Herbert and Herbert (No. 2)

[2018] FamCA 1035

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT (NO. 2) [2018] FamCA 1035

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Where the matter was listed for a case management hearing and the mother filed a last minute Application in a Case seeking to have the children returned to her and to again have sole parental responsibility – Where the Court is not persuaded that the mother has truly gained the insight that is required before the children would be put back into her care – Where the children shall remain living with the father but commence having unsupervised time with the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Herbert

RESPONDENT: Ms Herbert

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid

FILE NUMBER: BRC 4902 of 2017

DATE DELIVERED: 7 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 4 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rosen, Rosen Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hanlon

SOLICITOR FOR THE RESPONDENT: Queensland Legal Practice

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Ms Wiid, Lyrene Wiid Lawyer & Migration Agent

Orders

1. That the children, X born … 2003 and Y born … 2009, (“the boys”) shall spend unsupervised time with their mother each second weekend from 9:00 am on the Saturday morning to 5:00 pm on the Sunday evening, starting this weekend, Saturday, 8 December and Sunday, 9 December 2018.

2. That the father shall deliver the boys to the mother’s home at the commencement of the time they are to spend with her and he shall pick them up from that same place at the conclusion of that time, and he shall remain in his motor vehicle whilst he delivers them and collects them and the mother shall remain inside her home at such times, so that the boys move between their parents without the parents coming into contact with each other.

3. That the mother is restrained from:

   (i)        Denigrating the father or his partner to the boys or in their presence;

   (ii)Discussing these Court proceedings and any other inappropriate adult issues, such as whether the boys want to live with her again, with the boys or in their presence.

4. That the father is at liberty to list the matter for further consideration, including the making of a Recovery Order, on an urgent basis should the boys not be returned to him at the conclusion of any of the weekends they spend with the mother.

5. That the proceedings be listed before his Honour Justice Forrest at 10.00 am on Monday, 18 February 2019 for mention at which time the Court shall consider any fresh evidence filed by that date and hear submissions as to whether there should be any further interim parenting orders made and at which further directions progressing the matter to an expedited final hearing, including possibly listing the matter for a trial on dates to be determined, will be considered.

6. That any Application in a Case for leave to adduce adversarial expert accounting evidence at the trial of the property adjustment proceedings shall be filed and served by the mother by Thursday, 31 January 2019 and listed for hearing on 18 February 2019.

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 Herbert & Herbert (No. 2) 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 BRISBANE

FILE NUMBER: BRC 4902 of 2017

Mr Herbert

Applicant

And

Ms Herbert

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I made interim parenting Orders in this matter on 7 September this year moving two boys from their mother’s care and placing them in their father’s care. Those Orders also conferred parental responsibility for making decisions about the boys’ education, their health and their religious and cultural upbringing on the father. The Orders I made deliberately did not provide for the boys to spend any time with the mother and ordered her not to return any communication she receives from either of the boys until further order.

2. The Orders I made provided for the father and the boys to attend upon a family therapist and for that to continue on a weekly basis until the therapist, the ICL and the father consider less frequent visits appropriate. The Orders also required the mother to attend upon a different family therapist, psychologist or psychiatrist, chosen by her but approved by the ICL, so as to address her attitudes to the children spending time in the care of the father. She was ordered to continue to attend that therapy for as long as it was considered necessary by the mother and the therapist.

3. I mentioned the matter again on 16 October and only made one additional parenting order which was an injunction restraining the mother from contacting the family therapist the boys and the father were seeing unless that therapist contacted her first. On 16 October, the mother informed the Court that she had started seeing a psychiatrist. The ICL then informed the Court it was not one that she had been asked about or had approved in advance. On that day, I adjourned the matter for further mention on 4 December 2018 to consider the progress of the matter and to consider listing it for a trial.

4. On 4 December, the matter was before me again. The mother sought the hearing of an Application in a Case filed on Monday, 3 December in which she sought to have the boys returned to her care and to again have sole parental responsibility for them. She had filed an affidavit of her own and an affidavit of the psychiatrist she has been seeing with a report attached.

5. The father objected to the hearing of the application on the basis of the short notice, though he had filed an affidavit of his own in the lead up to the day. His solicitor told the Court that was just to keep the Court informed as to the current situation.

6. When asked her position, the ICL tendered a number of documents she had obtained. One was a short report from the family therapist who has been seeing the boys. One was a report from the eldest boy’s school and one was a report from the youngest boy’s school.

7. As the matter had been listed to review the progress of the matter, and the possibility of reinstating the mother’s time with the boys depending on the progress of the matter had been flagged in the first instance, I determined to consider the parenting arrangements again at that time.

8. In her affidavit, the mother deposed to now having reached an understanding, with expert help, of the need to comply with Court Orders. She said that if the Court put the boys back into her care she would facilitate the time that they are to spend with the father and that there would not be any more contraventions such as those which led to her losing the care of them earlier this year.

9. In her affidavit, she also deposed to the asserted fact that the eldest boy has been frequently attending her home on his way home from school in recent times notwithstanding the fact that no time was provided for in my previous orders. She said that the boy has begged to return to her care and complained that she is not listening to him. She said that she tells him he must return to his father’s care, which he reluctantly does. She said that she has “had no control over [the boy] attending” at her home. She said that she has even encouraged him not to attend at her home but that he has not taken any notice of her.

10. She also said that the boy has told her that his younger brother is distressed at being separated from his mother and is unhappy and anxious about being separated from her.

11. There is no evidence that the mother has seen the youngest boy since the recent Orders preventing that were made.

12. The father’s solicitor was not able to confirm whether the father had any knowledge of the boy attending at his mother’s on the way home, but said he conceded that it was possible that he might have.

13. The mother also told the Court that she pressed what the Court understands is her fourth application for a family violence order against the father in the Brisbane Magistrates Court in the period since this Court’s Orders were made and that she was successful in obtaining an Order despite the father’s opposition to that application.

14. Dr N confirmed in her latest report that she had seen the mother again on 7 and 22 November and that her present mental and emotional wellbeing after this later date, “was normal”.

15. The ICL informed the Court that she had made appropriate enquiries and satisfied herself that Dr N was an appropriate therapist for the mother to be seeing.

The Influential Information

1. One of the principal reasons for moving the boys from the mother’s care to the father’s care, in addition to the fact that the mother was simply refusing to comply with the Court’s Orders for the boys to spend time with their father, was the evidence that the mother was just not facilitating the eldest boy’s attendance at his school. The evidence before the Court at the hearing that led to the September Orders demonstrated an appalling record of attendance by the Year 9 boy at one of the most expensive private schools in Brisbane. The mother sought to justify it. It could not be justified.

2. The evidence adduced by the ICL in October and again this week, in the form of reports from the school, shows that the father has turned that situation around and that the boy is now back attending school as expected and, according to the school, doing well and behaving appropriately, including with his peers. The school reports from the youngest boy’s school, also tendered into evidence by the ICL in October and again this week, also show that boy is doing well at school and do not give any cause for concern about the father’s care.

3. The latest report from the family therapist seeing the father and the boys is also reasonably positive. She reports seeing the family regularly. Relevantly, she expressed the opinion that the therapy should continue and she went on to say that the boys should not be having contact with the mother until the therapy the mother was ordered to obtain has been engaged with and/or completed and the mother has received more insight into her progress.

4. Having read the affidavit of the mother and the latest report of Dr N and having heard the mother’s application to have the boys come back immediately into her care and to be granted sole parental responsibility, I am not yet persuaded that the mother has truly gained the insight that is required before the boys would be put back into her care.

5. I very quickly decided that I would not be making Orders putting the boys back in the mother’s care and giving her sole parental responsibility and I told the parties that.

6. I heard submissions about whether the boys should have any time with the mother yet and both the ICL and the father submitted that they should only have time with the mother if it is supervised at a children’s contact centre.

7. However, having heard that the eldest boy has been visiting the mother notwithstanding the Orders on his way home from school and accepting that he has, despite that, been returning to his father’s home without the mother acting to stop him from doing that, there is demonstrable hope that the mother is developing some insight into the need to respect the boys’ rights and needs to have a meaningful relationship with their father and that she will not defy the Court’s Orders again in the future.

8. I am particularly conscious that nine year old Y would be missing his mother and that he should be seeing her if it can be managed well. I am also accepting of the reality demonstrated by 15 year old X that he will visit his mother if he wants whether it is ordered or not. These matters cause me to cautiously determine that the boys should start spending some unsupervised time with their mother, particularly as Christmas approaches and they are on school holidays for some time.

9. I will Order that the boys spend unsupervised time with their mother each second weekend from 9:00 am on Saturday morning to 5:00 pm on Sunday evening, starting this weekend. The father shall deliver the boys to the mother’s home at the commencement of that time and pick them up from that same place at the conclusion of that time. I will order that he remains in his motor car when he delivers and collects them.

10. I will order that the mother refrain from denigrating the father to the children and from discussing the Court proceedings or any other adult issues, including whether the boys want to live with her again, with the boys at any time whilst they are in her care.

11. The mother must be aware that if she contravenes this Court’s Orders again and does not return the boys to their father’s care at the end of these unsupervised visits, she is likely to lose the benefit of Orders granting her time with the boys yet again and potentially faces the more serious consequences that follow demonstrations of serious disregard for the Court’s Orders.

12. I will not provide for the boys to spend time with the mother on Christmas Day as she will have them on Saturday 22 and Sunday 23 December and can celebrate her own Christmas with them then. I am conscious of the plans the father said in his affidavit he already has in place for Christmas Day and do not consider it appropriate to force him to change those now.

13. I will mention the matter again early in the New Year to again check on the progress of the matter and to consider listing the parenting and property proceedings for final hearing. However, if the mother does not comply with the Orders and the father needs to relist the matter urgently before me or another Judge of the Court in my absence on leave, he will have the liberty to do so on short notice to the mother.

14. I am reasonably hopeful that as the mother is legally represented again and continues to attend upon Dr N that she is getting the appropriate advice about complying with the Court’s Orders and will continue to do so. It is indeed to her credit that she has been insisting on the eldest boy’s return to his father’s upon his unscheduled visits to her home and is a positive sign for the future.

15. The final matter to be dealt with is the mother’s application for an Order restraining the father from moving the eldest boy from the private school he has been attending. This appears to have arisen in the immediate context of the father having deposed in his affidavit to having taken the decision to enrol the eldest boy in Grade 10 at a Brisbane State High School next year and not to return him to the private school. The context also includes disagreement between the parents over the last two years as to whether the boy should continue to be attending the private school having regard to the cost of such attendance and the family’s financial circumstances. The evidence previously before the Court showed the mother acting unilaterally to take family capital and pay this year’s school fees in advance without the father’s knowledge or consent. Once that had happened, the father reluctantly acquiesced in the boy staying at that school for the duration of this year.

16. Significantly, there is extraordinary incongruence, in my judgment, between the mother’s demonstrated determination to keep the boy enrolled at that school, notwithstanding the financial cost, whilst at the same time, whilst he was still in her care, not ensuring he was attending at the school on a daily basis and permitting him to stay at home with her, for what I am quite satisfied were unjustifiable reasons.

17. The Court was told that the current school fees for the boy to continue to attend at that private school are $25,000 for the year. Conscious of the fact that money would have to be sourced from after tax income and still being aware of the financial circumstances of the family with a property adjustment yet to be achieved, I am not persuaded that the father should be compelled to send the boy back to the private school next year. I have already made an Order conferring sole parental responsibility on the father for decisions about the boys’ education. I will not interfere with his exercise of that responsibility as the mother seeks on this issue.

18. I had previously indicated an intention to consider listing the matter for a trial next year. When the parties were asked if the matter was ready to be listed for trial, counsel for the mother told the Court the mother was likely to bring an application for leave to adduce the evidence of an adversarial accounting expert when already the evidence of a single expert accounting expert has been procured by agreement. Accordingly, I told the parties I would not list the matter for trial whilst that matter remained outstanding. Counsel then asked me to again consider listing it for trial at the mention of the matter early in the New Year by which time the issue of a further application may well be finalised.

19. In these circumstances, I will list the matter for further mention in February and direct the mother to file and serve any application that she intends to file, if any, for leave to adduce the evidence of an adversarial accounting evidence by the end of January.

20. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 December 2018.

Associate: 

Date:  7 December 2018