Hillier and Olly

[2018] FamCA 691

FAMILY COURT OF AUSTRALIA

HILLIER & OLLY [2018] FamCA 691

FAMILY LAW – CHILDREN – Parenting – Where interim parenting and final property orders were made after the trial in 2016 – Final parenting orders made giving the mother sole parental responsibility and for the child to spend supervised time with the father – Order made for time to cease if the father does not attend two visits in a row.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Hillier & Olly (No. 2) [2016] FamCA 955

APPLICANT: Ms Hillier

RESPONDENT: Mr Olly

INDEPENDENT CHILDREN’S LAWYER: Suellan Walker-Munro

FILE NUMBER: BRC 2234 of 2015

DATE DELIVERED: 7 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 29 August 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Walker-Munro

Legal Aid Queensland

Orders

IT IS ORDERED

Parenting

1. That all previous parenting orders and any previous parenting plans are discharged.

2. That the child, G born … 2010, (“the child”) shall live with the mother.

3. That subject also to paragraph (4) of these Orders, the mother shall have sole parental responsibility for making decisions on all “major long-term issues” (as that term is defined in s 4 of the Family Law Act1975 (Cth) (“the FLA”)) in relation to the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   (a)Inform the father in writing of the decision she is wanting to make;

   (b)Seek the father’s written response in relation thereto;

   (c)Consider by reference to the child’s best interests any such response received from the father prior to making any such decision; and

   (d)Advise the father in writing as soon as reasonably practicable of her ultimate sole decision.

4. That notwithstanding paragraph (3) of these Orders, the mother shall not change the child’s name or place of residence in a way that makes it significantly more difficult for the child to spend time with the father, without the prior written agreement of the father.

5. That commencing as soon as can be arranged, but by no later than the end of October 2018, the child shall spend time with the father, for up to 3 hours (determined by how many hours can be facilitated by the Centre and agreed to be paid for by the father), supervised at the N Centre, on one set Sunday each month (eg the first Sunday of each month or the second Sunday of each month or the third Sunday of each month, etc), such set Sunday to be determined by the management of the Centre (after taking into account any preferences expressed by the father and the mother). 

6. That the father shall pay the costs of the supervision at the said contact centre.

7. That the father shall confirm his intended attendance at the said contact centre by no later than 4:00 pm on the Thursday prior to the set Sunday session by telephoning or email the management of the said centre and by emailing the mother.

8. That in the event that the father does not confirm, by email, his intended attendance at the said contact centre on the following Sunday to the mother by 4:00 pm on the relevant Thursday, the mother shall not be obliged to present the child to the said contact centre at the allotted time on the following Sunday. If she does get that email confirmation, she shall be obliged to attend and deliver the child at the allotted time on the following Sunday.

9. That in the event that the father does not attend the said centre on the allotted Sundays for two consecutive monthly visits for any reason (other than the said centre being unavailable for those two visits) then the child’s time with the father pursuant to these Orders shall cease and the mother shall not be obliged to continue to present the child for such visits.

10. That the said Contact Centre shall be provided with a copy of  these Orders and the reasons for judgment, along with the Orders and reasons for judgment of November 2016, by the Independent Children’s Lawyer who is discharged upon undertaking that task.

11. That the father is restrained from harassing, intimidating, threatening or assaulting the mother and from going within 100 metres of the mother’s residence or place of employment.

12. That the father is at liberty to attend parent and teacher interviews at the child’s school and to speak directly with the child’s teacher and school principal concerning the child’s academic progress and school attendance, save that he shall arrange his attendance at such events or appointments so as not to come into contact with the mother or the child, and the father is at liberty to obtain from the school copies of any reports, school photographs or other documents that the school administration usually provides to parents of its students, with the mother to inform the school of this paragraph of these Orders as soon as practicable.

13. That each parent shall provide the other parent with his and her postal address and email address and shall inform the other of any change to those addresses within twenty four hours of any such change.

14. That the father shall be entitled to write and send cards, letters and gifts to the child at the mother’s postal address and the mother shall be entitled to open any such cards, letters and gifts and assess their appropriateness to be read or given to the child and in the event that she determines that any such card, letter or gift is inappropriate to be read or given to the child, she shall advise the father in writing of that decision and the basis for it within seven days of such determination.

15. That the mother shall keep the father informed as to any serious illness or accidental injury suffered by the child.

16. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), 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 Fact Sheet attached hereto and these particulars are included in these Orders.

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 Hillier & Olly 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 2234 of 2015

Ms Hillier

Applicant

And

Mr Olly

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 11 November 2016, nearly two years ago, after a trial, I made parenting Orders and property adjustment Orders in these proceedings and published written reasons for making those Orders. These reasons for judgment should be read in conjunction with the reasons for judgment I published back then as Hillier & Olly (No. 2) [2016] FamCA 955.

2. Those Orders included parenting orders that were only interim, made to provide a process by which the father could build his way into a regime of having the parties’ daughter spend regular, unsupervised time with him.

3. Those Orders provided for him to continue to attend upon a family therapist to work towards improving his insight into the effect of his attitudes and behaviour towards the mother upon his co-parenting relationship with the mother and his parenting relationship with the child. At that time, the father and child were not spending any time together.

4. Those Orders acknowledged the possibility that the parties might then reach agreement as to the terms upon which the child’s time with the father is to commence on a supervised basis, but listed the matter for further mention before me in any event on 18 April 2017.

5. On that day, with the consent of the parties, the matter was adjourned to 17 October 2017 for further mention as progress had been slow up to that point in time.

6. On 17 October 2017, the matter was mentioned and on the submissions of counsel appearing for a newly appointed Independent Children’s Lawyer, was again adjourned because progress had remained difficult and slow. I listed it for further mention on 19 February 2018.

7. At the mention on 19 February 2018, the father appeared again without legal representation. So did the mother. Counsel appeared for the ICL. Indeed, I understand that barrister to be ‘in house counsel’ with the Legal Aid Office and to be acting as the ICL herself. That day, with the consent of the parties and at their request, the interim orders I had made in November 2016 for the father to attend family therapy were discharged and I made the following further interim orders:

   2.That the mother shall make the child, G born … 2010, (“the child”) available for one further appointment with Ms H and the father shall likewise attend that appointment, on such a day and at such time as may be able to be arranged between the parties and Ms H.

   3.That the father shall confirm his attendance at that appointment, no later than 24 hours prior to the scheduled time, with the mother by way of email and with Ms H by telephone, and in the event that the father does not so confirm the mother shall not be obliged to present the child at that time.

   4.That the father shall pay the costs of that appointment, including any cost of his failure to attend.

   5.That thereafter, the father shall spend time with the child, supervised at the Suburb J Children’s Contact Centre, on the last Sunday of each month as may be able to be facilitated by the centre.

   6.That each parent shall ensure that they undertake any processes required by the contact centre to facilitate the commencement of that time.

   7.That the father shall pay the costs of the children’s contact centre.

   8.That the father shall confirm his attendance at the contact centre, no later than 4.00 pm the Thursday prior, to the mother by way of email and to the contact centre by way of telephone or email.

   9.That in the event that the father does not confirm his attendance at the contact centre to the mother, she shall not be obliged to present the child to the contact centre.

   10.That in the event that the father does not attend the contact centre for two (2) visits, for any reason (save as for the centre being unavailable), then the father’s time pursuant to these orders is suspended.

   11.That in the event that the father’s time is suspended in accordance with Order 10 above, the Independent Children's Lawyer shall have liberty to reapply.

8. I again adjourned the matter for further mention on 29 August 2018.

9. On that day, the father appeared again without legal representation. So did the mother. The same barrister appeared for the ICL. The mother relied upon an affidavit she had filed on 23 August 2018. In that, she detailed that she had spent four sessions with the family therapist herself in early 2017. She also deposed to telephone conversations she had with the father, guided and facilitated by the family therapist. She deposed to having made the child available for two one hour family therapy sessions with the father and the family therapist. The first one was on 7 October 2017. The father did not turn up at the family therapist’s rooms for the second session on 8 January 2018, so it was rescheduled and held on 14 March 2018.

10. The parties were then to move to supervised time at the Relationships Australia Children’s Contact Service in Region I in accordance with the February 2018 Orders. After intake interviews that service declined to offer a supervision service to the family. Subpoenaed records tendered into evidence before me on 29 August showed the following reasons:

    -    Risk to staff safety due to [father’s] described behaviour when engaging [in family therapy].

    -    The high level of conflict current between parties as a prohibiting factor to not progress toward self-management whilst using the service.

    -    The willingness and ability of [father] to adhere to the service agreement in regards to following instructions and guidance given by [Children’s Contact Service] staff.

11. The ICL then arranged for a private, commercial contact centre in Region I to offer the family a supervised service. The mother attended her intake appointments. The father did too. A supervised contact session slot was made available to the family on Sunday, 5 August. The mother confirmed her availability. The father did not take up the offer of the slot. He apparently had taken a work contract.

12. There was also evidence that protection order proceedings remain pending as between the mother and the father in the Suburb K Magistrates Court and discussion about the mother and the father’s respective perspectives of the basis for those in Court on 29 August, revealed that the level of conflict between the parties has barely abated despite two years having passed since the trial.

13. A copy of an email written by the father and sent to the mother and the ICL on 28 August 2018 was also tendered into evidence. It was nearly three pages long. It was unreasonably long and, respectfully, without much substance to its content, save that in the end the father stressed, notwithstanding the position he advanced at the trial two years ago, that he craves an equal shared care arrangement for the child. He says little, if anything, about committing to a regular periodic supervised contact regime.

14. The mother asked the Court to simply finalise the proceedings by making an order that the child does not spend time with the father or communicate with him. She asserted that she and the child need finality and, effectively, that the father has not availed himself of the chance the Court gave him almost two years ago. There is some merit in that submission.

15. The ICL submitted that more orders should be made providing for the child to spend time with the father supervised at the Centre on the last Sunday of each month. The proposed orders include what might be described as a “guillotine order” or a self-executing default order. They provide for the child’s time with the father to be suspended if the father does not attend two consecutive visits in a row for any reason. They then give the ICL liberty to reapply.

16. The father began his submissions telling the Court that he did not like the rigidity of a session being set on the last Sunday of each month, but preferred orders that provided flexibility so that his sessions could be arranged around his other commitments such as work and his other daughter’s birthday and his step-children’s commitments.

17. I quickly determined that these proceedings do need finality and do need to be brought to an end and not simply be rolled over again for another six months allowing the father just to determine if and when he spends time with the child. The efficient use of the Court’s resources and the resources of the Legal Aid Office of Queensland and paramountcy of the child’s best interests dictate now that the family needs finality.

18. When I put this to the ICL, she agreed and submitted that the orders she proposed could be made final. The father did not support that and maintained that he should continue to be given the benefit of the orders only be interim (or temporary) thus keeping alive for him the prospect of getting equal shared parental responsibility for the child and unsupervised time with her.

19. But for the clear evidence that I refer to in my 2016 judgment about the child’s love of her father and her apparent enjoyment of her time with him, I would be inclined towards making orders as sought by the mother stopping the child’s time with her father completely. He simply has not demonstrated, despite the chance he has been given, the necessary change in attitude towards the mother or the commitment to rebuilding his relationship with his daughter.

20. However, for the child’s sake of having a chance to have a meaningful relationship with her father the final orders I will make will be those proposed by the ICL. They will give the father the opportunity to seriously demonstrate a commitment to rebuilding his relationship with his daughter but will provide the mechanism by which that chance is to be exhausted by including the self-executing default order the ICL asked for.

21. I make these orders with the expectation that they will not be enduringly long-term. Either one of two things will happen. Either the father will demonstrate his asserted commitment to his relationship with his daughter by attending each and every monthly visit for a long enough period to be able to support a change of heart by the mother or, at least, a fresh application by him to the Court to consider changing to an unsupervised regime of time with the child, or he will demonstrate a lack of true commitment by failing to attend two consecutive monthly sessions after which the mother will be entitled to simply cease taking the child to those sessions.

22. It is hoped, for the child’s sake, that it will be the former outcome and not the latter.

23. All the other interim parenting Orders made two years ago will now be made final and the ICL will be discharge.

24. I make the Orders that are set out at the commencement of these written reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 September 2018.

Associate:

Date:  7 September 2018