Higgins and Benson

[2016] FamCA 161

FAMILY COURT OF AUSTRALIA

HIGGINS & BENSON [2016] FamCA 161

FAMILY LAW – CHILDREN – Parenting plan – Interim – Whether orders for the father to spend time with the child should be discharged preventing further time – Where the child ran away from the father at a shopping centre on the first day of ordered holiday time with the father – Where the mother refused to return the child to the father after collecting the child from police at the shopping centre – Where the matter has been heard at trial and judgment is reserved – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Higgins

RESPONDENT: Mr Benson

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 10827 of 2007

DATE DELIVERED: 14 March 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 March 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley

Dooley Solicitors

Orders

1. The respondent father’s Application for Contravention filed 15 February 2016 is dismissed, noting that the father indicated to the court today that he chooses to discontinue that application.

1. The applicant mother’s Application in a Case filed 25 January 2016 and the orders sought by the respondent father in his Response filed 7 March 2016, are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Higgins & Benson 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 BRISBANE

FILE NUMBER: BRC 10827  of 2007

Ms Higgins

Applicant

And

Mr Benson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In parenting proceedings between the father and the mother in this case, on an interim basis on 28 October 2013, Justice Austin of this Court made certain orders regulating the parenting arrangements in respect of the child of these parties, namely B, born in 2003, for the interim period pending the hearing and determination of the competing parenting applications for final parenting orders. 

2. Those interim parenting orders provided for young the child to spend time with her father during school term, from 9.00 am on Saturday until 5.00 pm on Sunday on each alternate weekend, starting on the first weekend of each school term. The orders also provided that the child spend a week with her father from 5.00pm on Christmas Day each year until 5.00 pm on New Years Day.  I bear in mind that Justice Austin knew that he was only making orders on an interim basis and not putting in place orders that were to last for many years.  He also provided that the child spend another week with her father from 14 January to 21 January in school holidays and thereafter that she spend a week with him during the school holidays at the end of each school term that were normally of two weeks duration, being the first week of each such holiday. 

3. The matter came on for a trial before me in May of last year, over two days.  Each of the parents was unrepresented, but the Court was assisted by the independent representation of the child by the Independent Children's Lawyer, Mr Dooley, who instructed Ms McDiarmid of Counsel.

4. If I recall correctly, the father was seeking parenting orders that extended the amount of time that the child spent with him beyond that which Austin J had ordered on an interim basis.  The Independent Children's Lawyer tells me this morning, and I do not have any reason to doubt it, that he was advocating at the end of the trial that the child spend time with the father essentially in accordance with the same regime that Justice Austin had put in place on an interim basis, without any increase or without any decrease.  The mother reminds me this morning that she was seeking to reduce such time, with the child only to spend every Saturday morning for a few hours with the father. 

5. As not unexpected, I reserved my decision at the end of that hearing and, rather regrettably, as I have been saying fairly frequently in recent times, my judgment remains reserved, principally because of the responsibility I have had for hearing and determining so many other difficult parenting cases in the period since reserving my judgment.  However, as I have informed the parties this morning, I am getting through my reserved judgments list and this matter is approaching the top of that list and my judgment is likely to be delivered within several weeks from today.

6. However, whilst reserved, the mother has filed an Application in a Case on 25 January 2016.  In that Application in a Case she seeks an order that discharges that part of Justice Austin’s interim order that remains extant and governs the existing parenting regime whilst my judgment is reserved. The mother seeks its discharge immediately. That part of Justice Austin’s orders that the mother seeks immediate discharge of is that paragraph that actually requires the child to spend time with her father.  In short, and quite frankly confirmed by the mother this morning, she seeks now an order that discharges any obligation on her part to ensure that the child spends any time with her father at all from this point on.  

7. The mother has filed and relies upon a number of affidavits supporting this Application in a Case where she seeks what can only be described, (and I use the word used by the Independent Children's Lawyer in his submissions opposing her application this morning), a draconian order.  She filed a number of affidavits that she relies upon, one of her own, one of a friend, Mr C, who is with her, supporting her in Court today, and one of another friend, Ms D. 

8. In essence, the factual circumstances deposed to by the mother and supported by her witnesses are these.  Much of them are not in dispute.  On the occasion of the beginning of the week that the child was to spend with the father in the January period of the 2015/2016 school holidays, the parties made arrangements for the handover of the child to take place at E Shopping Centre located at the eastern end of Suburb F, Region G.  They made arrangements for the handover to take place there and on that day the father met the mother with the child, took the possessions that the child had with her that she had packed for the holiday back to the car whilst the child waited with the mother at the father’s request, and after the father returned and he and the child said goodbye to the mother, he took the child to the movies, apparently at a cinema located in that shopping centre. 

9. The mother left and went off to have coffee with her friend, Mr C, and await the company of another person who was to join them at a Suburb F cafe, not too far from the E Shopping Centre.  What happened then is that the father and the child came out of the cinema and were going down the escalator from some part of the shopping centre to the other when the father told the child that the plan was for them to go to have a holiday at H Town, in a motel attached to a caravan park at which they had stayed before. 

10. It seemed that that did not totally accord with the child’s wishes or hopes. The father said today that there was some mixed reaction from the child on the previous occasion that they had holidays there. He principally attributed that to the fact that he had rented only one room in which there was a bed for him and another for the child.  This time, though, he said, conscious of that, and aware of the need to make a different arrangement, he told the child that he had organised for her to have her own room at the motel.  Nevertheless, apparently still displeased, the child kicked him in the shin and told him of her displeasure and either walked off quickly or ran off from his presence in the shopping centre.  He was unable to keep up with her or keep track of her and she disappeared somewhere in the shopping centre. 

11. Soon thereafter, unable to locate her, he rang the mother. With some degree of fortune, she was still in the Suburb F area not far from the shopping centre and was able to return to the shopping centre immediately to help try and find the child.   The father though, had in the meantime contacted the shopping centre management staff and had had messages put over the loud speak system for the child on at least three occasions in the period of 45 minutes or so that she was missing.  It was not an inappropriate or unreasonable thing for him to do.  As I understand the evidence, I do not think this is in dispute at all, the mother arrived, she took up with police who were also looking for the child and at some point thereafter the child was brought to her and the police by shopping centre security staff who had located her. 

12. Apparently, police determined after talking to the child that it was appropriate to return her to her mother’s care and not to her father’s care.  The father was somewhat distressed about that in the circumstances and let his distress and unhappiness with that be known to the police officers. However, he later went back and apologised to them.  The mother reports, from her side, that the child told her that her father was “mean”.  I do not recall there being much more in her affidavit as to what it was that was discussed between the mother and the child about why the child chose to act in the way that she did. 

13. The mother simply makes a submission that the father effectively did not carry out or meet what she describes as the duty of care required of him in respect of his child and, as such, she says and makes the submission that it is not in the child’s interests to continue to be going to spend time with the father pursuant to the existing orders or indeed pursuant to any that I might make in my judgment reserved from the trial. 

14. As became evident in discussion between bench and the mother during the course of hearing this Application in a Case, there was no evidence before me, nor did the mother even try to assert during oral submissions to me, that she had ever sat down with the child and had a discussion with her and told her that no matter what happens when she is with her father in circumstances such as this, she should do nothing like run off from his care and put herself in any sort of risk.  Nor did she, when I asked, tell me, and nor is there any evidence, that she has actually sat down with the child since and explained to the child that her actions were inappropriate, unreasonable, unsafe and not acceptable and that she should make sure that she never does it again in the future.

15. Having heard the trial in this case, although I am still reserved, and having heard submissions from the Independent Children’s Lawyer, I do consider that there is merit in the view that the mother has not taken sufficient steps to ensure that behaviour like this does not occur.  I will not go as far as saying that I accept the submissions made by Mr Dooley today that one might think that the whole episode was orchestrated by the mother. There has not been any cross-examination of the parties today, so I am not quite prepared to say today that I agree with such a submission and that I am satisfied that the mother orchestrated the events that happened on that day. However, as I said from the bench, it seems remarkably coincidental that it happened on a day when the mother remained in very close proximity to the shopping centre where the events actually happened for the entire duration of what must have been a couple of hours during which the father and the child watched the entirety of a movie after she was handed into the father’s care. 

16. In any event, I am, on these interim hearings, still mandated to consider matters having regard to the best interest of the child as being the paramount consideration.  The mother asserted not once, not twice, but several times during the course of her relatively short submissions that the circumstances are “totally unacceptable”.  To that extent, I agree with her.  It is totally unacceptable for a 12 year old child to be running away from her father in circumstances such as this case. To the extent that she is in any way being encouraged by her mother to do so, or to the extent that she is in any way not being discouraged by her mother from doing so, it is totally unacceptable. 

17. As I said from the bench when I was hearing the mother, having heard the trial in this case and having seen and heard the parties before me on several occasions now, I am quite satisfied that the mother really is not genuine when she says that she wants her daughter to enjoy and have a meaningful relationship with the father.  From time to time she lapses into saying things about the father without realising that her words convey to me that there is a deep-seated feeling on her part that she really would rather the father disappear from her life and more particularly the life of her daughter.  The damage that outcome would do to her daughter is obviously something beyond the immediate comprehension or understanding of the mother. About that, I can only say it is extremely regrettable and that hopefully one day she will come to realise the error of her ways in that regard.

18. In short, I am simply not persuaded by the mother’s evidence or the submission she makes that it is in the child’s best interests to discharge the requirement that she spends time with her father, and I will not do that.  I simply dismiss the mother’s application to discharge the existing orders pending the delivery of my final judgment.

19. The father has, in his response to an application, also sought some variation to Justice Austin’s interim orders.  It became apparent, however, that the variation he seeks is prefaced upon some view that the parties might not get a decision from me for some time, particularly having regard to the fact that the most significant variation he sought is to the Christmas holidays this year where he seeks a block of three weeks instead of the two singular blocks that Justice Austin’s interim orders provide for.  Having been assured by me that the parties will get a decision before then, he was less inclined to press that application. I formally dismiss the applications contained in the Response to an Application in a Case filed by the father.

20. Additionally, I just want to put in these reasons my acknowledgement that the father had also filed an Application for Contravention on 15 February 2016.  The father has just confirmed, when he filed his Application for Contravention and supporting affidavit on 15 February 2016, he was not aware that the mother had filed the Application in a Case to discharge the orders that were filed on 15 January 2016. That being the case, his Application for Contravention was not filed motivated by some desire to simply somehow respond to the mother and get back at her. It was apparently filed motivated by a desire simply to reinstate his daughter’s time with him. 

21. When the matter came on before me this morning and I said a few things that arose from some of the preliminary feelings I had about the matter, having already read all the material that the parties ultimately relied upon, the father demonstrated immediate willingness to withdraw and not proceed with the application for contravention. It being clearly apparent that he seeks no retribution or punishment as against the mother but is motivated simply out of a true desire to have a meaningful relationship with his child and that his Application for Contravention was simply filed to ensure that the orders that Justice Austin made at least are complied with on an ongoing basis so that his 12 year old child again begins to spend time with him pursuant to those orders.

22. The mother’s application having been dismissed, the orders of Justice Austin remain extant. They are in place. They exist. They are legitimate, valid orders of this Court. They are binding upon the parties and it is expected to they will be complied with. That means from 9.00 am this Saturday, the child is to start spending time with the father again in accordance with these orders for the alternate weekends during school term and for the first week of the school holidays.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 March 2016.

Associate: 

Date:  18 March 2016