Harris and Daniels

[2016] FamCA 951

FAMILY COURT OF AUSTRALIA

HARRIS & DANIELS [2016] FamCA 951

FAMILY LAW – CHILDREN – orders suspended – children to spend time with the father. –
FAMILY LAW – PROCEDURE – Independent to be appointed – production of Family Report.

APPLICANT: Mr Harris

RESPONDENT: Ms Daniels

FILE NUMBER: WOC 723 of 2012

DATE DELIVERED: 16 September 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 9 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms L Gaetani (Coutts Solicitors)

SOLICITOR FOR THE RESPONDENT: Dr J Behrens (Dobinson Davey Clifford Simpson)

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Orders 3, 4, 5, 7, 8 of the orders of 6 December 2012 are suspended.

2. The children, B, born … 2002, and C, born … 2005, are to spend time with the father as follows:

   a.Each Sunday from 11am until 5pm commencing 25 September 2016.

   b.The time with the children is to be supervised by either or both of Ms D and Mr D, or such other person as may be agreed in writing between the parties.

   c.The handover point at the commencement and completion of each of the visits is the E Town Park, or such other place as may be agreed in writing between the parties.

3. 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.

4. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for B, born … 2002, and C, born … 2005, and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

5. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory forthwith copies of all documents thus far filed by them in these proceedings.

6. I direct that a Family Consultant nominated by the Manager Child Dispute Services conduct a Child Inclusive Conference and prepare a report for the Court, such report to deal with matters relevant to the best interests of the children but in particular the nature of the children’s relationships with each of the parties, the nature of the relationship between the parties and any views that may be expressed by either of the children. 

7. The Family Consultant is at liberty to have regard to the Applications, Responses, Notices of Child Abuse, Family Violence or Risk of Family Violence, and Affidavits filed by the parties in 2016, along with any material that may be produced on subpoena.

8. I direct Mr Harris and Ms Daniels to attend an appointment with a Family Consultant on 16 November 2016 at 9:30am at the Canberra Registry of the Family Court of Australia for the purpose of participating in a Child Inclusive Conference and the preparation of a report in relation to that conference.

9. I direct that Ms Daniels is to arrange for the children, B, born … 2002, and C, born … 2005, to attend upon the Family Consultant on 16 November 2016 for the purpose of participation in a Child Inclusive Conference at a time to be advised by the Family Consultant.

IT IS NOTED THAT

1. Should either of the parties fail to comply with Orders 8 and 9 the Family Consultant is obliged to report such failure to the Court and the Court may make further orders as it considers appropriate. 

IT IS FURTHER ORDERED THAT

1. The matter is otherwise adjourned to 15 December 2016 at 2:15pm for further directions and, potentially for further hearing of interim matters.

2. In the event that either party seeks a change to these interim orders on the next date, that party is to file and serve an Application and supporting Affidavit no later than 1 December 2016 and any responsive material is to be filed and served no later than close of business 8 December 2016.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: WOC 723 of 2012

Mr Harris

Applicant

And

Ms Daniels

Respondent

REASONS FOR JUDGMENT

1. The current orders do not represent the current state of affairs regarding the children.  The children have not seen their father since March 2014 and there has been no telephone time since March 2016.  The orders which were made by consent on 6 December 2012 provided, amongst other things, for alternate weekend time and school holidays.  The father accepts that it is appropriate that those orders regarding his time with the children be suspended and, hence, I will suspend orders 3 to 8 of the orders of 6 December 2012.  The proceedings involve the issue of the father’s relationship with B who is aged 14 and C who is aged 11.  As I said, final orders were made on 6 December 2012.  Proceedings were instituted by the father on 21 July 2016.

2. The context of these proceedings is that the father is not seeing the boys.  His orders seek increasing time commencing with weekly time and increasing from there.  The mother opposes any time between the father and the boys at this stage.  Each of the parties points primarily to the father’s relationship to the children in determining the proceedings at present.  The mother points to deficiencies in respect to the father and points primarily to the special needs of the boys who are on the autism Asperger’s spectrum.  She points to resistance on the part of the boys to spending time with their father and potential damage that might flow to their relationship with their father if they are forced to spend time with him.  She further points to the need for expert involvement.

3. The father expresses a desire for a relationship with the boys and asserts that the mother is currently poisoning the relationship with the boys.  Despite there being orders for equal shared parental responsibility, neither party – either pursuant to the consent orders that were previously entered into nor pursuant to their applications now – seeks either equally shared time or substantial and significant time.  Neither party asserts that orders to do so would be in the children’s best interests.  Given that the father has not spent any time with the boys for a significant period of time, I can readily conclude that it is not in their best interests that they spend either equal or substantial and significant time with the father.  In terms of the s 60CC factors, that is, the matters that I must take into consideration in determining what is in the best interests of the boys being what determines the orders that I should make now, the primary issues here relate to the relationship with the father and the benefits that the boys might derive from it.

4. Some concerns in relation to the father’s capacity to care for or keep the boys safe arise, although these have little significance at present because of the nature of the sort of orders that are immediately sought by the father.  The primary focus of the dispute is on how the boys might react to spending time with their father;  would forcing it be counterproductive;  would refusing it cement a negative arrangement?  I was very carefully taken through the evidence by the mother’s legal representative, Dr Behrens.  She focused upon those matters which bore upon the resistance of the boys, which was the matter that the mother perceived as being of the greatest immediate importance.  There is a background which involves violence, especially in the time following the end of the relationship.

5. That is not such as to indicate that there is a current risk of exposure to family violence.  The mother points in particular to the special needs of the boys.  At paragraph 44 she says her position is that she does not wish to force the boys in relation to the father.  At paragraph 160 she notes a feature of the boys is their rigidity, particularly that of C.  At paragraphs 86, 88 and 89 she gives evidence of the time leading up to the last time that the boys spent with their father.  B she records as being upset by a sleeping arrangement whereby he was not provided with a bed and C being resistant to spending time with his father on 14 February 2014, but, despite that resistance, C attending.

6. At paragraph 117 she points to May 2015, that B did not wish to go to the father’s wedding.  At paragraph 131 she points to March 2016 and a telephone discussion between the father and B about why B did not want to come and see him and at paragraph 181 makes a general assertion of refusal by B.  When I was taken to the specific examples that were supported by evidence to explain the concern in relation to resistance, I found it unpersuasive that the resistance outweighed the significance on an interim basis of gaining benefit by some form of meaningful time between the father and the boys to promote a meaningful relationship.

7. The father expressed that he was prepared, in order to spend time with the boys, to travel from Sydney to the ACT region each week on Sunday between 11 am and 5 pm.  He indicated further that he was prepared to accept supervision.  The mother, although disagreeing with any time, said to the Court that if time was to be ordered she would ask that it would be supervised and that it would be supervised by her parents who were present in Court.  They indicated a willingness to travel from Sydney to supervise that time.  The father, at the same time, indicated a willingness to accept those terms.  Although I do not expect that supervision is necessary for the safety of the boys, I am hopeful that in an environment that sees one or either of the grandparents present will make the time both more acceptable to the mother and easier for the boys to adjust to.

8. In relation to the question of the application of some expertise to what should happen in this case, a child inclusive conference can be prepared in this registry in early November 2016.  The mother has indicated that she would prefer a more fulsome assessment.  However, pending final determination, a child inclusive conference will provide the Court with a much better set of evidence than is presently available as to what the appropriate arrangements might be for the boys given the gap that has occurred in their seeing their father and given the mother’s concern that they will be resistant to spending time with him.  Considering the s 60CC factors, I conclude that the best interests are not served by withholding the boys from time with their father when a limited, safe arrangement is available.

9. Further, in considering the principles in conducting child-related proceedings, a child inclusive conference will allow the Court to have evidence regarding the boys and their interaction with the father and the mother and the nature of the interaction between the father and the mother in order to enable the case to progress to final hearing and, particularly, to enable me to understand how the conduct of the proceedings may affect the children, and to further promote child-focused parenting pursuant to s 69ZN.  I will order a child inclusive conference.  In all cases, it is important that the voices of the children are heard, but here, in particular, given the ages of the boys, that is a matter that is very important.  I will also order the appointment of an independent children’s lawyer, and order for supervised weekly time each Sunday from 11 until 5 to be supervised by either or both of Ms D and Mr D.

10. The mother has expressed a concern that she is unable to physically force B to attend.  I request that her legal practitioner direct her attention to s 70NAC and explain clearly the obligations which will be placed upon the mother in respect of these orders.  I propose otherwise to relist this matter on 15 December 2016.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 September 2016.

Associate: 

Date:  10 November 2016