King and King

[2010] FamCA 190

FAMILY COURT OF AUSTRALIA

KING & KING [2010] FamCA 190

FAMILY LAW – CHILDREN – Interim – Whether child to spend time with father

Family Law Act 1975 (Cth)

APPLICANT: Ms King

RESPONDENT: Mr King

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7073 of 2008

DATE DELIVERED: 4 MARCH 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 4 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BENJAMIN

SOLICITOR FOR THE APPLICANT: BERRY FAMILY LAW

COUNSEL FOR THE RESPONDENT: MR DAVIS

SOLICITOR FOR THE RESPONDENT: MARIA BARBAYANNIS & CO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR MEEHAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LAMPE FAMILY LAWYERS

Orders

1. That all outstanding applications be adjourned for final hearing before me as the third case (as at this time) in the list of defended matters for the period of four days commencing on 22 June 2010 at 10.00am as a three day matter.

2. That the matter be listed for mention before me by telephone at 9.00am on 31 May 2010 with the practitioners providing my Associate by 4.00pm on the last business day prior to 31 May 2010 with the telephone number on which they can be contacted for the hearing.

3. That paragraphs 3 and 4 of the orders made on 7 December 2009 are discharged.

4. That by 4 pm on 7 May 2010 the applicant wife file the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day.

5. That by 4 pm on 7 May 2010 the applicant file a document setting out with precision what orders are being sought.

6. That by 4 pm on 21 May 2010 the respondent husband file:

   (a)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

   (b)a financial statement that complies with chapter 13 of the Family Law Rules.

7. That by 4 pm on 21 May 2010 the respondent file a document setting out with precision what orders are being sought.

8. That by 4 pm on 28 May 2010 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

9. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial as well as to seek the issue of subpoenae.

10. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

    (b)refer the case to the trial judge for directions as to its future management; or

    (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

    (d)return the case to the Registrar’s docket on a date to be fixed for further management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

11. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 21 June 2010 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a bullet-point summary of argument in relation to the issues in dispute.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

IT IS NOTED that publication of this judgment under the pseudonym King & King is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7073  of 2008

MS KING

Applicant

And

MR KING

Respondent

REASONS FOR JUDGMENT

1. On 4 March 2010, I made orders for the parenting dispute between the husband and the wife to proceed to a final hearing.

2. Despite the husband’s application that I should make an order for 7 year old N to spend time with his father at a contact centre, I refused.  These are my reasons.

3. I have previously set out the background of the proceedings between the parties.  There are both parenting and financial disputes unresolved.  The parties have been to court a number of times.

4. On 7 December 2009 at a hearing at which all parties appeared before me represented by counsel, I made the following orders:

   1.That for the purposes of any final hearing of proceedings between the parties, the parenting issues be separated from the financial issues.

   2.That all outstanding parenting applications be listed for the first day of a less adversarial trial at 10.00am on 4 March 2010 before me.

   3.That each party sign all necessary documents and do all things required to enable [Y] Contact Service to supervise the time between the husband and the child [N] born 13 August 2002.

   4.That the periods of time for the purposes of paragraph 3 to be spent between the husband and the said child be as may be determined according to the availability of the supervisors at [Y Contact Service] to supervise the time between the child and the husband but that such contact not commence before 4 March 2010.

   5.That for the purposes of the first day of a less adversarial trial referred to, family consultant Mr [K]:

   (a)      interview the husband;

   (b)unless otherwise impracticable, attend the first day of the less adversarial trial for the purposes of giving evidence as to his observations and his advice as to whether there should now be some face to face time between the husband and the child;

   (c)read the affidavit of Dr [E] filed by the husband on 28 July 2009, the report of [Mr B] (being Annexure K to the affidavit of the husband filed 11 November 2009) and the reasons for judgment this day;

   (d)paragraphs 96-100 of the affidavit of the husband filed 11 November 2009.

5. In December 2009, N had not seen his father for a year. 

6. In my reasons for making the orders, I said the following:

   29.As I indicated to the parties, whilst the door may very well still be ajar, I would want to know from an expert such as Mr [K] whether contact even in a supervised and secure environment might be traumatic for a child who has indicated resistance to having time with his father.  I take into account the fact that the interview with the Independent Children’s Lawyer was apparently in the presence of 16 year old [D].  The extent of any influence is not known.

7. Mr K is a family consultant.  In response to the order, he attended and gave evidence.  Because of time restrictions, Mr K had not had the ability to prepare a report in writing.  Whilst that may have disadvantaged the husband, the husband was ably represented by his counsel Mr Davis who strongly argued his cause. 

8. All parties cross-examined Mr K.

9. Mr K said that he interviewed the husband at the end of February.  He found him a lot quieter and settled in respect of his attitude as distinct from what had been evident in January 2009.  The husband had undertaken an anger management course, been examined by psychiatrist Dr E and had attended psychologist Mr B.  In essence however, Mr K said that the husband’s views and thoughts globally had not altered.  His focus until redirected was in relation to the unresolved property issues.  Mr K had great difficulty in getting the husband to focus on his children. 

10. Significantly, the husband told Mr K that he would endeavour to mend his relationship with his older children when the case was finished by apologising.

11. In January 2009, Mr K interviewed the parties and the children.  In respect of N who was then aged 5 years, Mr K found him visibly nervous and a child who would not easily separate from his mother and older sister.  N apprehensively told Mr K that he did not want to meet with his father and Mr K made a professional judgment call that that should not happen.

12. Mr K was cross-examined by Mr Davis about the benefit and the prejudice to N in attempting a contact session with his father prior to the final hearing concluding.  The court would have information but also in a very controlled environment, the child would be physically safe and if he was traumatised, the contact could be stopped and the information would thereafter be clearly available for the Court.  That was the submission of the husband’s counsel.

13. Mr K said the issue was difficult and he was reluctant to say one way or the other whether the attempt should be made.

14. Mr K said that endeavouring to guess at N’s reaction to such an order was speculative.

15. I asked Mr K why it was that he had chosen not to endeavour to put the husband and N together in January 2009 and yet he was uncertain about whether or not it was a good idea now.  His response was that he had not interviewed N of late and did not know of his reactions or current views.

16. Mr K reported in the 2009 report, N’s very strong view about not wishing to have any time with his father.

17. Mr Meehan as counsel for the Independent Children’s Lawyer indicated that N in the presence of his sibling, had told the Independent Children’s Lawyer only days before of his opposition to having contact with his father.

18. Section 69LA(2) of the Family Law Act 1975 (Cth) (“the Act”) requires an Independent Children’s Lawyer to form an independent view based on the evidence available as to what is in the best interests of a child and to act accordingly.

19. Section 68LA(3) requires the Independent Children’s Lawyer to suggest the adoption of a course which the Independent Children’s Lawyer considers in the best interests of a child.

20. Section 68LA(5)(b) requires an Independent Children’s Lawyer to ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the Court.

21. Albeit that there is no formal evidence of what the child said, the Act requires the submission to be put which must be based upon what views the child expressed.

22. Section 69ZR permits the Court to determine a matter arising out of the proceedings including making an order in relation to an issue arising out of those proceedings if it considers it may assist in the determination of the dispute between the parties.  I consider that making this determination may direct the parties’ minds to the problem of how the reintroduction of any relationship between N and his father can be achieved.  It is certainly not by testing the reaction of N in the way that the husband would have me do.

23. Mr K pointed to the fact that whilst N would clearly be safe at the contact centre, the emotional trauma let alone resistance to attending and participating, would seem apparent having regard to what the Independent Children’s Lawyer said and what Mr K saw in January 2009. 

24. Any decision in relation to interim arrangements between parent and child still require the Court to make an order which is in the child’s best interests.  In this case, despite all of the safeguards that may be in place, I am confident that on what I have said above, it may be damaging to N to effectively test out how he would cope.  In some cases that is an appropriate course of action.  In this case it is not because the child resides not only with his mother but with children who are significantly older than he is whose resistance to having any relationship with their father is well known.  In addition, the children have very negative views about their father which must play some significant part in forming the views of N.  There was no evidence in January 2009 that N was inquisitive about who his father was.  The reticence if not resistance in 2010 as expressed by the Independent Children’s Lawyer would suggest that the inquisitiveness is still not there. 

25. My view as just expressed is reinforced by the very fact that the husband asserts openly to the family consultant that his wife has alienated N from him.  If the husband feels that way strongly, my view about the child being put in an impossible situation with his mother and siblings being negative about the husband is almost self-evident.  If that is the case and I suspect it is, it is inappropriate to attempt something which may very well fail.

26. Balancing the considerations of having information available at trial against traumatising N leaves me with no choice but to decline the husband’s application to attempt a contact under supervised conditions at a contact centre.

27. I have given serious thought to the question raised by Mr Davis about the paucity of evidence that will be available to the Court when the trial resumes.  There are other alternatives such as that proffered by the husband himself.  He can endeavour to mend the relationship with his children despite their resistance through correspondence.  The husband told Mr K that he was a good parent but all of the evidence presented to Mr K related to material things.  The husband needs to attract his children’s attention that there is something in the relationship with their father for them other than materialism.  If that problem can be overcome, the prospect of a relationship between N and his father must have some chance. 

28. Mr K referred to the fact that a solution might be for the parties to all attend counselling and in a therapeutic sense, endeavours be made to try and fix what is currently broken.  That will be slow process no doubt made more difficult by a forthcoming final hearing in relation to parenting matters.  The parties however have had the benefit of hearing what Mr K said.  The husband has now had the opportunity to listen to experts such as Mr K, Dr E and his own psychologist Mr B.  A court can only determine the matter on the evidence presented to it.

29. This matter needs a determination for the sale of the children and accordingly, I propose to make orders which provide for evidentiary materials to be presented as soon as possible.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 March 2010