HUME & VERIZE

[2019] FamCA 439

FAMILY COURT OF AUSTRALIA

HUME & VERIZE [2019] FamCA 439

FAMILY LAW – CHILDREN – where there has been 21 months of supervised time between the child and the father – where the father seeks to move to unsupervised time – where the mother contends that supervised time ought to continue – consideration of risk – orders made for unsupervised time to commence.

Family Law Act 1975 (Cth) ss 60CC

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Hume

RESPONDENT: Ms Verize

FILE NUMBER: BRC 11197 of 2010

DATE DELIVERED: 9 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 26 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Cameron

SOLICITOR FOR THE APPLICANT: Hetherington Family Law

COUNSEL FOR THE RESPONDENT: Mr S Tan

SOLICITOR FOR THE RESPONDENT: Hooper Family Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms S Cleeland
Sarah Cleeland Family Lawyers

Orders

1. That Orders 2, 3, 7(a) and 7(b), 10 and 17 of the interim Orders made 10 April 2017 shall remain in full force and effect on an interim basis.

2. That commencing Saturday, 13 July 2019, the child, Y born … 2010 (“the child”) shall spend unsupervised time with the father as follows, unless otherwise agreed in writing, namely:

   (a)       On 13 July 2019 from 10.00am to 2.00pm;

   (b)       On 27 July 2019 from 10.00am to 2.00pm;

   (c)       On 10 August 2019 from 10.00am to 3.00pm;

   (d)       On 24 August 2019 from 10.00am to 3.00pm;

   (e)On Father’s Day, Sunday, 1 September 2019 from 10.00am to 3.00pm;

   (f)       On 14 September 2019 from 9.00am to 3.00pm;

   (g)       On 28 September 2019 from 9.00am to 4.00pm;

   (h)       On 12 October 2019 from 9.00am to 4.00pm; and

   (i)On Saturday, 26 October 2019 and on Sunday, 27 October 2019 from 9.00am to 4.00pm each day and each alternate weekend thereafter.

3. That unless otherwise agreed in writing, all changeovers are to occur at the B Group, Suburb D at the sole cost of the father.

4. That during the child’s time with the father, the father not denigrate the mother to or within the hearing of the child.

5. That the father not question the child about the child’s mother.

6. That the father permit the child to bring toys to and from his home with the mother and to and from his home with the father.

7. That the father refrain from taking the child to mass and/or church during the child’s time with the father, until 27 October 2019 when the child begins spending Sundays with the father.

8. That the father not discuss the Court proceedings with the child, nor engage the child in any conversation around when and/or if the child will be living with the father and/or spending increased time with his father.

9. That the father encourage the child to speak positively about the mother and share positive experiences about the mother.

10. That the father not photograph the child for any purpose other than as a recollection of a shared happy experience.

11. That unless in the event of an emergency, the father not present the child to a doctor, hospital, Queensland Police service or child welfare authority without first consulting with the mother.

12. That these proceedings be adjourned for Case Management Hearing at 9.30am on 4 December 2019 in the Family Court of Australia at Brisbane.

13. That each party file and serve a minute of further interim orders sought by no later than 4.00pm on 27 November 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 Hume & Verize 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 11197 of 2010

Mr Hume

Applicant

And

Ms Verize

Respondent

REASONS FOR JUDGMENT

1. As a result of orders made by a Federal Circuit Court Judge in April 2017, after a moratorium of time for six months, the child Y (date of birth … 2010) now aged nine years, began spending time with his father supervised at a contact centre on a fortnightly basis.

2. Prior to the orders made 10 April 2017 (“the said orders”), Y had lived in essentially an equal time arrangement between his parents, the father Mr Hume and the mother Ms Verize.  The change of circumstances must have been very confronting for the child who, at the time, had just turned seven.  The mother, who under the said orders, was granted sole parental responsibility, began counselling for the child with a Psychologist Dr C in August 2017, some weeks before supervised time commenced.

3. The child has, it seems by virtue of multiple mental health plans since then, continued to receive counselling.  The father has not been invited to attend or provide any information to the counsellor – despite the assertion that the focus of the counselling was to effectively re-establish the child’s time with the father.

4. In Reasons delivered orally on 6 February 2019, I set out a concerning history in this matter, which I do not now repeat.  What is apparent is that after the proceedings were transferred back to the Federal Circuit Court of Australia, the original Judge recused himself from further hearing the matter, and thereafter another Federal Circuit Court Judge transferred the matter to this Court as the estimated time for hearing was said to exceed five days.

5. Sadly however, the father’s Application to move from supervised time to unsupervised time filed (at the initiation of another Federal Circuit Court Judge) in May 2018 (and further amended twice since) was not dealt with by the Federal Circuit Court of Australia and was heard by me on 26 June 2019.  At that Interim Hearing, which all representatives acknowledged was truncated by the usual processes and where findings are (without further cross-examination) difficult to make, the father and mother were represented by Counsel – Mr Cameron and Mr Tan respectively – whilst the Independent Children’s Lawyer, Ms Cleeland, represented herself.

6. Mr Cameron urged the Court to now order unsupervised time whilst Mr Tan (who also provided helpful written submissions) contended that the time should remain supervised until a final hearing is set.  I indicated to the parties that it is not now possible for this matter (even if only taking five days of hearing) to be listed for trial this year.

7. For the reasons which follow, the Court has decided that the child Y should commence spending unsupervised day time with the father immediately, graduating from fortnightly visits of four hours to a full day, then to be two full days alternate weekends, at which time, the Court will consider whether a further final hearing is necessary.

Statutory framework

1. This current Application brings sharply into focus the need to balance the benefit to Y of having a meaningful relationship with the father (s 60CC(2)(a)) and the need to protect the child from harm including psychological harm (s 60CC(2)(b)), which factor must be given greater weight.

2. Of course, the child’s best interests are the paramount consideration and on an interim hearing, a full exploration of every relevant additional consideration under s 60CC(3) is not required, with the Court encouraged to direct its attention to the factors properly in contest (see Banks & Banks (2015) FLC 93-637).

3. With this framework in mind, I make the following observations.

Factors which encourage further caution and maintenance of supervised time

1. These factors include:

   a)Although not bound by the findings set out in the Reasons for Judgment of Judge Howard, such findings were made on that evidence before his Honour at that time.  As I understand the situation, as previously noted, the proceedings remained part heard although five days of evidence had been taken and extensive cross examination of the father took place;

   b)The Reasons for Judgment identified the following significant concerns which were the basis for the orders made at that time:

   i)Non-disclosure of the father’s diary (marked as Exhibit 16) containing apparently “musings” over hundreds of pages, of the father.  It seems that the contents were likely to form additional topics of cross examination of the father;

   ii)The father would benefit from some time to reflect and to receive necessary counselling (Reasons for Judgment at paragraph 16 which the experts at that time (Dr G and Ms L) indicated could be addressed through counselling);

   iii)The father instructed his Counsel to make an “inherently dishonest” concession that the mother was not abusive or neglectful in her parenting of Y (Reasons for Judgment at paragraphs 26 and 27) as the father still held these beliefs contained (in part) at paragraph 29 of his 27 January 2017 Affidavit;

   iv)The father revealed his mistrust of the mother by continuing to document and:

   (i)weigh the child;

   (ii)photograph the child “invasively”;

   (iii)engage with the child’s General Practitioner needlessly; and

   (iv)audio recording the child on his iPhone.

   v)The father continually “questions the child” (see for example at paragraph 39 of the Reasons for Judgment);

   vi)These are “evidence gathering” techniques and are likely, if they continue, to cause psychological harm to the child (Reasons for Judgment at paragraph 43);

   vii)The father is not capable of taking “on board advice and directions from professional people”, including Police who told him in March 2014 not to question “the child like this” (Reasons for Judgment at paragraphs [46] and [47]);

   viii)The father’s actions have caused, according to the independent expert Dr G “stress” for the mother and have been the main perpetuating factors to her symptoms of anxiety and depression and have impacted on her parenting of Y (Reasons for Judgment at paragraph [62]); and

   ix)The father’s withholding of the child Y “to ensure that he, the father got his own way in relation to the enrolment at the F School at Suburb M was nothing short of appalling parenting conduct” (Reasons for Judgment at paragraph [66]).

   Somewhat confusingly, his Honour said, at paragraph [74], that “if the matter had been settled last week it probably would have settled on the basis of an eight-week moratorium and alternate weekends with the father unsupervised thereafter”, but went on to say that with the further evidence that would not be in Y’s interests.  His Honour’s orders clearly anticipated that a review of supervised time would occur.  When he made the orders he did, I do not accept on a fulsome reading of his Honour’s Reasons, he anticipated at the time that supervised visits would occur for 21 months, as it has.

   c)The Independent Children’s Lawyer and the mother say I could not draw any comfort from the:

   i)counselling report of Ms N;

   ii)medical report of Dr R; or

   iii)statements of the father that he has developed insight.

   d)The mother, in particular, relies on the supervised contact notes (Exhibit 1) and in particular the notes for 27 November 2017; 17 February 2018 and 17 March 2018 to demonstrate that the father “has maintained the same undermining behaviour” (see submissions at [16]).

   e)The report of Dr C dated 24 June 2019, and her recommendation that:

   “It is essential to safeguard [Y’s] psychological, emotional and physical well-being.  As the insecure attachment to his father has not substantially ameliorated progressing to unsupervised access could be detrimental to [Y’s] well-being and his relationship with his father.”

   f)As I indicated during the Interim Hearing, I do not attach determinative weight to his recommendation; and

   g)The child expressed a view, contained in the first Dr C report, that he would prefer the visits to remain supervised.  That expressed view was given over nine months ago.

2. I also take into account that the mother’s final position, as indicated by her Counsel, is for the child to continue supervised time indefinitely.  It is not possible to properly assess how this position has been shaped by the mother’s recent marriage (in 2019) after a relatively short courtship.  This fact was not disclosed in the short Affidavit relied upon by the mother filed 19 June 2019 – and in my view ought have been disclosed, particularly as her husband is now a permanent member of the mother’s household and an ever-present male role model in the mother’s home.

Factors which support moving to unsupervised time now

1. The Court acknowledges that it is impossible to remove all risks from a child’s life.  However for Y, the risks identified at the time of the said orders of 10 April 2017 are known and a consideration of events since then is necessary in assessing, even on an interim basis, whether such risks are ameliorated and reduced.  In this context I assess the following matters as relevant:

   a)The father did, almost immediately after the said orders were made, get a referral from his General Practitioner to a counsellor.  The report from Psychologist Ms N (dated 26 April 2018) confirms the father actively engaged in 15 counselling sessions from 12 April 2017 to 26 April 2018, for the “treatment of anxiety related to the separation from his son, and the associated adjustment in the context of a custody matter”.  The Psychologist records that the father “reports that he has developed significant insight into his circumstances and also that it was imprudent of him to have engaged in the accumulation of evidence in relation to his son [Y] in any manner.  [Mr Hume] presents as a decent, credible individual with a genuine concern for his son’s welfare and future”.  I accept, like Dr C, her opinions are untested and collateral notes from appointments have not been viewed yet by the Court.  However, it can be accepted, that the father demonstrated immediate action on his counselling as ordered by Judge Howard;

   b)To the extent it may have been an issue during the trial in April 2017 that the father was unnecessarily engaging with Dr R to gather evidence about Y’s health, the letter of Dr R dated 4 May 2018 suggests that all visits to the doctor by Y prior to the said orders were “legitimate and necessary”.  It is clear Dr R had read the Reasons for Judgment and he did not give evidence at the hearing, although some of his records (according to Ms Cleeland) were subpoenaed and available to the Court;

   c)I have all the notes of the supervised visits (at least until 20 January 2019) – some 46 visits.  I note that the more recent extended “off site” visits are expensive (a cost met entirely by the father).  To the parents’ credit, it appears every fortnightly visit took place.  It might have been expected that Y’s first visit for six months (on 15 October 2017) would show some apprehension.  The report generally reveals an affectionate welcome and an engaging visit.  Over the 46 visits, I identified some level of questioning by the father but contextually, I do not hold the concerns Counsel for the mother submitted I should hold.  The father was suitably concerned about bullying allegations at school – recalling the mother did not tell the father anything about this issue.  It is clear that the mother, to her credit, engaged in and often agreed to flexible arrangements which have included visits to the father’s home and his church.  It is, in my view, disappointing that Dr C did not seek to view the contact centre notes before expressing an opinion about the “attachment” Y has with his father.  If she had done so, and even spoken to the father, her assessment of an “insecure” attachment might have been more reliable.  I agree with the overall assessment made by the Independent Children’s Lawyer, who had also read all the notes, that there were positive interactions throughout the visits, between the father and Y;

   d)Although I have expressed some concerns about the weight I can attach to the reports of Dr C, some of the concerns about the child not enjoying church services and, I infer, his lack of excitement in remaining at the contact centre are noted.  It is a pity Dr C was not aware of the significant changes in the mother’s household and, if aware, it is a concern that that significant change to the child’s environment does not rate a mention in her report.  It is not possible, and in fact is probably unhelpful, to speculate on how that change has affected Y and the dynamics between the child and his father.  Noting that the parents have been separated for most of Y’s life, it is hardly a surprising development at the adult level.  It was mentioned by the mother to Ms L, but not in the context of a commitment to marry and cohabitate; and

   e)When invited by the Court to respond to the submissions of Counsel for the father who asked rhetorically, “what more is the father expected to do” – no real answer was offered and it is hard to think what further steps he can take;

Conclusion

1. I am comfortably satisfied that it is in Y’s best interests that his relationship with the father be further developed and repaired, beginning with some day time unsupervised time.  I am not at this stage prepared to order overnight time, however I have decided to graduate it to each alternate weekend for both Saturday and Sunday before the commencement of the end of the year school holidays, when the matter will return to my list for consideration of overnight time and including holiday block time.

2. In my view, the situation that now exists is significantly different from the situation in April 2017, at least because:

   f)the child is now over nine years of age;

   g)over the last two years the child has had an opportunity to cement and reinforce his relationship with the mother with limited interaction from the father;

   h)there is no evidence to suggest the child is not happy at his home with the mother; at his school generally; and when spending time with his father;

   i)the increasing time I propose to order still gives the child ample opportunity to inform the mother, or for that matter Dr C, if he finds any of the father’s actions when spending time uncomfortable.  This is not an invitation for an “over reaction” to any comment the child may make.  I do not think it is in his best interests psychologically, at his age, to “empower” him to control or manipulate his parents.  However, I shall give the Independent Children’s Lawyer liberty to re-list before me if a matter of real concern, in her considered opinion, arises.

Form of order

1. The form of order which I pronounce today is, in my view, in Y’s best interests and is shaped by:

   a)Allowing the child to enjoy his father’s company – initially without an obligation to attend church.  Time shall therefore initially continue every alternate Saturday, before later in the regime, time on both Saturday and Sunday shall commence;

   b)I prefer every alternate weekend, rather than as the father proposes every weekend, so as to maintain a routine that has been established during supervised visits and thus allowing the child to spend recreational time in the mother’s home;

   c)Changeovers will take place, unless otherwise agreed, at the B Group.  The father is, in the interim, to pay for the costs of the centre facilitating handovers.  I appreciate this currently involves more travel for the mother than the father;

   d)I will incorporate the conditions which the Independent Children’s Lawyer has proposed in her email to the Court dated 27 June 2019.  I note the father’s solicitors have indicated their client’s acceptance of these conditions.  The only alteration to those conditions is that when the child is spending each Saturday and Sunday with the father he can resume, if he wishes, taking the child to mass on the Sunday.  The child, not surprisingly, considering the time during supervised visits taken up for attending church was probably (with travel) almost half of the time – expressed boredom.  Children are entitled generally to observe their parents practice their father.  I did not detect that the mother’s concerns about the father taking the child to church was a “clash of faiths”, but rather to take up the child’s sense of being bored.  This may become an issue in the future.

1. Whilst it is a matter for the Independent Children’s Lawyer and her legal aid funding, I would regard further expert assessment by Dr G and/or Ms L as premature unless a certain trial date is set.  I do not set a date now, as I still hold a view, when considering the history of these proceedings, that if further hearing and cross-examination of the parents proves unnecessary, that would be a good thing for these parents and, of course, Y.

2. I propose to list the matter before me in late November 2019 for further case management.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 9 July 2019.

Associate: 

Date:  9 July 2019