LINDRUM & REILLY

[2017] FamCA 426

FAMILY COURT OF AUSTRALIA

LINDRUM & REILLY [2017] FamCA 426

FAMILY LAW – CHILDREN – Parenting orders – long history of litigation – difficult relationship between mother and nine year old child – parties reach agreement in principle but orders are vague and difficult to enforce – court imposed orders subject to the parties having leave to apply to set aside on the basis of the advice of the therapeutic counsellor – reasons for concern of the court notwithstanding consent orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Lindrum

RESPONDENT: Ms Reilly

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4872 of 2010

DATE DELIVERED: 19 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 June 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Meehan

SOLICITOR FOR THE RESPONDENT: Susan Snyder

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dosnjh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

Orders

BY CONSENT

1. All extant parenting orders in relation to the child B born … 2008 are discharged.

2. The father has sole parental responsibility for the child relating to major long term decisions concerning her.

3. That the father keep the mother informed of:

   (a)      any school the child may attend;

   (b)      any medical emergency with respect to the child;

   (c)      any major medical/dental issues with respect to the child; and

   (d)      any other major decision with respect to the child.

4. That the child spend time with her mother as follows (with the handovers between the parents occurring at the C Contact Centre unless otherwise specified):

   (a)in Term 1 of each school year, on the Labour Day weekend from 6.00pm on the Friday (or such other time as the contact centre can arrange) until 6.00pm on the following Monday;

   (b)in the second term of the school year, on the Queen’s Birthday weekend from 6.00pm on the Friday (or such time as can be arranged by the contact centre) until 6.00pm on the following Monday;

   (c)in the third term of school, on the fifth weekend from 6.00pm (or as the contact centre can arrange) until no later than 6.00pm on the following Monday; and

   (d)in the fourth term of the school year, on the second weekend in November from 6.00pm (or such other time as the contact centre can arrange) until 6.00pm on the following Sunday.

BY THE COURT:

1. That the child spend time with the mother on the Mother’s Day weekend in each year from 6.00pm on the Friday of the Mother’s Day (or such other time as the contact centre can earlier arrange) until 6.00pm on the Sunday of Mother’s Day.

2. For the purposes of the exchange between the parents, the child shall be delivered to the C Contact centre and to give effect to that order, each party do whatever is necessary to register there and make the arrangements needed to give effect to these orders but if the contact centre cannot facilitate the exchange at the conclusion of the period, it be as agreed between the parties and failing agreement, at the McDonalds store in D Street, Geelong.

3. That forthwith, each of the mother and the father contact Ms E, and make an appointment to see her and provide a copy of this order and the reasons for judgment arising from them, requesting that she provide written advice to each (subject to the order hereafter) as to whether the orders in the foregoing paragraphs as to time are workable and in the best interests of the child.

4. Should Ms E consider herself compromised by her past therapeutic role with the child and be unable to give such advice, she  nominate another expert to advise the parties on the same issues which advice shall then be reportable to the court.

5. Both Ms E and any person to whom she otherwise refers the parties shall be given a copy of all family reports prepared by Mr F and Dr G together with a copy of these orders and the reasons this day.

6. Subsequent to receiving the advice of Ms E as to the appropriateness of the orders above, each party has liberty to apply on short notice with respect to a variation of these contact orders if that party considers the advice of the relevant expert is such that the orders are not in the best interests of the child.

7. That to the extent possible, such urgent application shall be listed before the Honourable Justice Cronin.

8. Regardless of the foregoing orders, the father is directed to continue to follow the directions of Ms E relating to the necessary therapy for the child as advised by Ms E.

9. That the mother spend time with the child:

   (a)in odd numbered years, from 10.00am on Christmas Day until 10.00am on 30 December; and

   (b)in even numbered years, from 6.00pm on the last day of school until 10.00am on Christmas Day.

10. For the purposes of the Christmas period above, the parties make arrangements for delivery and return of the child through the C Contact Centre unless they otherwise agree in writing to the contrary.

11. That in relation to school term holidays, the child spend time with her mother for a period of five nights commencing at 6.00pm (or such other time as the contact centre can arrange) on the last day of school term in all odd numbered years and the child be returned to the contact centre exactly five days later and in even numbered years for a period of five nights to commence from 10.00am (or such other time as the contact centre can arrange) on the second Sunday of the holidays and be returned five days later. If the contact centre is not available, then the parties use the McDonald’s Restaurant at D Street, Geelong for any such handovers .

12. During all periods of time that the child spends with her mother described in paragraphs (4), (5), (13) and (15) and as a condition of that time occurring, , the mother is to have a qualified carer or adult member of her family in attendance for the whole of the period but the following persons are excluded (by agreement):

    (a)      Ms H; and

    (b)      Ms I Reilly.

13. To the extent that Ms E so requires, or her nominee as may fall into paragraph (8), the father provide the child so that therapy can take place involving the mother at that expert’s request.

14. Pursuant to s 65Y of the Family Law Act 1975 (Cth), should the father wish to take the child overseas, providing he gives 28 days written notice including the full itinerary of his travel and the relevant address and contact telephone number where the child will be staying, the father has permission to take her overseas.

BY CONSENT

1. The mother and the father keep the other informed of any medical emergency in relation to the child.

2. The father authorise the child’s treating general practitioner or any other health professional (keeping the mother informed of the identity of such professionals) to discuss matters relating to the child’s health with the mother.

3. The father keep the mother informed of any school at which the child attends and authorise the school to provide to the mother at her expense and request, copies of school reports, photographs, newsletters and any other material to which a parent would otherwise be entitled.

4. The mother is permitted to attend school events, functions, parent/teacher night and any other things that a parent would normally attend.

5. The mother and the father keep the other informed of their current address and telephone number (including mobile numbers) and inform the other parent of any change within 24 hours thereafter.

6. The father give the mother 60 days written notice of any intention to relocate from the Geelong area.

7. The father be at liberty to provide copies of family reports to the child’s school and any health professional treating the child.

8. Each party be, and is hereby, restrained from denigrating the other to or in the presence of the child.

9. Within 14 days of any request by the father, the mother, provide her consent to obtaining a passport for the child.

10. The father retain the child’s passport.

11. That during any overseas travel by the child, the father ensure the mother is able to contact her by Skype (or telephone if Skype is not available) on a weekly basis.

12. Each party give to the other seven days written notice of any intended interstate travel for the child and provide proposed addresses.

13. The mother undertake a post-separation parenting course as soon as practicable and provide a certificate of its completion to the father.

14. That subject to providing such assistance as Ms E and any other health professional requires, and subject to neither  party applying pursuant to paragraphs (10) and (11), the order appointing the Independent Children’s Lawyer is discharged.

BY THE COURT

1. On the mother’s weekends, and facilitated by the father, the child have telephone or Skype time with her father at 10.00am on the Sunday and during all school holiday periods, the parent who does not have care of the child have Skype or telephone time on each Tuesday or Thursday at 10.00am facilitated by the carer of the child at the relevant time.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. Subject to paragraphs (10) and (11), all extant applications are otherwise dismissed.

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 Lindrum & Reilly 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 MELBOURNE

FILE NUMBER: MLC 4872  of 2010

Mr Lindrum

Applicant

And

Ms Reilly

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. As can be seen from the court file number and the orders contained at the commencement of these reasons, the parenting dispute over the child who is now 9½ years of age has not only been long standing but extremely difficult for everyone.  Her parents, Mr Lindrum (“the father”) and Ms Reilly (“the mother”) have been involved in litigation since the child was two years of age.  The court file is extensive and various parenting arrangements in the form of orders have been tried.  It would seem common ground that those orders have been unsuccessful. 

2. The orders that commence these reasons have, in part, been reached by agreement between the parties but others have been imposed by the court (directly and indirectly). The latter arose after discussions with the parties for the purposes of endeavouring to find a compromised situation designed to protect the child as well as end all litigation.

3. Section 65D of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings for a parenting order, the court may make such parenting order as it thinks proper subject to some statutory considerations that are not relevant here.  The emphasis at law is on the word “proper” and is the focus of these reasons.

4. If the court decides to make a parenting order defined in s 64B(1) as an order dealing with one of the following matters (which are set out in s 64B(2)):

   (a)      the person or persons with whom a child is to live;

   (b)the time a child is to spend with another person or other persons;

   (c)      the allocation of parental responsibility for a child;

   (d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   (e)the communication a child is to have with another person or other persons;

   (f)       maintenance of a child;

   (g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

   (i)       a child to whom the order relates; or

   (ii)the parties to the proceedings in which the order is made;

   (h)the process to be used for resolving disputes about the terms or operation of the order;

   (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

5. The power to make any sort of parenting order therefore lies in s 65D but s 64B provides the sorts of things that such an order with which it may deal. Section 60CA is equally important. It provides that in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration. To determine those best interests, the court is directed by the Act to consider those matters set out in s 60CC.

6. The overarching principle is that when contemplating parenting matters, the court is obliged wherever possible to ensure that the best interests of a child are met by consideration of the matters in s 60B of the Act which provides:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

7. The principles underlying the objects just mentioned are (s 60B(2)):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

8. In circumstances where there has now been seven years of litigation (on and off) in relation to the child who is aged nine years, the Court must consider whether it is proper to make the orders that the parties seek as a compromise position between themselves again. The focus of these orders is not just about best interest principles but (as a part of that) enabling the cessation of litigation. The Court must also consider the enforceability of its orders, that is, the language might be that of the parties and various social scientists but it must also be the language of the law. Section 60CC(5) provides that if the court is considering making an order to which all parties consent, it may, but is not required to, have regard to all of the considerations set out in s 60CC. The requirement of the court in respect of a consent order is to give consideration as to whether or not it is proper to make the order. In circumstances where there is a long and litigious history, the focus should be on whether or not the orders which are said to be in the best interests of a child will indeed have the posited outcome.

9. This case creates a dilemma because each party proposes a basic child and mother contact structure after previous orders are acknowledged (at least by the father) to have been unsuccessful. The question was raised by the Court about why these orders would succeed where others (as can be seen from the expert evidence below) have failed. Thus, the critical question is why these promote the best interests of the child and will a reduction of her time work in circumstances where she is violently resistant. As can be seen from the agreed proposals, the philosophical concept is to reduce the number of visits and increase the gaps between them. The question is then asked why that concept will enable any of the matters described in s 60B and s 60CC to be positive for the child. The exploration of that issue follows.

10. Notwithstanding the matter was set down for trial some months ago, the respondent mother with whom the child does not live, filed no material.  The absence of material made the relatively small number of disputed issues, difficult.  The father represented himself but his material was prepared with the assistance of a solicitor who did not act for him much beyond the filing date.  He is an intelligent professionally qualified person who gave every appearance of understanding the dilemma. 

11. I have little doubt that both parents are extremely tired of the litigation and want it to end but experience tells that compromise in those circumstances is not a sensible solution.  The problem is that the child has a particular view about her mother and because of that, the Court raised the sense in the parties’ agreement which they sought to be enshrined in orders. It seems clear that without orders, the child will have no relationship with her mother.

12. The court appointed expert in the proceeding was psychologist Mr F.  His expertise was not challenged.  Although there were some questions that he may have been able to answer but he was overseas and unavailable, no one challenged his expertise. Indeed, each relied upon the evidence set out in his affidavit as filed by the Independent Children’s Lawyer.  One might fairly conclude from reading his fourth report that it contained an air of resignation.  To give some colour to the dilemma for the Court, I shall return to Mr F’s evidence in a moment. 

13. After negotiating all day, the parties tendered a minute of their agreement highlighting those matters about which there was still a dispute. Sadly, and because of the matters to which I have earlier referred, with particular emphasis on s 65D of the Act, the main concern I expressed related to three issues:

    (a)      the duration of holiday time (and Mother’s Day weekend);

    (b)how the handover of the child was to occur and who should be present not just at the handover but throughout the time that the child spent with her mother; and

    (c)whether orders could be made without some very clear evidence that the court could predict their success.

14. The first dilemma arose in respect of the handover of the child.  The original draft proposed that the mother would have an “agent” collect the child from school and whilst innocuous enough, a further order was added that read:

    Without admissions, no force shall be used at changeover.

15. When one contemplates that statement, it meant that the child could potentially face the prospect of having a stranger collect her from school but the person so appointed by the mother was somehow ordered by the court not to engage in forceful contact with the child to make the handover occur.

16. Everyone agreed that there was an inherent difficulty with the very concept because it could be traumatic for the child.  The uncontested evidence is that the child is not just resistant to her mother but violently so. How different would it therefore be to have a complete stranger, unknown to the father by any arrangement? The solution I offered was for the security of a contact centre and the parties agreed. Whilst there may still be resistance from the child, at least there will be professional standards and witnesses who understand the problem.

1. It was also of little comfort to the court that the mother agreed to an order that throughout the entire period of time she had with the child, she would have some adult member of her family (other than any person specifically named in the orders) present.  But on the basis that the time with the child was over a number of days, and with considerable driving involved, the particular person to be present (potentially vaguely known to the child and not necessarily known to the father) was required to spend the entire time ensuring (without specific details being nominated by the court or by the order) the safety of the child. But it must mean more than that. Because of what Mr F witnessed of the interaction of the child, the person taking on the role of supporting the mother must understand that they have not just a duty of care but also reporting responsibilities to the father if the arrangements are not working in the child’s best interests.

2. In my view it is highly inappropriate for courts to simply rubber stamp orders giving the imprimatur of the court that the orders were in the best interests of a child if the court could not be confident that they would be successful let alone exactly who was going to be involved.  The potential for a child to be inappropriately handled speaks for itself but here, the parties had not been able to come to any clear rationale as to what was to happen if “no supervisor” was available.  The uncertainty of the orders was troubling because of the history where orders have been tried and failed. 

3. Notwithstanding the child is only nine years of age, the question arose as to whether she would participate successfully in such an arrangement. As can be seen from what I have set out above, the objects and principles of Part VII of the Act are designed for the experience between parent and child to be a positive one from which the child benefits. The evidence in this case is alarmingly negative. Judges are commonly called upon to predict the outcome for the future but here, I have no sense as to what will occur because of the evidence from psychologist Mr F. However, his evidence is unusual because he says that it is important for the parents not to give up in endeavouring to create a relationship between the mother and the child. The question for the Court is in predicting whether any such continued efforts are in the best interests of the child and that gives rise to the question of whether it is proper to make orders.

4. I suggested to the parties that as the child had recently developed a relationship with psychologist Ms E, common sense dictated that they should approach Ms E first to decide amongst themselves whether what they were proposing would be successful. To avoid further costs and the constant stress of litigation, what they could do was make an urgent application on short notice back to the court to discharge these agreed orders (and those imposed by the Court) if it was obvious that Ms E (or some other person suggested by her) indicated that the orders were just unworkable.

5. To ensure that the arrangement was transparent, I insisted that the parties immediately contact Ms E to make an appointment to discuss the issues with her but that I wanted her to not only have access to the reports of Mr F and another report by Dr G but also these reasons.

6. To the extent that it is clear to any such expert that the orders upon which the parties are embarking in relation to the child are concerning, the court will immediately assist by providing time for the matter to be reconsidered if that is necessary.  For the avoidance of doubt, in case it is thought that such a statement relates only to a reduction in time, it may very well be that Ms E or some other expert considers that there should be further time than that which is encompassed by the proposed orders. 

7. In respect of the contact centre for handovers, and to avoid the stranger element, I pointed out that the parties have to fit around the times available offered by the contact centre.  Thus, I have made clear that to the extent that the contact centre cannot fit within the timeframes of the orders, it will determine the relevant timing and parties will have to fit into those arrangements.  To the extent that that is not practicable, for whatever reason, the parties have agreed that they will use the McDonald’s store nominated in the orders. 

8. A second issue of contention and about which the parties did not reach agreement related to school summer holiday periods.  Both parties maintained that their proposal would work because they had considered the length of time that the child could maintain a relationship with her mother.  In my view, the mother’s position was simply guessing.  Whilst the father asserted that things had not been successful in the past and the mother disagreed with that, I find there is no evidence from either party that gave me any assistance.  The only evidence that is reliable and objective is that of Mr F to whom I shall return in a moment. 

9. The father proposed that the time period for holidays should be five days and whilst over the summer period that might create a situation where there are multiple handovers, that is preferable to one in which there is a long duration in which the child is distressed and/or shuts down.  In my view, on the basis of the father’s statement that he considers the child can manage the time, I have determined that his proposal is in her best interests. I so find because he knows the child better than does the mother and he has had to deal with the aftermath of the problems whereas I infer that the mother is more inclined to suffer the indignities of the child’s behaviour.

10. The third issue related to how the periodic time between mother and child should be structured.  The parties have agreed to one weekend per term.  One of the disputed issues related to the Mother’s Day weekend.  From her point of view, the mother said that Mother’s Day was a very special occasion but from the father’s point of view, he felt that it was simply an imposition. His position was that as there was general consensus that the child should only spend one weekend per term with her mother, the Mother’s Day weekend should be that particular weekend. 

11. In my view, term 2 is a long period of time and from the resumption of school until the Queen’s Birthday weekend, the time is considerable.  The gap between the resumption of school at or around the end of April for a couple of weeks until the Mother’s Day weekend ought not be serious imposition upon the child if it is agreed that longer gaps would be attractive to the child. But, I also observe that this is an issue that I think should be given consideration by Ms E because the philosophy behind the father’s position and that of the Independent Children’s Lawyer, is that the success of any relationship between the mother and the child is more likely if the number of occasions each year is reduced from alternate weekends.  I can only predict that the success of these periods is entirely dependent upon the child being content to undertake them and therein lies the role for Ms E. 

12. All of that leads me to the evidence of Mr F.  He indicated a sense of resignation about the whole matter.  He wrote on 27 April 2017:

    [7]The reality of the family’s situation now is that it has deteriorated to a point that is likely irreparable.

13. Regardless of why that has occurred, it is the reality.  On a positive note, the child has apparently developed a relationship with Ms E such that there is a prospect that with a reduction in the number of visits, things may more likely succeed.

14. Mr F traversed all of the views about the parents and again, they are not particularly helpful in this determination.  That arises from some comments that Mr F made and in particular, the following:

    [13]By far the most concerning aspect of the child’s behaviour is her disturbance at the level of Object Relations put simply, she vigorously and violently attacks the part of herself that is her mother, splitting off and rejecting her mother, and justifying this attack by vilifying and demonising her mother.  It is true, that this pathological dynamic is what occurs at the severe end of alienation, where the child is unable to integrate the two halves or parts of who they are, splits off and rejects one parent because of their understanding that to not do so will at some level invite the rejection of them by the other parent.

15. Mr F referred to the child conveying a sense of revulsion about her mother including her mother’s physical appearance and disability and that she could not acknowledge a single positive thing about her.

16. The mother told Mr F that the child was aggressive and hostile “virtually all the time” and that she was confronted with the “painful and unwavering reality that she cannot look after the child”. 

17. The balance of the report is distressing reading but in the end, notwithstanding the child’s defiance and opposition, Mr F, who witnessed the “wild and uncontained rage”, said that it was imperative that the child still had a relationship with her mother and “that she be required to see her mother, notwithstanding her resistance”. 

18. In what I consider a quite unusual statement, Mr F said:

    [31]I would implore that there be ongoing psychological support around the child’s relationship with her mother, at least for a two-year period and preferably with [Ms E].   

19. Mr F had spoken to Ms E and he thought there was some prospect of success in her counselling plans.

20. The court is left with a situation where the parties are emotionally exhausted and doggedly plodding on towards the child’s adulthood in circumstances where neither has confidence that what they are proposing will work.  In my view it is absolutely critical that Ms E indicate to the parents whether these arrangements are well-founded or fraught with difficulty.  Much of that seems to depend upon whether a prospect of success lies in greater gaps between visits or whether there should be some moratorium so that the child can mature and find some other way of developing a relationship with her mother. 

21. The examples given by Mr F about the nature of the mother and child relationship are quite alarming but it is interesting that he said that everyone should persist in the face of child defiance.  I feel that as the parties want the situation to continue rather than abandon it, a final attempt has to be made but it cannot be made in the shadow of the law.  It has to be with the expert advice of the social scientist. 

22. I began these reasons by reference to s 65D. With some hesitation, I consider that the orders set out at the start of these reasons are proper because when the parties have indicated they are prepared to try again with the assistance of Ms E, the best interests of the child are met by the nature of those orders. On that basis, the orders are proper. But there must also be an opportunity for review without the Sword of Damocles of further litigation hanging over the parties’ heads. The parties must listen to the experts about whether or not they are doing further damage to their child who is yet to turn 10 years of age.

23. In my view there is little point in contemplating seriatim all of the matters in

    
    

    s 60CC of the Act because they would simply result in findings which would be negative. In my view, none of those considerations in s 60CC assists in the determination of this matter and as such, I rely very heavily on the fact that the parties think that if they continue to make an effort, with the assistance of the professionals to whom I have referred, these orders may ultimately be in the child’s best interests.

24. It goes without saying that issues of s 65DAA and s 61DA does not have to be considered here as the parties have reached agreement about those parental responsibility issues.

25. It is with all of those reservations, I have made the orders at the start of these reasons.

I certify that the preceding Forty One (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 June 2017.

Associate: 

Date:  19 June 2017