Illgen & Yike (No 2)

[2016] FamCA 208

FAMILY COURT OF AUSTRALIA

ILLGEN & YIKE (NO 2) [2016] FamCA 208

FAMILY LAW – CHILDREN – Interim parenting – how much time should the children spend with the father – should the time be supervised or unsupervised –best interests of the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Illgen

RESPONDENT: Mr Yike

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 6006 of 2008

DATE DELIVERED: 23 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Carew J

HEARING DATE: 21, 22 and 23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

RESPONDENT – LITIGANT IN PERSON: Mr Yike

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ryan of Legal Aid NSW Parramatta Family Law

BY CONSENT AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:

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

   (a)For two periods of two hours in Sydney on each of 12 and 13 April 2016 as follows:

   (i)In the presence of family therapist and clinical psychologist Ms D between 10.00am and 11.00am in her rooms at E Street, Sydney.

   (ii)Thereafter between 11.00am and 12.00pm for the purposes of the child attending with the father for time in or around the area of Ms D’s rooms.

   (iii)The parents shall meet one half share of the costs of engagement with Ms D.

   (iv)The mother and her husband Mr Illgen shall deliver the child the child to the rooms of Ms D no later than 10.00am on each occasion that the Centre is facilitating changeover pursuant to these Orders and shall ensure that she/he leaves the premises and the vicinity of the premises by no later than 10.10am.

   (v)The father shall attend the rooms of Ms D no earlier than 10.20am.

   (vi)The father shall return the child to the rooms by no later than 11.45am and shall ensure that he leaves the premises and the vicinity of the premises by no later than 11.50am.

   (vii)The mother or her husband Mr Illgen shall attend at the rooms no earlier than 12.00pm for the purposes of collecting the child from the rooms.

   (b)On 30 April 2016 from 9.00am to 12.00pm in Sydney with changeover to occur at F Contact Centre at G Street, Suburb H in the terms of Order 2 herein.

   (c)On 14 May 2016 from 9.00am to 1.00pm in Canberra with changeover to occur at the I Contact Centre at J Street, Suburb K in the terms of Order 3 herein.

   (d)On 28 May 2016 from 9.00am to 2.00pm in Sydney with changeover to occur at F Contact Centre at G Street, Suburb H in the terms of Order 2 herein.

   (e)On 11 June 2016 from 9.00am to 3.00pm in Canberra with changeover to occur at the I Contact Centre at J Street, Suburb K in the terms of Order 3 herein.

   (f)Thereafter on 25 June 2016 and each fourth Saturday thereafter from 9.00am to 4.00pm in Sydney with changeover to occur at F Contact Centre at G Street, Suburb H in the terms of Order 2 herein.

   (g)Thereafter on 9 July 2016 and each fourth Saturday thereafter from 9.00am to 4.00pm in Canberra with changeover to occur at the I Contact Centre at J Street, Suburb K in the terms of Order 3 herein.

2. In order to facilitate changeover at F Contact Centre at G Street, Suburb H:

   (a)Each parent shall register with the Centre for the use of changeover services and complete any intake paperwork required by that service to be completed within 7 days.

   (b)The mother or her husband Mr Illgen shall deliver the child the child to the Centre no later than 9.00am on each occasion that the Centre is facilitating changeover pursuant to these Orders and shall ensure that she leaves the premises and the vicinity of the premises by no later than 9.10am.

   (c)The father shall attend the Centre no earlier than 9.15am at the commencement of each period in which in terms the Centre is facilitating changeover pursuant to these Orders.

   (d)The father shall return the child to the Centre by no later than 15 minutes prior to the conclusion of his time with the child pursuant to these Orders and shall ensure that he leaves the premises and the vicinity of the premises by no later than 10 minutes prior to the conclusion of his time with the child pursuant to these Orders.

   (e)The mother or her husband Mr Illgen shall attend at the Centre no earlier than five minutes before the end of the father’s time with the child pursuant to these Orders for the purposes of collecting the child from the centre.

   (f)The parties shall share the costs of the F Contact Centre in equal shares.

3. In order to facilitate changeover at I Contact Centre at J Street, Suburb K:

   (a)Each parent shall register with the Centre for the use of changeover services and complete any intake paperwork required by that service to be completed within 7 days.

   (b)The mother or her husband Mr Illgen shall deliver the child the child to the Centre no later than 9.00am on each occasion that the Centre is facilitating changeover pursuant to these Orders and shall ensure that she leaves the premises and the vicinity of the premises by no later than 9.10am.

   (c)The father shall attend the Centre no earlier than 9.15am at the commencement of each period in which the Centre is facilitating changeover pursuant to these Orders.

   (d)The father shall return the child to the Centre by no later than 15 minutes prior to the conclusion of his time with the child pursuant to these Orders and shall ensure that he leaves the premises and the vicinity of the premises by no later than 10 minutes prior to the conclusion of his time with the child pursuant to these Orders.

   (e)The mother or her husband Mr Illgen shall attend at the Centre no earlier than five minutes before the end of the father’s time with the child pursuant to these Orders for the purposes of collecting the child from the centre.

4. The Independent Children’s Lawyer have liberty to relist these proceedings in the event of non-compliance with these Orders or notice being given of a difficulty in implementing these Orders.

5. The mother shall facilitate the father’s time with the child and shall take all reasonable steps to ensure that the maternal grandfather does not attend changeover with her or on her behalf or with her husband Mr Illgen.

6. The parents and the child shall attend family therapy with Ms D.

7. To facilitate the family therapy:

   (a)Each parent shall contact Ms D within 3 business days of the Independent Children’s Lawyer providing the father and the mother’s solicitor with her name and contact details.

   (b)The mother shall ensure that the child attends all appointments with Ms D as directed by her and shall continue to ensure the child’s attendance until such time as Ms D advises in writing that the child’s attendance is no longer required.

   (c)The mother and the father shall each personally attend appointments with Ms D as directed by her.

8. The parents shall meet all costs associated with the family therapy in equal shares.

9. Leave is granted to the Independent Children’s Lawyer to provide to Ms D with copies of the following documents:

   ·The Family Report of Family Consultant Ms L dated 25 May 2015.

   ·Documents produced under subpoena by the M Contact Centre.

   ·A copy of the Orders made by Justice Carew on 21, 22 and 23 March 2016 and the Reasons delivered on 23 March 2016.

10. The father shall be at liberty to contact the child’s school at N School in Canberra and obtain information from the school in relation to the child’s education and general progress and this Order shall be sufficient authority for such information to be provided to him.

11. The mother shall notify the father within 48 hours of any serious illness, medical emergency or hospitalisation of the child and provide the father with the name and contact details of the child’s treating health practitioner.  This Order shall be sufficient authority for the father to contact the child’s treating health practitioner and obtain information from the practitioner in relation to the child’s health and prognosis.

12. The mother shall complete the “Keeping Kids in Mind” parenting after separation course within 3 months of the date of these Orders and shall provide the father and the Independent Children’s Lawyer with written confirmation of her completion of this course.

13. The mother shall use her best endeavours to ensure that her husband, Mr Illgen, completes the “Keeping Kids in Mind” parenting after separation course and shall provide the father and the Independent Children’s Lawyer with written confirmation of his completion of this course

14. The father be at liberty to introduce his wife and two children to the child but only after he has consulted and sought advice from Ms D.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Illgen & Yike (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 6006  of 2008

Ms Illgen

Applicant

And

Mr Yike

Respondent

REASONS FOR JUDGMENT

1. Although the parties have now reached agreement for interim orders I provide these short reasons for the assistance of the parties and the Court when this matter next comes before the Court.  I have dealt with the matter as an interim hearing.

2. This matter was listed for a three day final hearing commencing 21 March 2016.  The mother did not attend on the first day and through her counsel sought an adjournment.  Her application for an adjournment was dismissed and an order was made that she attend the second day in person and bring the child, B born in 2007 with her to the Child Dispute Services Child Minding Centre by no later than 9.45am.

3. The parties to this dispute are the biological parents of the child.  They were married in 2006, separated in June 2008 and divorced on 10 March 2009.  The mother has since remarried and has a daughter.  The father has also remarried and has two children, the youngest of whom was born prematurely in 2015 and requires regular medical supervision.  The mother has just started a new job in hospitality and works Friday and Saturdays and other days.  Her only free days are Sunday and Monday, however, her husband works Monday to Friday only and is available, if required, with a drivers licence and access to a vehicle on both Saturday and Sunday.

4. The father is a professional and works long hours, but is able to work from home at times.  The father lives in O Town in Region P in New South Wales.  The mother lives in Canberra in the Australian Capital Territory.  The distance between the two towns is about 291 kilometres and the distance between Canberra and Sydney is about the same distance.  The father has spent very little time with the child and the parties are in dispute as to the reasons for that fact.  However, it is common ground that prior to 22 March 2016, the last time the child saw his father was during the interviews for the family report in May 2015 and prior to that, it was on 5 April 2014.

5. The family report dated 25 May 2015 recommended that the child begin to spend regular time with the father.  The independent children’s lawyer supports regular time. 

6. The mother complied with the order made by me on 21 March 2016 and with the consent of the parties, the child and his father spent time together between 12.30 pm and 2.00 pm or thereabouts on 22 March 2016. 

7. The senior family consultant, Mr Q, facilitated the time initially and reported through counsel for the independent children’s lawyer as follows:

   a)The interaction between the child and his father was entirely appropriate.

   b)The child was a little nervous initially.

   c)The child settled well and readily agreed to leave the building with his father.

   d)The father and the child returned to the building at about 1.40 pm.

   e)The child was observed upon his return and there were no issues.

   f)The visit went very well.

8. Mr Q was not required by the parties to attend and give evidence personally nor was he required for cross-examination.  The mother was granted leave to give further evidence-in-chief and relevantly stated:

   a)She and her husband and two children relocated to Canberra on 8 January 2016.

   b)Her husband who is a member of the Defence Forces was transferred.

   c)Although they could have remained in Sydney for a further few years, if they did not move now they would not have had the option of relocating to Canberra or Newcastle which was their preference as either place is still within driving distance of Sydney.

   d)The distance between Canberra and Sydney takes about three hours to drive and a similar time from Canberra to O Town where the father lives.

   e)The main reason supervision of time is needed is because the child does not know his father and he needs to have another adult present to whom he can say “it is enough”.

   f)She envisages that a reasonable time regime would encompass supervision for the first few occasions and then unsupervised with time commencing for two hours and increasing by an hour each visit to a maximum of seven hours and then a review of time.

   g)She also envisages that if the time progresses well, the child will eventually spend weekend and holiday time with his father. 

   h)Although she started her new job on 8 March and has been working long hours, her hope is that within the next month her hours of work will be between 10 am and 6 pm on Tuesday to Saturday each week. 

   i)The child currently attends N School where he commenced on 2 February 2016.

   j)He has not attended his previous school, C School, this year.

   k)She informed the C School in November that she would be relocating to Canberra in the New Year.

   l)She informed her solicitor, but did not inform the father.

   m)Her main concern about the child spending time with his father is that once the father is re-introduced, he will again drop out of the child’s life.

9. Ms Snelling, counsel for the mother, initially submitted that despite the concessions made by her client, supervision was required because of historical allegations that the father used marijuana and the fact that an apprehended violence order was made in 2010 for two years as a result of allegations by the mother that the father had made threats against her.  I note that the father consented to that order without admission and it expired in April 2012.  The father says the mother was, in fact, the aggressor during the relationship. 

10. Ms Snelling submitted that the progression of time should be cautiously slow and progress in tandem with family therapy.  She submitted that the father’s parenting capacity is as yet untested.  The independent children’s lawyer submitted that there was no factual basis for supervision as the evidence did not support a finding of unacceptable risk.  The allegations of drug use related to historical use of marijuana and while there were historical allegations by each party of family violence, there was no evidence of any family violence for at least four years.  The father did not oppose supervision.  His submission was that he just wants to see his son.

11. The reality is that the child does not know his father and the issue for the court is how the child can spend time with his father in order to develop a relationship with him.  It is apparent that the mother has left the decision of whether he wants to spend time with his father up to the child.  The difficulty with doing so is that neither she nor her family seem to support the child spending time with his father and this would, no doubt, be known to the child whether explicitly stated or not. 

12. The time spent at the M Contact Centre on 5 April 2014 was a great success.  The M Contact Centre notes form part of the evidence at exhibit 5.  The child and his father played together for about two and a quarter hours, yet no more time occurred because the child said he did not want to spend time with his father.  The comments made by the maternal grandfather leave the reader in no doubt that he did not support the time.

13. It is encouraging that the time spent during the family report interviews and the time spent on 22 March 2016 was so successful.  I note that the mother expressed anger to the family report writer that there had, in fact, been time spent between the child and his father on this occasion.  But the fact that the mother and her family have been historically unsupportive of time is something that will need to be managed so that the child is free to have a relationship with his father as is his right under the Family Law Act.

14. I accept the submission of the independent children’s lawyer that the issue is how best to make the transition from the mother to the father at the commencement of time so as to ensure that time is successful. 

15. The parties have now reached agreement on all matters on an interim basis and I commend them for that.

I certify that the preceding fifteen paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 March 2016.

Associate:

Date:  5 April 2016