Harte and Darwin

[2010] FamCA 1211

FAMILY COURT OF AUSTRALIA

HARTE & DARWIN [2010] FamCA 1211

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where there are concerns about the impact of the parties’ highly conflictual relationship on the child – consideration of the child’s wishes – best interests – orders that the child spend time with the father and for all parties to seek therapy and counselling

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Harte

RESPONDENT: Mr Darwin

INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

FILE NUMBER: ADC 109 of 2010

DATE DELIVERED: 13 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 13 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Read

SOLICITOR FOR THE APPLICANT: Barr Lawyers

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Vicki Lehmann & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

UPON NOTING that paragraph 10 of the hereunder mentioned minutes is not by consent

IT IS ORDERED BY CONSENT THAT:-

1. Orders be made in terms of the minutes signed by me on 13 December 2010.

AND IT IS FURTHER ORDERED THAT:-

1. The father’s time with the child M born … June 2002 continue to be supervised for the first hour only of each period of time that he spends with his father.

2. The time that the said child spends with his father be increased from 9.00am to 5.00pm each Saturday commencing 1 January 2011.

3. The father spend time with the said child from 12.00 noon to 4.00pm on 25 December 2010, unsupervised.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 109 of 2010

MS HARTE

Applicant

and

MR DARWIN

Respondent

REASONS FOR JUDGMENT

1. I have before me today the continuation of a Less Adversarial Trial process which involves disputed proceedings between the parties in relation to their son, M, who was born in June 2002 and who is, hence, eight years of age.  The proceedings are marked by significant disputation between the parties and evidenced too by significant toxicity between them.  The very sad, but not surprising consequence, of the toxic relationship between the parties is that it has had a quite significant and alarming impact upon young M. 

2. The evidence of problems for the chikld emerges in a number of documents now filed in Court but I will make reference only to two of them.  I refer particularly to the Family Report prepared by Dr B in these proceedings and dated 26 July 2010.  It makes for alarming reading in some instances and whilst there are a number of references to areas of concern, in relation to the child’s emotional presentation the most stark, in my view, is contained in paragraphs 53 and 54 of the Report. 

   “53. [M] stated that his father had not hurt him. He said his mother thought that ‘dad locked me in the toilet and stuff. I told mum he did but it’s not true’. [The child] stated that he did not know why he had told his mother this but insisted that it was not true. He also stated the story about the toothpaste in his face was also not true. [The child] acknowledged that he had said his father ‘used to put it on me when I was asleep. That he puts this special cream all over me. It was a big stupid dumb lie now my whole family hate me-they’ve done all this for me and now I dump them down the drain. That’s why I want a new family’. [The child] was very agitated at this stage, constantly moving around the room. He again reiterated ‘they’ve done all things for me and what do I do dump them down the drain’. When asked who says this [the child] stated ‘Me. If I didn’t lie in the first place’. He expressed concern that everyone will be angry with him. He went further stating that he had been bullied at school ‘because I’m crap and useless’. [The child] was of the opinion that everyone hates him stating ‘I’m a dumb bloody liar’. [The child’s] dysregulated behaviour and negative self statements were concerning and suggest that [the child] was experiencing significant emotional distress. His comments about ‘dumping his family down the drain’ were suggestive of adult language. [The child’s] comments about wanting a new family indicated that [the child] was experiencing a high degree of psychological turmoil whereby whatever he said one parent would not be happy with him.

   54. [The child] could not give an explanation for why he lied stating ‘I love my mum and I love my dad. You know how there are seven days in a week I want three days with mum, three days with dad, and one day with my sister ([C]). That’s how I wish it could be but I don’t get a say. I’m a big fat jerk and a liar’. He continued ‘No I don’t get a choice who I live with when I’m with them, that’s why I told the lie cause I wanted to spend more time with dad-it’s not fair’. [The child] impressed as very angry and agitated. When asked how that sort of arrangement might work with his father’s work [the child] stated ‘If he wanted me he could’. [The child] said he had not talked to his father about this proposal.”

   In her Evaluation which commences at paragraph 68 of that report, Dr B indicates her concern for the child and the fact that he has been caught in the middle of a very significant conflictual relationship and dispute between his parents, effectively since he was two years of age.  I quote from paragraph 69 of Dr B’s report:

   “[The child] impressed as being emotionally torn between his parents, to have poor self-esteem, and to have a poorly integrated sense of self.”

3. A little later in the same paragraph she says:

   “However, much of [the child’s] problems have likely been the result of the animosity and lack of trust between the parents and [the child’s] inability to integrate what appears to be two very separate and conflicting lives.”

4. As she was obliged to do, Dr B then makes reference to the sexual abuse allegations which gave rise to the inclusion of this matter in the Magellan project.  I asked counsel for the mother today to explain the burden of proof required for such allegations to be sustained and I asked that she undertake an exercise in refreshing her instructions in that regard.  It is a process sometimes known in mediation circles and also sometimes in this Court as “reality testing”.  That exercise has been completed and Ms Read, for the mother, has indicated to the Court today that the mother will not be pursuing her allegations in these proceedings that the father has sexually abused the child or that he is an unacceptable risk to the child.

5. That opens the door for a very different approach to be taken between the parties in terms of their negotiations and attempts at resolution of the matter.  Such an exercise, I think, would be valuable to the child who quite recently is still clearly evidencing the stress of the dispute between his parents.  In that regard I refer to the report of Mr P, which is dated 29 November 2010.  And in particular I refer to paragraph 4 on page 2 of his report and I quote :-

   “With the exception of our first meeting on 8/10/10, I have generally have not asked [the child] questions about his day-to-day experiences. Rather, I respond to what [the child] initiates. [The child’s] disclosures over the period of my involvement with him are indicative of him struggling to reconcile his feelings of affection for all members of his immediate family (mother, father, sisters) and the apparent hostility that exists in the family. [The child] has spoken of his desire to live with his sister, as opposed to his mother and/or father, so that he is not put in the position of having to choose one parent and letting the other parent down. [The child] has also complained of not having enough time with dad. When I did break with my normal practice on 1/11/10 and ask if there was anything he would like to change about his family, [the child] paused to think, and then responded that he would change his father’s behaviour towards other family members. He acknowledged that he was concerned about conflict that occurred between his father and sister at the previous weekend’s handover, of which I had already been advised by [the child’s] mother.”

6. In making any determination in a parenting dispute I am obliged to have regard of the provisions of Part VII of the Act.  In particular, section 60CA of the Act urges me in making any orders in relation to the child in these proceedings to have regard to the child’s best interests as the paramount consideration.  In doing so I am guided to section 60CC of the Act which is divided into primary considerations and additional considerations.  The two primary considerations make a Judicial Officer’s life difficult in that they require findings to be made in relation to two very conflictual provisions.  I am obliged in this case to consider the benefit to the child of having a meaningful relationship with both of his parents but also the need to protect him from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. 

7. The information currently before the Court, particularly in the two reports to which I have earlier referred, namely, the Family Report of Dr B and the report of Mr P, indicate a quite clear desire on M’s part to have a relationship with his father and indeed to expand upon that relationship.  The materials on the Court file also indicate that the mother’s relationship with the child is probably his most significant.  They share and enjoy a loving relationship.  Only in the area of the very poor and toxic relationship that she has with the child’s father is she perhaps failing in areas of her parental responsibility to the child. 

8. On that topic, I have also before me a report of Mr J, who is undertaking the task of providing some therapy and counselling for the father in these proceedings.  His report before the Court is dated 15 November 2010.

9. He makes two recommendations which I quote:-

   “1. That [the father] develop a greater understanding of [the child’s] experience of parental conflict and his feelings of worry and self blame. This will require that [the father] better understand his own contribution to parental conflict, its effects upon [the child] and find effective ways to provide security and reassurance for his son.

   2. That [the father] address his feelings of resentment and blame towards [the child’s] mother. [The father] understands the importance of learning to relinquish these feelings which would enable him to contribute more actively to providing a secure environment where his son might feel free from distress and worry about parental conflict.”

   In short though, he is concerned that the father still has a long way to go in terms of resolving his resentment towards the mother and understanding that his resentment towards the mother stands in the way of him developing a full and meaningful relationship with his son.  Only when he comes to grips with that and addresses those issues is he likely to be able to enjoy the relationship with his son that he so desires.

10. I am also obliged to consider a large number of additional considerations under section 60CC of the Act.  I will not deal with all of them with great specificity. It suffices to say that I have had regard to those that are relevant to the issues before the Court presently.  The first of them will justify a special mention in that I am obliged to consider any views expressed by the child.  Here it is quite clear that he wishes to remain in residence with this mother, although I accept that at times he has indicated quite conflicted and contradictory statements in that regard.  Importantly though, he has indicated a desire to spend time with his father and in fact in some recent materials has indicated a desire to spend more time with his father. 

11. I have, I think, sufficiently canvassed in these interim proceedings the other relevant issues such as the nature of the relationship of the child with each of his parents and the willingness and ability of each of them to facilitate and encourage a close and continuing relationship between the child and the other parent.  As to any likely effect of any changes in the child’s circumstances, the most significant change in the short term is likely to be the increased periods of time that he spends with his father and the manner in which he spends those increased periods of time with his father.

12. The specific area of concern there is not just any increased hours but as to whether or not they should include overnight periods of time and whether or not that time should be supervised or unsupervised or a combination of both.  Having considered all of the relevant provisions of the Act and the material presently available to me, it is my view in the specific areas on which the parties are not able to agree; and I so order that:-

    (1)The father’s time with the child continue to be supervised for the first hour only of each period of time that he spends with his father.

    (2)The time that the child spends with his father be increased to 9 am to 5 pm each Saturday.

    (3)The father spend time with the child from 12 noon to 4 pm on 25 December 2010. I do not require any supervision for that day given that the father in any event will be spending his day and hence the child’s day with relatives who are the Court approved supervisors.

13. I will require the continuing treatment by the father with Mr J.  I’ll require that the mother identify and undergo appropriate counselling and therapy for herself.  I will require an order in the minutes to be prepared by counsel that the child continue his therapy with Mr P.

I certify that the preceding twelve (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 13 December 2010.

Associate: 

Date: