Kinsealy and Arthur (No. 2)

[2009] FamCA 216

FAMILY COURT OF AUSTRALIA

KINSEALY & ARTHUR (NO. 2) [2009] FamCA 216

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Kinsealy

RESPONDENT: Ms Arthur

INDEPENDENT CHILDREN’S LAWYER: Ms Koeman

FILE NUMBER: SYF 2330 of 2005

DATE DELIVERED: 17 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 17 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Levy

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr B. Levet

SOLICITOR THE INDEPENDENT CHILDREN’S LAWYER: CBD Legal, Sydney

Orders

1. The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 28 April 2009.

2. That until further order unless the parties and the Independent Children's Lawyer agree to the contrary in writing the Orders made by this Court on 14 February 2008, suspended by this Court on 4 February 2009, continue to be suspended on condition that:

   a.the child spend time with the father each weekend during school term from the conclusion of school on Friday until the commencement of school the following Monday; and

   b.from 10:00 am on Friday, 17 April 2009 until the commencement of school on 27 April 2009 or, in the event that is a pupil free day, to the commencement of school on 28 April 2009.

3. That at all other times the child live with the mother.

4. Each of the parties by consent is restrained from causing the child to attend upon a medical practitioner, social worker, psychologist, therapist or counsellor for any purpose other than a medical emergency except in the case of a qualified medical practitioner at the specific request of that practitioner.

5. That parties, each of them, comply with the letter of directions from time to time of Dr M in relation to the management of the child’s asthma and ensure that current directions are communicated to the responsible authority at the child’s school.

6. That the costs of the father of and incidental to the proceedings today be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2330 of 2005

MR KINSEALY

Applicant

And

MS ARTHUR

Respondent

REASONS FOR JUDGMENT

1. I am not going to give extensive reasons in the matter.  I gave reasons on 4 February 2009 for orders made on that date.

2. This is a very worrying matter involving a young child, who was born in April 2004. 

3. At the end of 2008 the parties were at the point of a regime change under orders they asked to be put in place in early 2008. The child was to go from spending some weekend time with the father to week about between the parents. Leading up to that time the parties had discussions about block periods.  The discussions broke down.  Matters escalated, the mother retained the child and so the child was not spending any time with the father.

4. The father brought the matter back to Court and directions were made to give the mother an opportunity to file some documents.  Some documents were filed but it was clear that the mother had more material she wanted to put before the Court.  She was looking for legal representation. Over the strong objections of the father I delayed the regime increase that the parties asked the Court to put in place and imposed a level of supervision. I should say that the orders of early 2008 were in accordance with or at least, not inconsistent with, recommendations made by the single expert, Dr Q.

5. On 4 February 2009 I put in place a regime whereby the father would spend time with the child every weekend provided the overnight time was spent at his parents' premises, and I ordered a representative be appointed for the child.

6. The arrangement I put in place has broken down. The father's parents went overseas for much of March. The mother has again not provided the child.  There has been a request on behalf of the father for some accommodation in relation to the location of overnight time.  No agreement has been reached. The mother has not had adequate legal representation yet.  She has had the assistance of Mr Levitt of counsel, who is providing pro bono assistance today but outside the scope of the pro bono scheme of the New South Wales Bar. The wife has not yet been able to finalise her documents, although I understand some documents are underway.

7. The independent child lawyer is on board. She has not spoken to the child but has decided on reflection that that would not be a good idea. She has spoken to the Family Consultant. The Family Consultant has provided an assessment.  There are some concerns about the assessment. It may be just because of the protocols that apply to the child responsive model, but the consultant did not read any documents beyond the father's application so did not have the benefit of Dr Q’s report or of the history including the orders the parties asked to be put in place in early 2008. The consultant has prepared a report as if it is the father who wants to change an existing arrangement to week about out of the blue. The consultant has provided some advice about the circumstances where week about arrangements, work well. That advice is very different to the advice of Dr Q who noted there was a level of conflict between the parties. To be fair, Dr Q recommended that each of the parties take some steps to address matters of concern. I understand that the parties may not have taken those steps.

8. We come to today.  The independent child's lawyer is not quite ready.  The mother has not taken all the steps she should have taken.  In the meantime there are related AVO proceedings at a Local Court, those proceedings have been adjourned to a date in May and there is no interim order in place.

9. We are dealing with competing risks. The mother has raised some matters and as I recorded in my reasons of 4 February 2009, there were objective concerns in relation to the parties' behaviour.  The father had conceded for example that the child was upset on an occasion where conflict arose during a handover at a police station. I considered that the bare recitation of facts by him suggested that he could have done more to avoid the child being exposed to what appeared to be a high level of conflict over a trivial interplay between himself and the mother's new partner.  The parties clearly do not enjoy a good relationship.

10. On 4 February 2009 I referred to the interruption of the existing orders as quite unfair to the father and potentially quite unfair to the child. That was on the basis of the coincidence of these problems arising at the very point of the regime the parties put in place, changing to a week about arrangement.

11. There is an inference to be drawn I think from the fact that there is no interim AVO in place.  The mother's case all rests on controlling, manipulative, threatening behaviour by the father – including a practice whereby he draws his finger across his throat. The mother gives evidence that on at least once occasion, the child copied that gesture. The mother wants the opportunity to give evidence about the child echoing words that the father has used, threatening her and her partner. The background facts all suggest that no interruption should be made to the regime the parties asked the Court to put in place, after having Dr Q’s advice. That includes the fact that no interim AVO is in place.

12. Having said that, as I said on the last occasion, there was a pattern in place during 2008. There is no independent evidence to suggest that that pattern has endangered the child. That is not to say that changing to something else, like week about time, will be good. Having heard the parties’ counsel and the independent child lawyer, I will leave in place the arrangement of 4 February 2009 but without the requirement for time to be spent at the father’s parents’ residence.

13. I was rather concerned when Mr Levitt on instructions expressed the mother’s equivocal attitude to the concept of complying with future orders. He now has instructions from the mother in relation to an undertaking about not having the child examined for any non necessary purpose. She has now indicated through him that she will comply with Court orders.  She has to do that, otherwise we will have to take other steps.

14. The mother’s obligations include causing the child to be at school on a handover day.  If the child is not at school on a day when the father’s time starts from the conclusion of school, it falls to her to cause the child to get to the father some other way.  Parenting orders impose a positive obligation on her to cause the child to spend time with the father.  So it is not a case of her inviting the child to go, not a case of her putting the child in a position to go.  It is a case of her doing everything within her power to cause the child to go.  I do not want to have this case back on a contravention application in two weeks time over a misunderstanding about that.  The requirements imposed by Court orders are set out in an attachment to the orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  27 March 2009