Illgen & Yike (No 4)

[2016] FamCA 1123

FAMILY COURT OF AUSTRALIA

ILLGEN & YIKE (NO 4) [2016] FamCA 1123

FAMILY LAW – CHILDREN – PARENTING – previous orders discharged

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Illgen

RESPONDENT: Mr Yike

INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

FILE NUMBER: PAC 6006 of 2008

DATE DELIVERED: 14 September 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hill

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

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

IT IS ORDERED THAT

1. I discharge the following Orders made by Justice Carew on 23 March 2016 being (1)(g), (1)(f), (2), (3), (4), (5), (6), (7), (8), (9), (12), (13) and (14).

IT IS ORDERED UNTIL FURTHER ORDER THAT:

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

   a.On Saturday 17 September 2016 from 9am until 4pm with changeover to occur at O Town McDonald’s;

   b.On Sunday 2 October 2016 from 9am until 4pm with changeover to occur at Suburb S McDonald’s;

   c.From 9am Saturday 15 October 2016 until 2pm Sunday 16 October2016 with changeover to occur O Town McDonald’s;

   d.From 9am Saturday 29 October 2016 until 4pm Sunday 30 October 2016 with changeover to occur Suburb S McDonald’s;

   e.From 9am Saturday 12 November 2016 until 2pm Sunday 13 November 2016 with changeover to occur O Town McDonald’s;

   f.From 2pm Sunday 20 November 2016 until Monday 21 November 2016 when the father shall return the child to the mother's care at the Canberra Family Court either (if directed to do so by the Family Consultant) at the commencement of the mother’s interview with the Family Consultant or otherwise immediately prior to the commencement of his interview with the Family Consultant.  The changeover at 2pm Sunday 20 November 2016 is at the Suburb S McDonald’s; and

   g.From 9am Saturday 3 December 2016 until 2pm Sunday 4 December 2016 with changeover to occur O Town McDonald’s.

2. The Independent Children's Lawyer shall have liberty to re-list these proceedings in the event of non-compliance with these Orders or notice being given by either parent of a difficulty in implementing these Orders.

3. The parents and the child shall continue to attend family therapy with Ms D.

4. To facilitate the family therapy:

   a.The mother shall meet with Ms D at her Canberra offices on Monday 10 October 2016 whilst the child is at school at a time nominated by Ms D;

   b.The mother shall ensure that the child attends an appointment with Ms D at her Canberra office on Monday 10 October 2016 after school and at a time nominated by Ms D;

   c.The father shall meet with Ms D at her Sydney offices on Wednesday 12 October 2016 at a time nominated by Ms D;

   d.The mother shall attend a telephone or skype appointment with Ms D on Monday 17 October 2016 at a time nominated by Ms D;

   e.The father shall attend a telephone or skype appointment with Ms D on Wednesday 19 October 2016 at a time nominated by Ms D;

   f.Each parent shall otherwise personally attend all other appointments with Ms D as directed by her until such time as Ms D advises the Independent Children's Lawyer that their attendance is no longer required;

   g.The mother shall otherwise ensure that the child attends all other appointments with Ms D as directed by her and shall continue to ensure the child's attendance until such time as Ms D advises the Independent Children's Lawyer that the child's attendance is no longer required;

   h.The Independent Children's Lawyer shall notify each parent in the event that she is advised by Ms D that the attendance of a parent or the child at family therapy is no longer required; and

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

5. The mother shall by no later than Friday 16 September 2016 notify N School in writing of the name and contact details of the father and shall do all things necessary to ensure that the father is listed in the school's records as the child's father and a person entitled to obtain information from the school in relation to the child's education and general progress.

6. The mother shall use her best endeavours to ensure that her husband, Mr Illgen, her father, Mr U Illgren, her mother Ms V Illgren and her daughter, W all attend the Family Report interviews at the Canberra Family Court on Monday 21 November 2016.

7. The father shall use his best endeavours to ensure that his wife, Ms Yike and his children X and Y Yike all attend the Family Report interviews at the Canberra Family Court on Monday 21 November 2016.

8. The Independent Children’s Lawyer is to provide forthwith to Ms D the primary trial affidavits of each of their parties and their witnesses.

9. Pursuant to s 62(g)(2) of the Family Law Act 1975 the parties and the child shall attend upon a Family Consultant nominated by the Manager Child Dispute Services on 21 November 2016 with the mother to attend at 9:30am, the father to attend at 11:00am and both parents and the child to attend at 2pm on that day at the Canberra Registry for the purposes of the preparation of a Family Report and for that report to consider in particular:

   a.    The benefit to the child of having a meaningful relationship with both of the parents;

   b.    The effect of any change in circumstances for the child including changes in the time that he is to spend with each of his parents.

   c.    The nature of the relationships between the child and the members of the mother’s household and the members of the father’s household;

   d.    The capacity of each of the parties to provide for the child’s emotional needs, in particular for their ability to support the other parents relationship with the child;

   e.    The nature of the relationship between the parties, in particular the degree of conflict between the parties and their ability to communicate with each other and decision making for the child and their ability to together provide emotional support for the child; and

   f.           Other matters as are seen as relevant by the Family Consultant.

10. The Family Consultant is granted leave to inspect all documents produced to these proceedings, either filed or on subpoena. 

11. The matter is further listed for trial before me on 14 December 2016 at 9am. 

12. The parties are a liberty to file one further consolidated trial affidavit from themselves and any witnesses they rely upon for the next day of trial no later than close of business 7 December 2016.  Such affidavit is restricted to matters occurring following the first three days of trial before me or directed to future matters concerning the nature of the orders sought and such affidavit is limited to matters contained in the list of identified issues as set out in the orders made by me on 12 September 2016. 

13. The Independent Children’s Lawyer is at liberty to issue subpoenas as necessary.

14. The terms of these orders are subject to textual amendment before publication.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Illgen & Yike (No 4) 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 CANBERRA

FILE NUMBER: PAC 6006 of 2008

Ms Illgen

Applicant

And

Mr Yike

Respondent

REASONS FOR JUDGMENT

1. In terms of dealing with the interim orders, I am obliged to apply the law as it is set out in the case of Goode & Goode.[1]  That obliges me to identify the competing applications made by the parties for an arrangement pending final hearing.  For the mother, it is put that I should retain the orders as they currently stand as made by Carew J on 23 March 2016.  That would see an increase in the father’s time with the child from an amount of approximately two hours per fortnight to approximately seven hours per fortnight.  It is put that if that regime remains in place then I should also retain the orders for family therapy as contained in Carew J’s orders. 

   [1] Goode & Goode (2006) FLC 93-286.

2. In support of that proposition, it is put that these orders are already in place and appropriately cater for arrangements for the child.  It is further put that these orders should be retained, in particular as the family therapy envisaged under the orders has not yet taken place.  The current orders were put in place pending a final hearing.  It is not clear to me whether or not Carew J was aware of when a final hearing might take place in this matter.  Since those orders were put into place, the final hearing has commenced and has proceeded for three days in front of me as the first three days of a Less Adversarial Trial. 

3. During the trial so far, on either party’s case there has been wide divergence from the orders as were set out by Carew J.  That is, they have not been complied with to date.  If they had been complied with to date, the child would have already been spending seven hours per fortnight with his father, rather than the two that is currently, but not consistently, occurring.  The alternative position is that as set out in exhibit ICL6, which are the interim orders proposed by the Independent Children's Lawyer.  In general terms, those orders provide that they will commence generally in accordance with the orders of Carew J.  That is, for the next two fortnights the child would see his father for a period of seven hours each fortnight.

4. However, where they diverge from Carew Js orders is they then make provision for overnight time to commence.  There are specific orders in relation to family therapy.  As best as I can see, at present there are no orders made in respect of parental responsibility. 

5. Given the interim nature of these proceedings, I am not prepared to apply the presumption of equal shared parental responsibility and intend to continue with the position as it currently stands.  In any event, neither party seeks an order in the interim for equal time or for substantial and significant time, and I can readily consider that neither of those options is in the best interests of the child in the short term interim.  The critical factors to identify what is in the child’s best interest in the interim, of course, are set out in s 60CC.  Of those factors the following seem to be identified as the most significant.

6. There was a late raising of a question of the risk of neglect on the part of the child if he was to spend overnight time with his father.  This risk was presumably associated with overnight time rather than blocks of seven hours at a time.  Noting that the material has been prepared for this trial as though these three days would be the final hearing of the matter, there is no evidence to suggest that there is an issue of neglect on the part of the father.  There is no evidence to suggest that he might pose such a risk, although I accept what counsel for the mother says is that there is an absence of risk as to what the practical arrangements would be. 

7. Despite the fact that there is a lack of evidence as to practical arrangements, I find that there is no evidence which would establish that there is an unacceptable risk of neglect on the part of the father.  The second of the primary considerations is that which looms largest in the case, and that is the benefit that the child might receive from a meaningful relationship with his father.  That matter is key to an interim determination.  Intrinsically bound with that determination is a consideration of the nature of the relationships that the child has with each of his parents and other significant people, and the capacity of each of his parents to supply his emotional needs.

8. On an interim basis, the benefits of a particular arrangement are the subject of limited evidence.  There is significant evidence as to what has gone on between the parties over their history, but limited evidence as to the effects on the child of any particular regime.  The best evidence that is before me at present is that of Ms D, the family therapist.  Ms D noted that when the child has spent time with his father he has been initially resistant to spending that time.  He has expressed on each occasion that he thinks that the time is not suitable and that he does not wish to spend time with his father. 

9. However, by the same token, each time that he has spent with his father has resulted in him engaging with his father, hugging his father, having conversations with him, playing with him, smiling with him, joking with him and discussing his side of the family.  In terms of negatives that the child has expressed as perceived by Ms D, one of the negatives is that he has expressed that the current practical arrangements are “boring”.  That is, seeing his father at I Contact Centre is boring.  His mother has communicated concern, I think through Ms D, that the child has expressed that he is a nine-year-old but he is played with as though he is a five-year-old, which may in part be a product of the particular practical arrangements that are in place.

10. This identifies that the current practical arrangements are subject to some limitations that do not help the child.  Ms D assesses that the developmental risk for the child is eventually that he will not go and spend time with his father if he is not encouraged to do so.  That is, there is a risk to his relationship with his father, and that poses a developmental risk.  This in part comes from the lack of discussion of the father in the mother’s household, that there is no engagement about the subject of the father in the mother’s household.  Ms D considers that that communicates to the child that the father is not part of the family.  Of course, he is not a part of the mother’s family any longer but is a part of the child’s family; and that if the child is to in any way choose his father or express a desire to be with his father, or to communicate about his father, that immediately marks him out as being different to the other members of his family. 

11. In assessing the time that the father has spent with the child, Ms D noted that the father did not respond to the child in any negative manner despite the negative comments that the child made.  She expressed that the child appeared comfortable with his father, there was no sign of anxiety or mistrust or the like.  And she particular noted that the father did not engage with negativity that was expressed by the child.

12. That indicates that he has some good capacity to deal with difficulties that might arise if he does spend time with the child.  On the question as to whether or not the child was ready to spend full days with the father, Ms D said that he was.  She noted that he is now nine years old, that he is comfortable with his father, and although the contact that he has had with the father’s wife is limited, that that seemed to be an enjoyable contact insofar as it had occurred.  She thought that there would be benefit for the child in having contact with the father’s family rather than at a park in Sydney, and given the child’s comments about I Contact Centre being boring and the limitations in the time that he has spent with his father, this seems to be correct.

13. Ms D was asked about consecutive day visits.  She noted that they were ultimately in his interests, that he would benefit from two days, and that he has some sense already of the father’s family being part of his family.  However, she thought that it would be better if the child stayed overnight.  The reason for this is it would otherwise be disruptive, and that if it was not overnight then the child would be returning to a household where not everybody was in agreement with the notion that it is a good idea for the child to spend time with his father, and that unfortunately means that the child has to juggle that particular problem for himself.

14. Overnight from Saturday to Sunday was perceived to make sense to Ms D.  Counsel for the mother asked Ms D whether or not there were negatives if the arrangement did not progress immediately to overnight, and Ms D indicated that there were not immediate negatives if it did not progress in that manner.  However, the qualifications in this is that she noted that it was problematic for the child to have his voice heard if what he wanted was to spend time with his father, because at present the arrangements do not permit to express that he wants to be there. 

15. These particular circumstances, combined with the description that has been given by Ms D of the nature of the relationship between the child and his father, are relevant in determining what is in the child’s best interests. Of particular significance is that, despite the fact that the child has initially expressed reluctance, but then warmed to his father; that his father has been able to deal with that particular difficulty; that there are benefits in there being a more natural form of time of the father spending with the child, and the preference expressed by Ms D for such time to be overnight rather than on consecutive days.  I consider that under these circumstances it is in the child’s best interests that orders be made largely in accordance with the terms proposed by the Independent Children's Lawyer at order 1. 

16. I accept what has been said both by Mr Yike and by counsel for the mother that there is a high degree of specificity required for the orders and that the orders as expressed in paragraph 1 will need more detail put into them to ensure that there can be no confusion about what is required in respect of compliance.  I will return to that detail later.  There was no resistance to order 2 as proposed by the Independent Children's Lawyer, that is, a liberty to relist at short notice, and I propose to make that order.  If there is an issue with non-compliance with these orders, it is my expectation that I will be able to deal with that issue of non-compliance, if there is available judicial time, almost immediately.

17. Orders 3 and 4 proposed by the Independent Children's Lawyer seek a continuation of the role of Ms D as the family therapist.  As was pointed out by counsel for the mother, family therapy has not yet occurred in accordance with the orders made by Carew J.  It was asserted for the mother that it was appropriate to continue the appointment of Ms D as a family therapist if the current orders continued.  But it was asserted that it was inappropriate if there was a change in the orders to those as posed by the Independent Children's Lawyer. 

18. I have not been able to identify how the continuing role of Ms D becomes inappropriate with the amendment to the time that the child is to spend with his father.  The counsel for the mother carefully cross-examined Ms D as to the benefits that might flow from family therapy.  And it seems from the nature of that cross-examination that it is likely that those benefits will continue to accrue even if orders are made in accordance with order 1 of the Independent Children's Lawyer.  This is a highly conflicted family.  It has been put that there are benefits to the family in engaging with family therapy, and it appears to me that those benefits continue to accrue even if orders are made in accordance with order 1, and I propose to make orders in compliance with orders 3 and 4 as proposed by the Independent Children's Lawyer.

19. Orders 5, 6 and 7 as proposed by the Independent Children's Lawyer do not meet any opposition and I propose to make orders in those terms.  Accordingly, that will involve the discharge of a number of the orders that were made by Carew J.  Before I do that, I will hear the parties as to the detail in respect of order 1. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 September 2016.

Associate: 

Date:  23 December 2016