Grey and Brockwell

[2020] FamCA 517

FAMILY COURT OF AUSTRALIA

GREY & BROCKWELL [2020] FamCA 517

FAMILY LAW – CHILDREN – Where interim orders were agreed between the parties with the exception of two minor matters still in dispute – Where complaints were made that the mother exposed both children to the risk of sexual abuse – Where the eldest child is not spending any time with the mother – Where the youngest child is spending a maximum of two and a half hours with the mother each week – Where the intent of the orders are to improve the mother’s relationship with the children – Order that the youngest child spend two and a half hours with the mother – No order restraining the mother from driving with the youngest child when in her care.

Family Law Act 1975 (Cth) ss 60CC, 65L

APPLICANT: Ms Brockwell

RESPONDENT: Mr Grey

INDEPENDENT CHILDREN’S LAWYER: Ms Collier

FILE NUMBER: CSC 677 of 2011

DATE DELIVERED: 26 June 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns via Microsoft Teams and telephone

JUDGMENT OF: Tree J

HEARING DATE: 15 and 16 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITORS FOR THE APPLICANT: MK Family Law

COUNSEL FOR THE RESPONDENT: Ms Lawrence

SOLICITORS FOR THE RESPONDENT: Reaston Drummond Law

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Page QC

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Collier Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. All previous orders be discharged save for those relevant to the appointment of the Independent Children’s Lawyer (“the ICL”).

2. Pursuant to section 65L of the Family Law Act 1975 (Cth) the Senior Family Consultant for North Queensland is to arrange for a family consultant to be appointed to assist the parties to comply with and carry out these orders, and to supervise their compliance.

Live with

1. X and Y (“the children”) live with Mr Grey (“the father”).

Spend time

1. Y spend time with Ms Brockwell (“the mother”) for 2.5 hours each Friday between the hours of 4.45pm and 7.15pm. Unless otherwise agreed between the parties, changeover shall occur at the B Centre.

2. The parties shall encourage X to spend time with the Mother.

3. Y shall FaceTime his mother each Tuesday at 7.30pm.  The father shall ensure Y calls his mother, and then give Y and his mother privacy during the call.

4. The father shall notify the mother as soon as possible, but in any event no later than 2pm the day prior to Y’s football games, of the date, time and place of Y’s football game and the mother shall be at liberty to attend and watch Y’s games.

5. Y be at liberty to take his phone with him when spending time with the mother, provided that the father is restrained from instigating contact in any form with Y by telephone when he is spending time with his mother.

Therapy

1. The mother undertake targeted therapy with Ms C Psychologist to include but not be limited to, dialectical behaviour therapy.  For the purpose of this order:

   (a)Prior to the mother undertaking counselling with Ms C, Ms C be provided with filed affidavits from Ms D, Ms F, Dr G, Dr H and both parents’ trial affidavits.

   (b)After the mother has undergone at least 5.5 hours of therapy with Ms C, the ICL will request the mother’s therapist to provide a report outlining: 

   (i)The dates and time that counselling has occurred;

   (ii)Any recommendations including recommendations for further therapy prior to the mother engaging in family therapy with the children.

   (c)Other than the report stipulated in these orders, the counselling shall be confidential and not subject to subpoena by the court.

2. After the mother has undergone at least 5.5 hours of therapy with Ms C, and upon Ms C advising the ICL that the mother is ready to undertake family therapy:

   (a)The parents and children shall attend for family therapy on a psychologist nominated by the ICL from a panel of two provided by each the mother and the father, at all such times as is recommended by the family psychologist, and not necessarily together, with the view of attempting reunification counselling between the children and the mother;

   (b)      For the purpose of the above paragraphs:

   (i)The parties shall share equally in the psychologist’s cost of conducting the family therapy;

   (ii)The mother and father shall follow all reasonable directions and requests of the psychologist.

3. Conditional on the above paragraphs being complied with, the children and mother then spend time together as follows:

   (a)      For a period of 8 weeks:

   (i)Each alternate Saturday from 9am to 12pm;

   (ii)Each other Wednesday from the conclusion of school (or 3pm if a non-school day) to 6pm, with changeover to occur at B Centre if it is not a school day.

   And then:

   (b)      For a further period of 8 weeks:

   (i)Each alternate Saturday from 9am to 4pm;

   (ii)Each other Wednesday from the conclusion of school (or 3pm if a non-school day) to 6pm, with changeover to occur at B Centre if it is not a school day.

4. In the event X’s dance time coincides with time she is to spend with the mother, the father will arrange substitution of the time at a mutually agreeable time.

Restrictions

1. Neither party shall physically discipline the children when the children are in their care.

2. Neither party shall:

   (a)Denigrate the other party or their family to or in the presence or hearing of the children and each party shall use their best endeavours to ensure that no third party denigrates the other party or their family to or in the presence or hearing of the children;

   (b)Discuss adult issues in the presence or hearing of the children;

   (c)Neither party shall bring the children into contact or allow them to speak to or with Mr J.

Other Orders

1. Each party shall keep the other informed of their residential address, landline, email and mobile telephone numbers at all times and advise the other immediately of any change to these details.

Liberty to apply

1. The parties and the Senior Family Consultant for North Queensland have liberty to apply in relation to the terms of these orders and the Senior Family Consultant may seek to have the matter re-listed.

2. The matter be listed for Mention Only on Thursday 29 October 2020 at 2.15pm by way of Global Meet Telephone Conference save that the parties have liberty to jointly approach the Chambers of Tree J to administratively adjourn that mention if they are so agreed.

NOTATION:

A.To enter the Global Meet Telephone Conference, please dial:

…

Then when prompted, please dial the pass code:

…#

Please dial in 5 minutes early and wait quietly until you matter is called on by the court officer. 

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 Grey & Brockwell 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 CAIRNS VIA MICROSOFT TEAMS AND TELEPHONE

FILE NUMBER: CSC677/2011

Ms Brockwell

Applicant

And

Mr Grey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to the parties’ two children, X, presently 13 years of age, and Y, presently 10 years of age (“the children”). The matter was listed for a trial estimated to run for four days commencing on 15 June 2020, however at the outset, notwithstanding the somewhat extreme primary positions advanced by both parties, they recognised that in fact final orders were unlikely to be able to be pronounced, for reasons I shall shortly explain.

2. Ultimately on 16 June 2020 the parties agreed a substantial number of interim orders, designed to last for at least four months. However two matters remained in dispute between them, and I heard submissions in relation to those and reserved my decision. This is that decision and the reasons for it.

Background

1. Mr Grey (“the father”) was born in 1976, and hence is presently 43 years of age. Ms Brockwell (“the mother”) was born in 1979, and hence is presently 41 years of age. The parties commenced a relationship in November 2005, and separated on 29 October 2011. At that time X was five years of age, and Y had just turned two.

2. On 13 August 2012, final orders were made in the Federal Magistrates Court in Cairns providing for the parties to equally share the care and responsibility for the children, under orders which saw the children spend two blocks of time with each parent in a fortnight.

3. In November 2012, the mother commenced a relationship with a Mr L. It appears that relationship involved family violence, and may have involved some sexualised conduct by Mr L towards X. At all events that relationship concluded in about 2014, and ultimately Mr L passed away by his own hand in June 2016.

4. By then the mother had commenced a relationship with a Mr M. It transpired that Mr M had a sexual interest in children, and may have been inappropriately observing at least X. Ultimately the mother located child pornography on Mr M’s computer, and contacted police. Police raided the home, and located unlawful images. The relationship then ceased.

5. Thereafter both children have had the benefit of psychological counselling. In the course of this X has made disclosures which have resulted in mandatory reporting. A common theme are X’s complaints in relation to the mother’s relationship with Mr M, and particularly that she exposed both children to the risk of sexual abuse, and, at least according to X, prioritised her relationship with Mr M over her care of the children.

6. There is another theme in both children’s narratives relating to the mother’s regular nudity within the home environment where the children were living, which both children take exception to.

7. These proceedings were commenced by the mother on 31 March 2017. On 29 August 2019 interim orders were made which reduced the mother’s time with the children, who thereafter resided primarily with the father. However the children’s relationship with the mother has thereafter steadily deteriorated. Indeed X no longer spends any time or communicates with the mother, and on the most recent occasions when she has seen her mother, she has been abusive to the point of violent towards her.

8. Y is still spending something in the order of one and a half hours to two and a half hours per week with the mother, although he has demonstrated increasing reluctance to do so, in part because he has become worried that the mother may seek to abduct him on those visits, and hence has refused to travel with her in a car, and insisted that they take place in public locations.

THE PARTIES’ POSITIONS

1. At trial, the mother’s primary position was that Y should move into her primary care, and spend no less than one night per week with the father, whilst X should live with the father and spend not less than one night per week with her. This was not a recommendation that had been advanced by any of the expert witnesses in this case, and even if such an order were made, the potential impact of it upon the children inevitably meant that it would need to be reviewed, and hence final orders could not have been made.

2. On the other hand, at the commencement of the trial, the father sought orders that neither child spend time nor communicate with the mother. However a little confusingly, in the case outline which he filed on 8 June 2020, much of the father’s argument was directed towards his alternative position, namely that there should be interim orders for a period designed to try and reinvigorate the mother’s relationship with both children. That is ultimately the path down which both parties travelled in agreeing the interim orders before me.

3. The substance of those orders were that both children would live with the father, and Y would continue to spend time with the mother each week, and have some electronic communication with her as well.

4. The orders then contemplated that the mother would undertake a particular species of therapy from a psychologist, for at least 5.5 hours, and providing that occurred, and that the therapist has advised the Independent Children's Lawyer that the mother was ready to do so, then the parents and the children would embark upon family therapy “with the view of attempting reunification counselling between the children and the mother” (Order 10(a)). At that point, the mother would resume spending time with both children for a total of six hours per week, and then, after a further eight week period, that time would increase to ten hours per week.

5. The matters left in dispute between the parties were slender in the extreme. The first is whether Y should spend one and a half hours, or two and a half hours, each Friday after school with the mother. The second was whether during the time that Y spends with the mother, she should be restrained from driving with him in her car. Indeed the matters were so minor that the Independent Children's Lawyer preferred to make no submissions in relation to them.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

1. Ordinarily I would, in a judgment such as this, refer to the relevant statutory provisions, and some leading cases in relation to parenting proceedings generally, and the determination of interim parenting disputes more specifically. However given the very slender nature of the dispute between the parties, other than requiring that my decision be in the children’s best interests, (or more specifically, Y’s best interests) neither the provisions of s 60CC of the Family Law Act 1975 (Cth) nor any authorities particularly bear upon the resolution of the matters that I am required to determine. However I remain mindful of those provisions and the relevant authorities.

ONE AND A HALF OR TWO AND A HALF HOURS

1. At present, the orders made on 29 August 2019 in the Federal Circuit Court, required both children to spend “a period of up to 2.5 hours NOTING THAT this time can be longer if agreed between the parties and necessary for the outing” save that it is to be “[i]n a public place in and around P City”.

2. Counsel for the mother said that, notwithstanding the extent of time afforded under those orders, in fact on occasion the mother has not utilised the full two and a half hours, nor indeed sought it, but rather only sought one and a half hours. However I must say I have difficulty in understanding how that informs the dispute between the parties. The mother has demonstrated flexibility and some degree of sensitivity in relation to Y’s disinclination to spend time with her, and has adapted her proposals, it seems, reflective of that.

3. The critical issue, it seems to me, is that the purpose of this order is to enable Y’s relationship with the mother to at least subsist at its present level, and perhaps improve. Inevitably, if the relationship is to improve, there will likely need to be activities engaged in between the mother and Y which are of interest to him. Given that the parties are agreed that Y’s time with the mother should commence at 4.45pm each Friday, those activities are necessarily going to be limited. However as I identified during the course of argument, by extending the time until 7.15pm, it will give the mother and Y the opportunity to share an evening meal together. That seems to me to be a desirable and somewhat organic connection which, if at all possible, should be facilitated.

4. Of course, as she has done to date, the mother may not seek to avail herself of a full period of two and a half hours, particularly if doing so is proving to be counterproductive. However it seems to me that the prospect of the mother and Y doing some activity on a Friday evening, and then consuming the evening meal together, is an opportunity that should be afforded to them, as it may progress their relationship from purely activity based, to a natural, more family encounter, such as sharing a meal.

5. I am well satisfied that the order as to the extent of time which Y spends with the mother on a Friday evening should be two and a half hours. Such an order is clearly in his best interests.

CAR OR NO CAR

1. The father sought a restraint on the mother being able to drive Y anywhere during the time that he spends with her.

2. It is clear that Y has developed a fear of driving with the mother, which is acknowledged by the mother herself. He is apparently troubled that she may, in effect, kidnap him and remove him from the father’s care. Nothing in the evidence provides any logical reason for Y thinking that, nor is there, in the evidence, any suggestion that the mother has ever intended to kidnap either of the children. It seems to me that if there is an order restraining the mother from driving with Y during the time she spends with him, and Y were to come to learn of that order, then it may further cement his seemingly irrational fear.

3. Moreover, I am troubled that to require the mother and Y to spend two and a half hours in one location on a Friday afternoon and early evening, is unduly restrictive. As I said to the parties during the course of argument, even assuming that the mother was spending time with Y at a public location, for instance N Centre in P City, the prohibition which the father seeks would restrain her from driving even a short distance from wherever she may be spending time with Y, to a restaurant to enjoy an evening meal together. To my mind, particularly given that I am persuaded that it is in the child’s best interest that the length of time he spend with the mother be two and a half hours, on a Friday evening, such a restriction is at best clumsy.

4. Again it needs to be understood that these orders are intended to be, in effect, therapeutic, in that they are informed by the hope that the mother’s relationship with both children will be able to improve. Assuming that there can be some relatively swift improvement, it would be unfortunate if any further progress were restricted by the prohibition of any activity whatsoever that involves motor vehicle travel.

5. I am well satisfied that there should be no order restraining the mother from driving with Y during the times that he is in her care.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment. For the sake of convenience, I have incorporated all orders into one document without identifying those which are by consent, and those which are not. These reasons readily make it apparent which order (namely Order 4) incorporates a component which is the subject of determination.  

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 June 2020.

Associate:

Date: 26 June 2020