HARTHOPE & TATNALL

[2011] FamCA 393

FAMILY COURT OF AUSTRALIA

HARTHOPE & TATNALL [2011] FamCA 393

FAMILY LAW - CONTRAVENTION APPLICATION – application of relevant legislative provisions – findings of fact – suspension of parenting orders on terms.

Family law Act 1975 (Cth): ss 70NAC(a)(i) & (ii); 70NBA(1) & (3)

APPLICANT: Mr Harthope

RESPONDENT: Ms Tatnall

FILE NUMBER: NCC 66 of 2008

DATE DELIVERED: 31 May 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Rose J

HEARING DATE: 30 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: I Duane

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay Lawyers

COUNSEL FOR THE RESPONDENT: S Christie

SOLICITOR FOR THE RESPONDENT: Mark Evans Solicitor

Orders

1. That the Contravention Application of the father filed 25 February 2011 is dismissed.

2. That in relation to the father spending time and communicating with the eldest child of the parties L (“the child”) born … April 1999 Orders numbered 5.2, 5.3, 6, 10 and 15 of the Orders made 22 October 2010 are suspended until the following terms and conditions have been complied with or as otherwise ordered:

   (a)that the parties forthwith make arrangements for a joint consultation with Mr M psychologist without the presence of the child and such further consultations with or without the presence of the child as Mr M may advise for the purposes of reducing the conflicted parental relationship between the parties and improving the relationship between the father and the child;

   (b)that the parties continue to retain Mr M for the purpose of continuing consultations with the child and/or Ms S psychologist/counsellor as Mr M may advise;

   (c)that the parties request Mr M to furnish them in due course with a written report expressing his opinion that the child is unlikely to be adversely impacted emotionally by the resumption of periods of time and communication with the father, such report to be furnished by Mr M at such time and following such consultations as he considers appropriate.

   (d)that the parties pay the fees of Mr M and Ms S equally.

3. That the parties by their respective solicitors shall publish as soon as possible to Mr M copies of these Orders and Reasons for Judgment.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: NCC66 of 2008

Mr Harthope

Applicant

And

Ms Tatnall

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 October 2010 parenting orders were made by consent (which I shall refer to as “the consent orders”) in this Court in relation to the children of the parties:

   (a)L Harthope, now 12 years of age having been born in April 1999 (who for convenience I shall refer to as “L”); and

   (b)J Harthope, now 10 years of age having been born in May 2001 (who for convenience I shall refer to as “J”).

2. The consent orders were made against a background of contested litigation in this Court and in the Local Court.  The two children live with the mother.  The mother has been their primary carer at all material times.

3. In summary, the consent orders provided for the parties to have equal shared parental responsibility; the two children to live with the mother progressing to week-about arrangement; the father to spend time with J for defined periods until 26 December 2010 and for the father to spend time with L in a staged regime of escalating periods until the commencement of the week-about arrangement on 31 December 2010.  Orders were also made to enable the parties to have reasonable communication with the children whilst they are in the care of the other party.  Ancillary orders were also made.

4. It is common ground that L suffers from Asperger’s Syndrome.  With the consent of the parties L has been consulting Mr M psychologist and Ms S psychologist.  The parties have also consulted them, although principally Mr M.

The contravention applications

1. The father has filed two contravention applications, namely:

   (a)Contravention Application filed 9 November 2010 (this application was dismissed by me for reasons given during the hearing);

   (b)Contravention Application filed 25 February 2011 (which I shall refer to as “the second application”).

2. The second application alleged a number of contraventions of the consent orders which I shall now determine by reference to the particular dates given.  The mother denies the alleged contraventions.  The mother’s case is that she made a reasonable attempt to comply with the relevant order that forms part of the consent orders or otherwise did comply with them.  Accordingly, she contends that she has not contravened the consent orders by reference to section 70NAC(a)(i) and/or (ii).

3. On 20 November 2010 it is common ground that the mother in the company of the maternal grandmother and the two children approached the agreed place of changeover namely, Location 1, that the father was seated inside the premises waved and J waved back, L walked into the premises near the father and then ran away.  The parties had an argument.  They differ as to the extent to which they searched for L.  Ultimately, L phoned the mother to say that he had returned home.

4. The mother is criticised for not encouraging L to spend time with the father and not delivering the child to the father.  I accept the mother’s evidence of her efforts in encouraging L on this date and all other relevant dates in these proceedings.  I do so not only on her own evidence and that of the maternal grandmother, both of whom I have considered to be witnesses of truth, but also due to the records of Mr M contained in Exhibit 2.  Mr M noted that L’s complaint was that “everyone is against him” including the mother. 

5. I have concluded that the mother did not contravene the relevant order in that she either complied with it or made all reasonable attempts to do so.  My reasons are that L was taken to the place of change-over, he entered the premises and then ran away.  I do not accept that the mother acted in a way to frustrate the time to be spent by the father with the child by any action prior to the child arriving at Location 1 or subsequent to him approaching the premises or entering into it.

6. On 27 November 2010 the mother was at work at the relevant time.  L was taken to meet the father at Location 1 by the maternal grandmother and a friend Ms B.  The latter’s evidence is that the child was standing near the father who was sitting outside.  The father approached L who ran away.  The father chased after him.  The child ran through a car-parking area which had a number of cars parked in it.  The child ran through traffic and ultimately entered a local police station.  These events, in substance, are not denied.  Ms B and the maternal grandmother subsequently collected the child from the police station after a telephone conversation with a police officer. 

7. I have concluded that the mother did not contravene the relevant orders in that she caused those orders to be complied with and/or in doing so made all reasonable attempts for that purpose.  The facts are that the child was taken to the perimeter of Location 1, the child was in the immediate vicinity of the father, the child then ran away.  I do not have any evidence of or, any evidence of substance that the mother was complicit in those events occurring by indirectly or even directly causing the child to adopt a mindset whereby he was determined to put himself in danger by running through the relevant complex, through a car-parking area, through traffic and into a police station.

8. It is relevant to reflect that this child is not a twelve year old free from any health issues.  As has already been noted, the child suffers from Asperger’s Syndrome.  He has been consulting a psychologist for a considerable period of time.  The child has been demonstrating some of the characteristics that are associated with that syndrome as is evident from Exhibit 2. 

9. In the battle between the parents, in order to assert their rights as they see it, it seems to me that this occasion plus others to which I shall refer had merely become the stage for a continuation of the war between them.  In doing so they have lost the fact that at the centre of their conflict is a young boy who has serious health issues that require a different approach, one that reflects sensitive understanding and the need to make the child feel relaxed and have a positive attitude to being with the father.

10. I heard evidence in relation to the regrettable events on, ironically, Christmas Day 2010.  The events of that day are not the subject of the second application.  Nonetheless, I was assured by counsel that the evidence about that particular day so far as L was concerned and his relationship with the father would be regarded as being relevant.  As matters unfolded counsel’s view of the events on that day proved to be correct.

11. On that day the child arrived to spend Christmas Day with the father.  This was in accordance with the consent orders.  One might have thought that this day being Christmas Day would have more significance than a mere public holiday and that it represents some form of a more spiritual approach to healing relationships.  Unfortunately, that did not prove to be the case.  The child was resistant to spending time with the father.  The father was in the company of his partner and his sister.  The child entered the father’s home.  He was obviously showing resistance.  The father and/or those with him locked the house.  In effect, the child was imprisoned in the home and whilst that was, no doubt, not the intention of the father but rather to secure the child’s period of time to be spent with him, it way well have had that effect.  That may be demonstrated by the child’s subsequent actions.  He sought to remain away from the father, entered the bathroom and left the home by climbing through a bathroom window and ultimately making his own way to the home of the mother.  In the process he was allegedly grabbed by the father’s sister. 

12. One might have expected  that intelligent, educated adults with some sensitivity to the history of this child’s fraught relationship with the father, not to mention his particular health issue may have adopted a more calm, subtle, flexible and sensitive approach to dealing with the child.  Instead, what regrettably happened was an example of brute intimidation of the child even if it was not meant to be that way, but that was the effect.  It is little wonder then that the events of that day added fuel to the fire so far as providing a platform for further difficulties which arose on subsequent occasions.

13. The next relevant matter in terms of the alleged contraventions was on 7 January 2011.  The mother drove the child to the father’s home.  The child exited the vehicle.  The child resisted proceeding to be with the father.  The father exited his home and stood in the company of his partner.  Remarkably, his partner proceeded to take photographs of the scene.  In referring to this matter I am not suggesting that the father’s partner was motivated by some sinister purpose, but rather his actions, for whatever reason, including as the father referred to wanting to have some evidence of the mother driving away with the child in the car, was hardly conducive to creating a relaxed impression about the prospect of spending time with the father. 

14. Again, at the risk of over emphasising this situation with the child, this is a child with a history of being involved in the centre of parental conflict and who has his own particular issues arising out of the diagnosis to which I have referred.  I accept the mother’s evidence of L’s reaction to the photographs being taken.  This is yet another example of the father being better served, in terms of his relationship with the child by taking sole responsibility for events that are to occur, rather than allowing others close to him to actively participate in the relevant occasions.

15. Unfortunately, the events of that day added further difficulties to progressing the relationship between the father and L.  The father has stated to me in evidence that he wants to have his son back.  I accept his evidence unreservedly.  Unfortunately, the manner of seeking to achieve that object by both himself and those close to him have only made matters worse.

16. Accordingly, I find that the mother has not contravened the relevant orders on this occasion.  The child was brought to the father’s home.  I do not have evidence of the mother having acted in a way which was contrary to the spirit of the relevant order.  The child resisted leaving the car.  It was not the place of the mother to force the child physically to leave the car, being a 12 year old boy having the health issues to which I have referred.

17. On 21 January 2011 the mother arrived at the father’s home with the two children in the company of Ms B.  The child’s response to the mother was that he was too scared to see the father.  The mother continued to speak to the child, the father and his partner were on the footpath outside the home. The father then spoke to the child whilst he was in the mother’s vehicle and asked him to leave the car and come inside.  The child resisted.  The father then reminded the child about court orders.

18. One might have thought a reference to “court orders” to a child who was already traumatised was hardly conducive to the child adopting a more positive attitude to spending time with the father.  The father then allegedly said in response to the child “I’ll never give up because the Court is going to make you and you’ll have no choice”.  Again, I accept that whilst the father was not intent on threatening the child, this is implicit in the words that he allegedly used.

19. I accept the mother’s evidence in that regard, there not being any credible evidence to the contrary.  The father’s partner then spoke to the child and then took it upon himself to speak to the mother about her causing the child to leave the car.  Again, no matter how well-meaning it might have been of the father’s partner to assist the father in this situation, the events of that day and in the past demonstrated yet again that it would have been better for the father’s partner to attend to his own business and allow the two parents, who are the ones responsible for the child’s care, to be the ones engaged in a discussion as to the best means of dealing with this situation.  The child became upset and the father’s partner then allegedly made some derogatory comment before he and the father re-entered the home.  This serious matter was not the subject of any contrary evidence.  I accept the mother’s evidence in that regard.

20. I have concluded that the mother has not contravened the relevant orders within the meaning of the Act.  The mother brought the child to the father’s home.  The events of the day which I have briefly summarised perpetuated an atmosphere of difficulty to put it mildly.  The child resisted leaving the vehicle.  I do not accept that the mother could have done more than she did in terms of acting in a way which was more reasonable in the circumstances to cause the child to leave.  Here again, one has a situation of a young child resistant to spending time with the father, in part, at least due to the poor conflicted relationship between the parents, not to mention the implicit effect of aspects of his particular health issue to which the father on this occasion and certainly his partner should have been more sensitive in recognising the behaviour of the child.

Conclusion

1. It follows that I will dismiss the second application. 

2. Prior to submissions being made I raised with counsel the prospect of suspending the parenting orders that relate to time to be spent by the father with L and his communication with him.  Counsel for the father informed me that his instructions were to oppose the parenting orders being suspended but that it was open to me on the evidence, depending on the findings that I made, to suspend such orders in view of the difficult situation that has developed in terms of their implementation for periods of time to be spent by the father with L and his communication with him.

3. Counsel for the mother supported the suspension of the relevant parenting orders on the terms that I outlined namely, that the parties engage in a joint consultation with Mr M, that Mr M be requested to provide a report at a time of his choosing setting out in writing his opinion as to whether the child was unlikely to suffer emotionally by the resumption of periods of time to be spent by him with the father. 

4. I have not lost sight of the fact that each of the parents, very much to their credit, have both not only engaged Mr M and Ms S to provide professional help for L, but have also taken part in consultations with both Mr M and Ms S.

5. It is a matter of regret to me that in this troubling case of this child against a background where I do not doubt that each of the parents loves the child and would like to continue to foster a relationship with him, the parties have on the other hand become so involved in their entrenched conflict that they have not even undertaken what some people may regard as a fundamental step to assist the child and that is to take part in a joint consultation with Mr M, initially such consultations to be without the child, to discuss how they may better cooperate together to allay the child’s trauma and to make for his benefit periods of time to be spent with the father in accordance with the consent orders.

6. The reasons why that has not occurred seems to be, so far as the father is concerned, that the father blames the attitude of the mother as being the cause of all of these difficulties.  The father himself stated when I raised this matter with him in his evidence that if the child spent time with him he would be able to “re-program” the child so that, implicitly, the child would have a beneficial attitude and relationship with him.  I considered that the use of that word was unfortunate.  This child is not some tangible object who can simply be influenced as one might do by re-programming some device.  Whilst the father did not mean to be taken literally, the tenor of his evidence demonstrated to me that there was a lack of insight at times by him as to the appropriate way of improving the situation between himself and L.

7. I have concluded that the father shows a lack of insight at times in dealing with the situation of the child and his relationship with L as has the mother.

8. So far as the father is concerned, his lack of insight is demonstrated by the regrettable events which occurred on Christmas Day last to which I have referred and which do not bear reiteration.  In addition, his oral evidence which I have just briefly summarised on this point adds further concern.

9. So far as the mother is concerned, her delivery of presents back to the father which he had provided for L and the note from L which is Exhibit 5 which in its very terms should have caused a responsible parent with insight to not have delivered it to the father, shows a regrettable lack of insight as to the effect of those actions in terms of future relationship with the father and which could only indirectly consolidate the difficulties that have arisen between the father and L.

10. The position that is reached now, in the context of the contravention applications and the current consent orders, is that in all likelihood there is a future of continuing conflict and blame as between the parents with consequential pressure on the child who is still young and who has suffered seriously from aspects of Asperger’s Syndrome.

11. Apart from the matters to which I have referred, the evidence particularly that in Exhibit 2 as well as the evidence of the mother shows that this 12 year old boy has been giving vent to his anxiety by bed-wetting and other aspects of trauma referred to in Exhibit 2.

1. Quite clearly something needs to be done to prevent this pattern of difficulties continuing.  I invited the parties, through their counsel, at the commencement of the hearing yesterday to consider devoting their time and money to joint consultations with Mr M in order to take a more constructive and cooperative approach to dealing with the situation to which I have referred.  Unfortunately, that invitation was not accepted.  The result was a continuation of yet another chapter in the litigation between these parties which quite possibly has made their relationship even worse.  It is time for a more constructive child focussed approach to be taken.

2. I have determined, in view of the powers and the discretion to make orders which affect parenting orders without having to make a finding of contravention, that I will suspend the parenting orders so far as they relate to L and the father on certain terms and conditions.  Those terms and conditions will require the parties to engage in joint consultations with Mr M and requesting Mr M to provide a report at such time as he feels professionally able to do so, if at all, setting out his opinion that time to be spent by L and the father is unlikely to be emotionally distressing for him.

3. It follows that as the parents have to take responsibility to varying degrees for this situation, they should also bear the fees equally.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 31 May 2011.

Associate: 

Date:  1 June 2011