Hampshire and Jacobs

[2017] FamCA 561

FAMILY COURT OF AUSTRALIA

HAMPSHIRE & JACOBS [2017] FamCA 561

FAMILY LAW – CHILDREN – Interim orders – With whom a child spends time – Best interests of a child – Where the father makes an application that the child live with him in circumstances where he has spent no time with the child – Where the mother has failed to facilitate the father’s time with the child – Where it is in the best interests of the child to live with the father and spend time with the mother – Application allowed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Hampshire

RESPONDENT: Ms Jacobs

FILE NUMBER: ADC 3797 of 2015

DATE DELIVERED: 4 August 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms DuBarry

SOLICITOR FOR THE APPLICANT: Ballinger Legal

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Marciano Lawyers

UPON NOTING that the Contravention Application filed 10 May 2017 is listed for hearing on 30 August 2017

Orders

1. That paragraph 2, 3.1 and 4 of the orders made 27 October 2016 be suspended from 10 to 30 August 2017.

2. That during the period of suspension of the said order:-

   (a)The child B born … 2009 shall live with the father;

   (b)That at her election the mother do deliver up the child to the father  either from the child’s school at the conclusion of the school day on 10 August 2017 or at 5 pm on the same day at the Suburb C Police Station;

   (c)That if the child is not delivered up to the father as ordered THEN the mother do deliver up the child to the Manager of the Court Childcare Facility in the Family Court of Australia Adelaide Registry at 10 am on 11 August 2017 and that the Director of Child Dispute Services do cause the said child to be released into the care of the father;

   (d)That upon delivery up of the child the mother shall forthwith leave the precincts of the Family Court of Australia Registry;

   (e)That the father’s time with the child shall conclude upon the child being returned to her school on 30 August 2017;

   (f)That the mother will provide the child’s school uniform and any other necessary school requirements of the child to the father;

   (g)That the father will do all things necessary to cause the child to attend at her school during the period that the child lives with him;

   (h)That in the absence of the child being delivered up to the father as provided for herein THEN pursuant to section 67U of the Family Law Act 1975 (Cth) a Recovery Order shall issue addressed to the Marshall of the Family Court of Australia and all Officers of the Australian Federal Police Force and to all Officers of the Police Force of all States and Territories of Australia requiring them to find and recover the child and to return and deliver the child to the father and for that purpose, with such assistance as they require, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe the child may be found.

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 Hampshire & Jacobs 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 ADELAIDE

FILE NUMBER: ADC 3797  of 2015

Mr Hampshire

Applicant

And

Ms Jacobs

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Application in a Case filed 10 May 2017, Mr Hampshire (“the father”) seeks orders that B born in 2009 (“the child”) live with him and spend time with the mother as follows:-

   (1)During alternate weekends from the conclusion of school or 3 pm on Friday to the commencement of school or 8.30 am on Monday (or Tuesday if the Monday is a public holiday);

   (2)During the intervening week from the conclusion of school or 3 pm Thursday to the commencement of school or 8.30 am Friday;

   (3)For one half of the school holidays;

   (4)For time as specified on special occasions.

2. To better enforce the orders, the father seeks that the mother deliver the child up to the Suburb C Police Station and in the event of her failure to do so, he seeks that a recovery order shall issue pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”).

3. Contemporaneously with the Application in a Case the father also filed an application alleging contravention by Ms Jacobs (“the mother”) of various provisions of the order made 27 October 2016.  

4. On 30 June 2017 the mother filed an Application in a Case seeking that the orders of 27 October 2016 and 1 June 2017 be suspended, that the child continue to live with the mother and spend supervised time with the father at a children’s contact service.

5. The mother also seeks orders that would restrain the father from attending at the child’s school or any place of extra-curricular activity outside of the school location.

6. The Contravention Application was listed for hearing on 30 August 2017.

BACKGROUND

1. On 27 October 2016 an order was made by consent until further order that the parties have equal shared parental responsibility of the child, that the child live with the mother and spend time with the father as follows:-

   (1)During school term each alternate weekend from the conclusion of school or 3 pm on Friday to the commencement of school or 8.30 am on Monday (or Tuesday if the Monday is a public holiday);

   (2)During school term in the intervening week from the conclusion of school or 3 pm Thursday to the commencement of school or 8.30 am Friday;

   (3)For one half of the school holidays;

   (4)For specified periods on special occasions.

2. The orders provided for the father to communicate with the child’s school, attend school events to which parents are ordinarily invited and to participate in parent/teacher interviews, sports days and concerts.

3. The parties intended that following the completion of a parenting programme, they would then participate in a series of co-parenting mediation sessions with a view to reaching final agreement in respect of the ongoing parenting arrangements for the child.

4. By his application the father sought an extension of time with the child on alternate weekends and in the intervening weeks, alleging that he last spent time with the child on 26 January 2017.  The father’s affidavit sets out the occasions on which the child has not been made available to him.  The application and contravention application focus on the alleged non-compliance with the orders of 27 October 2016.

5. On 23 May 2017 a Registrar’s order listed the matter before me on 1 June 2017 which provided for the mother to file and serve a response and affidavit and that both the parties and their legal representatives were to attend the hearing.

6. On 1 June 2017 I indicated to counsel that I considered the contravention application should be heard and determined in priority to the application in a case (subject to the submissions of the mother’s counsel).  Following that intimation, the parties sought time to consider a resolution to the interim proceedings.

7. A consent order was made that provided for the following:-

   (1)That the mother be restrained from attending at the child’s school (other than to deliver the child to the school) on those days when the father was due to collect the child or when the child is in the father’s care.

   (2)That the mother shall ensure the attendance of the child on those occasions when the child is due to go into the father’s care unless the child is ill in which case the mother shall produce a certificate of sickness and deliver the child to the father at the D Service Station.

   (3)That the parties enrol at a children’s contact service with the intention that upon enrolment all handovers not taking place at school shall take place at the contact service or if not available then the nominated D Service Station.

8. The orders noted that the orders of 27 October 2016 shall resume as at 1 June 2017 and provided for makeup time.

9. The Contravention Application was listed for hearing on 30 August 2017 and the parties agreed that the father shall have liberty to apply on short notice in the event of non-compliance.

CURRENT PROCEEDINGS

1. The father relies upon his Affidavit filed 9 June 2017 which records that the child did not spend time with the father between 1 June 2017 and 8 June 2017.

2. The mother’s solicitor advised the father by email that the child was unwell and therefore not able to attend on the father on 2, 7 and 8 June 2017.

3. The father sets out his version of the events on 5 June 2017.  He alleges that he received a message from the mother to the effect that the child was not prepared to get out of the car and that he received no support from the mother in promoting compliance with the order.

4. The father relies upon a further Affidavit filed 28 June 2017.  Despite various attempts to have the child spend time with the father, he asserts that he has been unable to telephone the child pursuant to the orders and on various occasions that he was due to collect the child from school he was advised that the child was absent.

5. As at the date of the affidavit the father considers that there have been 55 nights when the child should have spent time with the father but did not.  Of additional concern is the report of the child’s attendance as reflected in annexure “SRH3”.  The concern is that many of the absences, in particular on occasions that coincide with the father attending the school pursuant to the order, are without explanation.

6. The overall summary is that for whatever reason the father has not spent time with the child since 26 January 2017.

7. On 30 June 2017 the mother filed an Application seeking to suspend the orders of 27 January 2016 and 1 June 2017.  The application is supported by an affidavit which sets out the efforts that the mother says she has made to promote the child’s relationship with the father.  It is the mother’s position that notwithstanding her best endeavours, the child is inexplicably opposed to spending time with the father.  Paragraph 34 of the mother’s affidavit the following appears:-

   34.[The child] told me that the father quizzed her as he would repeatedly enquire of her why she did not want to go with him.

   35.[The child] told me that the father would try and blame me for her not wanting to go with him.

   36.[The child] would also say to me “I might have a happy face” but a very sad face on the inside when I have to go with dad.

8. The mother confirms that since the last Court order of 1 June 2017 the child has been to school on only two occasions.  The mother indicates that she now is not able to have the child attend school and she reports that the child is refusing to attend school even on the days that the father would not be attending pursuant to the order.  The mother holds the view that the father is not genuine in wanting to spend time with the child but rather, is continuing the proceedings in order to “antagonise and make [the mother] incur further unnecessary legal fees”.

9. A summary of the mother’s position is that she considers the orders should be suspended until the child’s wishes can be expressed and she receives some counselling.

PARENTING CONSIDERATIONS

1. Consent Orders were made by the parties on 27 October 2016.  The orders were comprehensive and it is noted that each of the parties was represented by experienced counsel.

2. To the extent that the orders were the subject of amendment on 1 June 2017, those orders do no more than support the tenor of the original orders namely, that the child’s interests are served by maintaining a meaningful relationship with each of the parties but in the circumstances of the current interim proceedings, the father.

3. It is not alleged by the mother that the father has conducted himself inappropriately either as and from the orders of 27 October 2016, but in particular the orders of 1 June 2017.  Indeed it is not controversial that the child has not transitioned into the care of the father since 26 January 2017.

4. It is only by the mother’s Application in a Case filed 30 June 2017 that she now seeks to suspend orders in circumstances where no such application was contemplated following the initial orders and certainly not when she entered into the further consent orders on 1 June 2017.

5. I am required to consider parenting orders that promote and facilitate the best interests of the child.

6. In determining what is in the child’s best interests, I am assisted by reference to the primary and additional considerations in s 60CC of the Act. In particular, the primary consideration is the benefit to a child of having a meaningful relationship with both of the child’s parents. It can be assumed that by the provision of her consent in orders made 27 October 2016 and 1 June 2017, the mother considered that it was in the child’s best interests to maintain an ongoing relationship with the father.

7. There are no allegations in respect of the father presenting any risk to the child.  There is no suggestion that the child needs to be protected from physical or psychological harm arising from abuse, neglect or family violence.

8. It could not be said that the orders of 27 October 2016 and 1 June 2017 were cautious in terms of the arrangements for the child to spend time with the father.  The orders provide for extended periods both during school terms but also school holidays in both end of term and during the Christmas school holiday periods.

9. The mother asserts that the child is opposed to spending time with the father and has expressed a clear view that she does not wish to do so.  According to the mother, so trenchant is the child’s position that she is now refusing to attend school and as at the date of the mother’s application the child has attended school on two days only.

10. Whilst there is no direct evidence as to the child’s views, the father’s position is that when he did have an opportunity to speak to the child on one occasion he considered that the child’s behaviour was not consistent with her being reluctant to spending time with him but rather, that any attempt by her to do so was thwarted by the mother’s actions.

11. The father seeks to do no more than pursue his time pursuant to the orders.  It is what he considers to be the mother’s opposition and refusal to comply with the orders that promotes his application for a change in the child’s primary care.

12. The mother considers that the child’s anxiety about spending time with the father is because he was “physically and verbally abusive” to the mother when the parties were together.  The father denies any assertion of family violence and there is no evidence to support that contention. Moreover, it is inconsistent with the Consent Orders of 27 October 2016 and 1 June 2017.

13. The real concern is the mother’s apparent observation that upon the child returning from the father’s care on 26 January 2017 she had nightmares for weeks and would not leave the mother’s side.

14. It is also uncontroversial that the child was apparently not attending school. That position cannot be considered to be in the child’s best interests. 

15. There is no explanation as to why an application seeking to suspend the orders of 27 October 2016 was not filed by the mother until 30 June 2017.

16. Whilst no finding can be made, the father’s contention is that the mother’s behaviour is consistent with the mother’s lack of support for his relationship with the child.

CONCLUSION

1. The evidence does not support a finding that there is any behaviour on the part of the father which would support a suspension of the orders and for time with the father to be restricted to supervised time at a children’s contact service.

2. The mother appears unable to deal with the child’s behaviour and in particular to ensure that the child attends school.  There is nothing demonstrated by the father either after the orders of 27 October 2016 and certainly after the orders of 1 June 2017 which would provide an explanation for the child’s conduct.

3. I am not able to decide a dispute on the evidence, but I am able to find the following:-

   (1)That it is in the best interests of this child to have a relationship with the father.

   (2)That the orders of 27 October 2016 and 1 June 2017 provide for the child to spend extensive time with the father.

   (3)That the orders were made by consent and in circumstances where it is reasonable to assume the parties considered that the orders would represent the child’s best interests.

   (4)That the child does not attend school and there is no assertion by the mother that she is likely to succeed in having the child return to school.

   (5)There is no evidence that the father presents as a risk to the child, or that it is his behaviour which explains the child’s alleged refusal.

   (6)That notwithstanding the assertions of the mother, she took no steps to seek a variation or suspension of the orders notwithstanding she alleges that there were matters raised by the child in January 2017.

   (7)That unless the relationship between the father and the child is resumed, given that he has not spent time with the child since 26 January 2017, there is a real risk to the child of psychological harm in not spending time with him resulting in the potential for significant disruption to the relationship between the father and the child.

4. In circumstances where the mother is not able to manage the child’s conduct both in terms of school attendance and spending time with the father, consideration is to be given to a change in the primary care arrangements for a sufficient period of time that will enable the father to re-engage the child at school and re-establish a relationship with her.

5. Given the importance and urgency of re-establishing the relationship and normalising the child’s attendance at school, an opportunity should be given to the mother to deliver up the child to the father, that the child would spend an extended period with the father during which period the orders of 27 October 2016 and 1 June 2017 would be suspended.

6. If the mother is not able to effect the child transitioning from her care to the father then a recovery order is required notwithstanding that it is an option of last resort.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 August 2017.

Associate:

Date:  4 August 2017