Harlow and Astin

[2008] FamCA 634

FAMILY COURT OF AUSTRALIA

HARLOW & ASTIN [2008] FamCA 634

FAMILY LAW – CHILDREN—Mother unilaterally attempting to stop child attending speech and drama lessons—Father has sole responsibility—time spent with Mother suspended— family report—orders to that effect made

APPLICANT: Mr Harlow

RESPONDENT: Ms Astin

FILE NUMBER: BRC 5262 of 2008

DATE DELIVERED: 16 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 16 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Waller, solicitor appearing for the Applicant Father

SOLICITOR FOR THE RESPONDENT: No appearance by the Respondent Mother

Orders

ON THE EX-PARTE APPLICATION OF THE FATHER PURSUANT TO PARAGRAPH 9 OF THE ORDER OF JUSTICE BARRY DATED 26 JUNE 2006 AND UPON HEARING Mr Waller, Solicitor appearing for the Applicant Father

IT IS ORDERED THAT:

1. Leave be given pursuant to paragraph 9 of the Order of Justice Barry dated 26 June 2006 for an application for final Orders be made under Part VII Family Law Act 1975.

2. The proceedings be adjourned for case management review to 10.00 am on 28 August 2008.

3. The Mother to file and serve an affidavit within fourteen (14) days of service of the application and accompanying material upon her, such affidavit to be limited to a response to paragraph 54 of the Applicant Father’s affidavit filed 11 June 2008 including a response to the matters raised in annexures 13 and 14 of that affidavit.

4. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Paragraph 2 of the Order of Justice Barry dated 26 June 2006 be suspended.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5262 of 2008

MR HARLOW

Applicant

And

MS ASTIN

Respondent

REASONS FOR JUDGMENT

1. This matter has been in the litigation process for some eight years.  The parties’ child, a daughter, is only 10, so for the greater part of her life she has known nothing but ongoing conflict between her parents.  There was an eight day trial, as I recall, before Monteith J.  The mother made very serious allegations of sexual abuse against the father.  Monteith J looked at the matter, presumably in considerable detail, after an eight day trial and made a decision the child was to live with the father and, I think, put in place very limited orders for contact.

2. The matter was then litigated, once again, before me in mid-2006.  There was an independent children's lawyer appointed.  Each party was represented by experienced counsel.  On the second day of the trial consent orders were entered into.  I believe that up until that time because of the mother's conduct, there had been an extensive period of supervised time at a contact centre.  I am told that that went on for some two years.

3. So from about 2004 to 2006, there had been supervised time.  Here was the mother's chance to have unsupervised time.  It was a progressive increase. Initially, it was Saturday from 9.00 am to 5.00 pm.  Then it built up to its present form of alternate weekends Friday afternoon until Sunday afternoon.

4. The child resides with the father at Son Queensland's Gold Coast.  The mother resides in reasonable proximity at M.  The child was home schooled for reasons given by the father for the last school year.  This year she was attending H Private School at S.

5. There was a term in the order (paragraph 9) that neither party was to file any further application in relation to parenting orders without first obtaining the leave of the Court to do so.  I suspect that that provision was put in because of concerns about the mother's ability to litigate.  I have not looked at the file for some time.  I do not make any conclusive finding on that aspect suffice it to say that the evidence was redolent at the time of the trial with the examples of the mother making false complaints, embarrassing complaints, trivial or banal complaints and some very serious complaints.  It had been an ongoing process. 

6. That was one of the concerns.  The other concern was the mother's capacity to litigate.  More recently, there had been a series of some, as I recall, about 25 or 30 contraventions filed by the mother.  I directed that she could proceed on a limited number of contraventions.  There was about eight in number, I recall.  I dismissed all those.  She then appealed and that appeal, in turn, was dismissed. 

7. Now, the father, on 11 June this year, files an application seeking, effectively, that the order for time spent by the mother with daughter be suspended and that Mr M be appointed to prepare a family report.  I have had regard to the detailed affidavit of the father and the assistance of written submissions referred to various transcripts, in particular, the transcript of 27 June when I addressed the mother and that's replicated at page 2 of the written submissions but the major complaint, at this point in time, is that the child having now attended H School is wanting to do speech and drama.  The teacher is a Ms S.  The child had previously attended Ms S and I heard detailed evidence about this when I was dealing with the contraventions.  The mother was to take the child to Ms S’s class and failed to do so.

8. I think on one occasion, the father started doing, then the mother, as I recall, became quite abusive of Ms S and Ms S had indicated that she would have no further dealings with the mother. 

   RECORDED  :  NOT TRANSCRIBED

9. My attention is drawn to a report, a phone note message from the H school and that's to be found at SH13, where the mother telephoned threatening legal action if there was ongoing communication by Ms S with the child.  I note that under the terms of the orders made at paragraph 10 of the consent orders, the father is to be responsible for the child's long term care, welfare and development including issues relating to her education.  Presumably, the mother has not paid any attention to that and, without any consultation, has made this phone call and lodged the complaints and made the threats.

10. I note that the mother is reported as saying she would like to keep her complaints low key.  It seems that the mother is unilaterally trying to stop the child attending these speech and drama lessons on the basis that Ms S gave the child a bad report.  I note, somewhat alarmingly, that there is a letter from the head of school at H School dated 26 May to the effect that he interviewed the child with the head of the junior school and the child said that her mother had held her down on the ground with some force until she was willing to write a letter for her mother declaring that the child wanted to stop lessons in speech and drama.

11. This conduct by the mother requires explanation.  It is recent.  It is concerning.  My attention has been drawn to the remarks that I made back in June of 2006 warning the mother about making official or even unofficial complaints about the father's care of the child but this also goes to a wider issue with interfering with the child's education where the father has been given sole right and responsibility in relation to that issue.

12. It is always a very serious step to stop a parent seeing a child.  I have canvassed the prospect of ordering some supervised contact in the meantime but it seems to me by the time they enrolled in a contact centre having regard to the period of time I proposed to adjourn the matter, it will be virtually a non-event in that there would only be one or two periods of fairly brief weekend contact.

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

13. I can indicate that if the mother should convince me that there is no merit to the complaints the father has made, I would certainly look at make up contact time for her.  The suspension of contact is only for six weeks.  I have noted the interview with Ms C who appears to be well qualified.  She is a reg. 8 counsellor.  She is an authorised family consultant pursuant to the Act. 

    RECORDED  :  NOT TRANSCRIBED

14. For the present purposes, I accept the assurances given and it is, for some extent, independent and it saves the judge having to interview the child so at this point in time, I will put those orders in place.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  16 July 2008