father, so as to encourage the mother to move closer to the father. I do not contend that the father’s orders are designed with that particularly in mind.
g)I do not make findings about the parents’ capacity and attitude to parenting beyond those already made, which I adopt for the purposes of s.60CC(3)(f) and (i).
h)There are no current family violence orders in existence and I am not satisfied that violence between the parents would necessarily erupt if the parents came into contact with each other.
making an order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view, the orders made by Tree J were described as final orders, but the effect of order 14 was to create only a short term process. It is unhelpful to speculate what would now be the situation for the child if, after the breakdown of the contact with the father around 11 September 2015, the Court’s attention had been reactivated. That was a critical time in my view but the history shows that by the time Le Poer Trench J suspended orders formally some two years later, the momentum (such as it was) had been extinguished.
The evidence does not indicate that a “further” interim order is likely to achieve a reunification. I agree with Dr J in this regard.
As a result, the mother’s proposal at Exhibit 10, is doomed to fail in my view. There was no evidence that Mr BB has the “key” to unlock this rigid position held by both the child, and her major influencer – the mother and the maternal grandmother.
The effect of a change of residence
It follows from what has been set out in these Reasons, that regrettably the Court is faced with two stark and “extreme” options, namely:
a)if the child lives with the mother, there is unlikely to be any change in the attitude of the mother and maternal grandmother to the father – wrongly held and destructive of the child feeling she is even able to explore a relationship with the father. The mother is likely to be highly vigilant and overprotective. She will meet her physical needs and will do her best to meet the child’s emotional needs. There is a likelihood without intensive counselling that causes a change in attitude for the mother, that her parenting style towards the child will create huge difficulties in managing the child’s behaviour. For these reasons I could not discount the real prospect that as the child approaches her teenage years, the mother may simply be unable to manage her – although I am sure she would do her best. The mother might, as she says, return the child to mainstream schooling, which on the evidence would be a good thing. The child presents now as a vulnerable child who is headstrong and wants (and usually now gets) her own way. She may well never challenge the current view she expresses that the father is a person to be “feared” – even if she is unable to articulate a cogent reason for this belief. My sense is, that at a later point in her life she will challenge that belief – and it could have a significant effect on her adult relationship with the mother. However, at this time, she is simply not ready to do so, and as Mr V opined over three years ago, there were difficulties in “transitioning this singular positive experience into an ongoing health relationship” with the father; and
b)a change of residence to the father will not only involve a change to a completely unknown and untested situation – where the child spends time with the mother of limited duration and even supervised – but to a father who, I assess, has little real understanding of the difficulties to be faced. I am not satisfied that with the journey this child has been forced to navigate, any amount of intense counselling will prevent a serious meltdown – perhaps with tragic consequences. The father will exert every ounce of effort and seek every professional assistance, but when a highly skilled psychologist like Dr J has reached a conclusion that reconciliation is not possible, I can hardly ignore that opinion.
Conclusion
The parties and anyone else who ultimately reads these Reasons will be struck by the strong criticisms of the mother I have made. If the mother had obtained and maintained some intensive therapy after the, no doubt, confronting observations of Tree J, who knows how the mother’s entrenched views may have changed towards the father.
If the test to be applied was that a poor parent should be “punished” and a patient parent who has done little wrong, should be “rewarded” – then a change of residence in this case would be a proper result.
However, as the High Court recently reminded us all in Bondelmonte v Bondelmonte [2017] HCA 8, that is not the test. The test to be applied and the question to be determined is what is in the child’s best interests.
I have found this a very difficult case, but on balance, with the findings already made, it is in the best interests at this time that the child should live with the mother and the mother should have sole parental responsibility for major long term issues. The lack of any communication between the parents and the findings already made satisfy me that applying the presumption is against the child’s best interests.
I cannot be satisfied that any attempt by Court order to encourage, force or coax the child to spend time with the father is likely to be successful. It pains me to say so, as Courts (by application of the principles set out in the Act) begin with that end in mind.
However, even if it could lead to the institution of contravention proceedings, I propose to order a range of obligations upon the mother which the father is encouraged to use for the child’s best interests that are designed to encourage an older the child to initiate contact in some form with the father.
The Court will never know what future contact will be, but I am satisfied that this is the best the Court can do at this time.
The father, in his final submissions (and I give him credit for the way in which he presented his case and conducted his cross examination), at one stage said that he had been asked “a lot over the last five or six years why I keep going”. I indicated that it was clear to the Court that he genuinely loved his daughter and wanted to be in her life – but not exclusively.
The mother seeks pursuant to s.68B of the Act various injunctions against the father. There is no evidentiary foundation to support the making of proposed orders 5(a), (b) or (c). At no time has the father attempted or threatened to take the child into his care. He is well aware of the consequences of doing so without Court order. Furthermore, s.121 of the Act provides penal sanctions if any party publishes material on public media or otherwise about these proceedings. It is not, in my view, appropriate in this case in the absence of any probative evidentiary foundation to use s.68B as a source of power for a restraining order in the form urged at order 5(a).
Furthermore, the mother seeks a specific order that the father spend “no time with the child”. In my view, in the circumstances of this case, such an order could be construed by others as the Court having made some adverse findings against the father. The Court has not done so. No prescribed order for the child to spend time with the father is the better style of order.
Certainly the view expressed by Dr J acted on the father’s conscience as the picture painted was somewhat dire, and, as he said he did not want “a 16 year old homeless drug-addicted pregnant girl appearing on my doorstop because her father wasn’t there for her”.
I am satisfied the mother (supported by her mother) although holding entrenched negative views of the father, will do her best to ensure this nightmarish outcome does not occur to the child.
For the reasons expressed, the parenting orders which appear at the commencement of these Reasons are in the child’s best interests.
Property/enforcement issue
Tree J did pronounce property settlement orders on 18 June 2015 delivering five paragraphs of reasons for the following property orders made:
22. That within 28 days of the making of these orders, that each party take all necessary steps and execute all necessary documents to cause the former matrimonial home situated at [T Road, O Town] NSW and being the whole of the land in title reference Lot …, Strata Plan …, to be sold by auction at the earliest possible date, at a reserve to be agreed upon between the parties and failing such agreement to be determined by the nominee of the President of the Real Estate Institute of NSW.
23. That should the property not be sold at auction on the first occasion or within 3 months from the date of these orders then the property be listed at not more than $255,000.00 with such amount to reduce by $10,000.00 each further period of 3 months the property remains on the market until it reaches $235,000.00 and should the property not be sold within 5 months the property be listed for another auction within 6 months from the date of these orders on the same terms and conditions as the sale terms and conditions referred to in Order 22 with a reserve price to be calculated in the same manner as the sale price referred to in Order 22 and the proceeds to be divided in the same way with each party to contribute equally to the cost of such auction.
24. That either party be entitled to bid at any public auction.
25. That pending the auction of the property that the rental income of the property be solely applied to the outstanding mortgage, and/or expenses relating to the property.
26. That pending the auction of the property, the parties can accept all reasonable offers, including any offer made by one party to the other to purchase their share of the property.
27. That the proceeds of the said sale be disbursed as follows:
(a) in discharge of the mortgage to the K Credit Union;
(b) in payment of all outstanding rates, and strata levies incurred on and from the date of these orders;
(c) in payment of real estate agent’s commission and fees and costs properly incurred in respect of which the father shall engage the real estate agent;
(d) in payment of all conveyancing costs and disbursements, including those incurred to date in respect of which the parties agree that M Solicitor have carriage of the conveyance of the property;
(e) that the balance be held in the Trust account of David Hunter Solicitor pending any determination by the Legal Aid Commission of NSW (“LAC”) as to assessment of contributions of the parties owed to LAC.
Within 14 days of LAC notifying the parties of any assessment made, the parties are to instruct David Hunter to disburse funds held in trust as follows:
(i) to LAC as per assessment/s made;
(ii) to the mother, an amount equivalent to 70% of the funds less the assessment made to LAC as to the mother’s costs;
(iii) to the father, an amount equivalent to 30 per cent of the funds less the assessment made by LAC as to the mother’s costs.
28. That other than as otherwise set out in this agreement the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
29. That the father and mother do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
30. That in the event that either party refuses or neglects to execute any deed or instrument, a Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
As his Honour explained, the Court was told the “property proceedings had been resolved”, but the agreed minute of order was not forwarded to Tree J as he anticipated. Apparently a dispute as to the liability to contribute to expenses running with the ownership of the property at O Town had arisen. At paragraphs 17 and 18 of the reasons delivered 18 June 2015, Tree J resolved that issue and pronounced the above orders.
Unfortunately, and in my view, contrary to the intention of Le Poer Trench J, when his Honour on 25 May 2017 ordered that:
1. The orders made on 20 April 2015 and 18 June 2018 are suspended pending further order.
the effect was construed at least by the husband Mr Grainger, that Orders 22 to 30 relating to property were also suspended. In my view, after hearing oral submissions, I am satisfied that the Court’s Order made 25 May 2017 should be amended under Rule 17.02(e) of the Family Law Rules 2004 as it was not the intention of the Court to suspend the property orders.
In the mother’s amended Initiating Application filed 18 May 2017, relied upon in these proceedings, no application for property orders – either by way of enforcement or, if purported to have given notice, under s.79A of the Act.
The Court noted at the commencement of the hearing that the Applicant sought some form of enforcement orders, but that no evidence was set out in the trial affidavit filed 15 December 2017 in support of such orders.
The unrepresented husband did not, unsurprisingly, seek any property orders.
It would have been procedurally unfair to expect any enforcement type proceedings to be permitted in this way against the husband. If the wife or the husband wish to take some action to enforce, vary or set aside the property orders made 18 June 2015, which now are in full force and effect, then they are at liberty to do so.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 11 February 2019.
Associate:
Date: 11 February 2019
APPENDIX ONE
That all prior parenting orders be and are hereby discharged.
That the child L born … 2009, live with the Mother.
That the Mother have sole parental responsibility for the child.
That unless otherwise agreed in writing between the parents, the Father spend time with the child as follows:
a)On the Sunday of the first weekend following the date of these orders for a period of two hours in the presence of W, psychologist in the F Town area at such place as Mr BB recommends; and
b)On the Sunday of the very next weekend following the date of these orders for a period of two hours in the presence of Mr BB, psychologist in the F Town area at such place as Mr BB recommends; and
c)Thereafter on the fourth Sunday of every month from 10am until 4pm in the F Town area in the same location as Mr BB recommended, or as agreed in writing between the parties, with the mother to take the child to the father and to collect the child after the conclusion of the father’s time; and
d)All such other times as may be agreed between the parties.
That the Mother be permitted to travel with the child to the United Kingdom.
That the Mother has full authority pursuant to section 11 of the Australian Passports Act (Cth) 2005 to apply to the Department of Foreign Affairs and Trade for an Australian travel document for the child.
That the Father be restrained from making application to the Australian Federal Police to place the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
APPENDIX TWO
That the child L spend time with her father in a supervised environment at such times and on such dates as can be arranged through the CC Contact Centre in Suburb N.
OR;
That the child spend time with her father:
a)Up to each alternate weekend if the father is in G Town for the purposes of such contact.
b)For one half of each school holiday such time to be spent at the father’s residence in Northern New South Wales.
OR;
An order that the child live with her mother, further that the mother have sole parental responsibility for the child, and, that the child spend no time with her father;
OR;
An order that the child live with her father, further that the father have sole parental responsibility for the child, further, that the child spend no time with her mother for a period of six months from the making of the orders (or such other time period as may be recommended by the Court’s Expert) and thereafter have supervised time with her mother on a fortnightly basis through a recognised supervised contact facility for a period of two years (or such other time period as may be recommended by the Court's Expert), with liberty to restore the matter to the List, to seek removal of the supervision component of the order thereafter. 12 week moratorium Mother to relocate to E Town supervised contact weekly move to unsupervised with therapy leading to weekend contact daytime to alternate weekends.
2
1