Illgen and Yike (No 3)

[2016] FamCA 1122

FAMILY COURT OF AUSTRALIA

ILLGEN & YIKE (NO 3) [2016] FamCA 1122

FAMILY LAW – CHILDREN: Interim orders – child to spend overnight time with the father

APPLICANT: Ms Illgen

RESPONDENT: Mr Yike

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 6006 of 2008

DATE DELIVERED: 15 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hill

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

SOLICITOR FOR THE RESPONDENT: Self-representing

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, Parramatta, NSW

Orders

1. The father shall spend time with the child, B Yike (also known as B Illgen), born … 2007, as follows:

   (a)From 9am Saturday until 2pm Sunday each alternate weekend commencing the weekend of 17 December 2016, unless otherwise agreed between the parties in writing. 

   (b)The handover for the child spending time with his father is to occur at McDonald’s R Town or McDonald’s O Town, the venue being at the mother’s election with the default handover being at McDonald’s R Town, unless the mother gives 24 hours’ notice otherwise. 

IT IS NOTED THAT

1. For handovers to occur at R Town Mr Illgen will facilitate the handover to the father.

2. The evidence to date in the trial indicates that handovers should occur promptly without extended interaction with the party handing the child over.

IT IS FURTHER ORDERED THAT

1. I set as trial dates in this matter 22 and 23 May 2017.

2. Each party may file further updating material relating only to events that have occurred since the Court attendance on 13 December 2016 provided that such affidavits are filed and served no later than close of business on 1 May 2017 and the parties are hereby placed on notice that failure to comply with this direction may result in the affidavit material not being read at the hearing. 

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 Illgen & Yike 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 CANBERRA

FILE NUMBER: PAC 6006 of 2008

Ms Illgen

Applicant

And

Mr Yike

Respondent

REASONS FOR JUDGMENT

1. This matter involves proceedings between the parents of the child, who is almost ten years old.  The final proceedings have had the first two phases of a Less Adversarial Trial (LAT), being three days and one day. 

2. The proceedings come with a history of the father having spent little time with the child.  Prior to the first three days of the LAT, the father had started to spend time with the child which was facilitated by Ms D.  This was not a smooth running arrangement and the father and the child did not spend all the time contemplated in the Court orders.  This contact between the father and the child marked a significant change for the child who, for disputed reasons, had spent little time with his father until then. 

3. Since the first part of the LAT in September of this year the child spent overnight time with his father on four occasions, both at the father’s home and also in Canberra.  He spent time with his half-brothers and with the father’s wife. 

4. A Family Report has been prepared by the Family Consultant, Ms T.  Despite the child having been in the father’s care immediately leading up to the assessment, apparently shortly before the assessment he went into the mother’s care and then declined to be assessed with his father.  The report recommends, in summary, final orders that provide for day time periods between the child and the father monthly until the child is ready for more.  This report has only recently been released. 

5. At the hearing the Independent Children’s Lawyer indicated the need to now call further evidence from Ms D who has been facilitating time.  The expectation of the Independent Children’s Lawyer is that the evidence to be given by Ms D of her observations of the child will be contradictory to that of the Family Consultant.  I indicated that the matter would be set down for two further days in April or May 2017.  This means it is necessary to make orders, as the current orders for the father to spend time with the child have come to an end.

6. The scope of the contest at the interim hearing is as follows.  The mother’s position is that there should be six hour periods in Sydney, on a fortnightly basis, for the child.  In coming to this conclusion, the mother has picked up the recommendation of the Family Consultant that Sydney is the appropriate venue for the child to spend time with his father.  The mother, however, asserts that it is too soon to have overnight time between the child and his father despite the fact that this has already been occurring.  She is concerned that he will suffer psychological harm.  It is clear that there is a high level of conflict between the parents.  There is a concern about the stress upon the child of overnight time which is added to by what the mother says about the father’s attitude to a certain religious faith.  She is concerned that the child will feel pressured and confused and it will be potentially harmful to him.  She asserts that he is not ready for overnight time. 

7. The Independent Children’s Lawyer and the father both seek fortnightly time, overnight and in Sydney.  They rely heavily on the Family Consultant’s view that interim as opposed to final orders ought to emphasise consistency.  In the context of the parents being unsupportive of each other, a concern that arises is that peeling back overnight time would send a negative message to the child about the father.  It must be remembered however, when considering this aspect of the Family Consultant’s evidence that her overall view is that she thinks that the child is not ready for overnight time.  However, the Independent Children’s Lawyer points in particular to the change in the child between the first part of the LAT and now.  In the first part of the LAT the mother described bed wetting, aggression and cutting of his own hair by the child as exhibiting the distress that he was finding at spending time with his father.  These matters occurred before the child started to spend overnight time with his father.  The evidence did not see a repetition of this behaviour at the current stage despite the transition to an increase in time to being overnight time.  This is a powerful consideration and indicates that the increase in time seemed to correspond with an increase in the child’s capacity to cope with the time. 

8. The balance in this case is a difficult one, because it concerns the child feeling pressured and insecure and stressed about overnight time.  The Family Consultant notes that overnights are the hardest part because they are the part at which a child might feel most vulnerable.  Against that portion of the balance it can be seen that the overnight time has not resulted in a repetition of the bed wetting and other behaviours.  There is a concern as to the uncertainty that a stopping and starting of arrangements will cause and that the Family Consultant’s view that below a fortnightly period of time is problematic where the relationship is unsupported by the mother’s family, that is, there is a need to counter-balance the view of the mother’s family about the father within the child’s mind.

9. There is also the concern that decreasing the time that the child spends with his father so that it is no longer overnight will adversely impact his view of the father.  I am concerned that restriction in removing the overnight time will adversely impact on the development of the relationship between the child and his father.  The s 60CC considerations most relevant at present relate to the benefit of a meaningful relationship for the child with his father.  The nature of the relationships that the child has with his father and with his mother and the mother’s family and with the father’s family and the child’s own characteristics, particularly the fragility and stress that he has experienced with the changes in his life about spending time with his father are all factors that have to be taken into consideration.  In these, that critical balance comes to consideration of the pressure and confusion for the child at spending overnight time and the impact of that upon him and his relationships, as against the risk to the relationship with his father of peeling back the time when he has only just got to the point of overnight.

10. It must be observed that the risks do not all tend in one direction, even when the risks are considered in the light of maintaining the relationship with the father.  There is a concern that too much too soon may be deleterious to the relationship with the father.  However, at this stage I consider that it is a higher priority to maintain consistency and stability in the relationship with the father and in a time that the child is spending with the father.  I am not prepared to cut out the overnight time pending the final trial of the matter.  Accepting that, in these interim proceedings it is considered that the fortnightly time is the best arrangement, the orders I make will provide for overnight time on a fortnightly basis.  All parties adopt the idea that the time ought to be conducted in the Region P and I propose to make that change as it is accepted by everyone as being in the child’s best interests.

11. I further note, that the evidence supports the idea that it is in the child’s interests for handovers to be short.  While it is potentially difficult, it appears important for the child that handovers are conducted quickly and without any lingering.    

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 December 2016.

Associate: 

Date:  22 December 2016