Lynch and Anor and Harper and Anor
[2009] FMCAfam 935
•11 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LYNCH & ANOR & HARPER & ANOR | [2009] FMCAfam 935 |
| FAMILY LAW – Children – interim hearing – best interests of child – death of sibling – contact with father and paternal grandparents whilst grieving – parental responsibility and sacrifice. |
| Family Law Act 1975, ss. 60CC(3)(b)-(i), 60CC(4), (4)(A), 62DA(3), 106A |
| Barak v Veitch [2008] FMCAfam 335 A. Kellehear, “Grief and loss: past, present and future,” (19 August 2002) 177 Medical Journal of Australia 176 |
| Applicants: | MS LYNCH & MR B. LYNCH |
| First Respondent: | MS HARPER |
| Second Respondent: | MR D. LYNCH |
| File Number: | CAC 1054 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 20 August 2009 |
| Date of Last Submission: | 20 August 2009 |
| Delivered at: | Canberra |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arthur |
| Solicitors for the Applicant: | Baker Dean & Nutt |
| Solicitors for the first Respondent: | Mazengarb Barralet Family Lawyers |
| Solicitors for the second Respondent: | Clark Rideaux |
ORDERS
The Mother have sole parental responsibility for the child [X] born in 2000 (“the child”).
The child live with the Mother.
Pursuant to section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed for the child.
The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the child.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
Both parents are restrained from discussing these Court proceedings with the child, or doing so in his presence and they must use their best endeavours to ensure that no other person does so either.
Both parents are restrained from denigrating or otherwise speaking ill of the other parent to the child, or doing so in his presence and they must use their best endeavours to ensure that no one else does so either.
In the event that the Second Respondent Father does not sign the relevant passport application forms within 14 days of the date of these Orders, pursuant to section 106A of the Family Law 1975, the Registrar of the Court is to execute an application in relation to the child [X] born in 2000.
Pursuant to section 11(1)(b) of the Australian Passports Act 2005 the Court Orders that the child be permitted to travel internationally and that the passport office issue a passport for the child notwithstanding that the father has not signed the application.
The Applicant Grandparents are to spend time with the child at Marymead Child and Family Centre, on dates and times to be agreed between the parties, until the end of the year. Such contact will be reviewed at the end of the year by a Court appointed Family Consultant as per Order 12 below.
The mother and father are to attend a parenting course at the earliest possible opportunity.
The mother and father are to participate in the ARCK program at Marymead Child and Family Centre. The mother and father must do all acts and things necessary to enrol in the program as soon as practicable.
The Family Consultant Ms Lang is requested to review and report on the situation between the child, his parents and the paternal Grandparents early in 2010.
The matter be adjourned for further mention in early 2010 at a date and time to be advised.
Liberty is granted to all parties (including the independent children’s lawyer) to have the matter re-listed on 21 days notice.
AND IT IS NOTED THAT:
Where contact between the child and the grandparents in accordance with Order 4 progresses satisfactorily, subject to the Report and recommendation of Ms Lang it is likely that Final Orders as sought by the Applicants will be made.
IT IS NOTED that publication of this judgment under the pseudonym Lynch & Anor & Harper & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1054 of 2008
| MS LYNCH & MR B. LYNCH |
Applicants
And
| MS HARPER |
First Respondent
| MR D. LYNCH |
Second Respondent
REASONS FOR JUDGMENT
A. Introduction
The immediate issues to resolve in this matter concern whether, and if so, what time, 9 year old [X] should spend with (a) his paternal Grandparents (who are the Applicants in these proceedings) and (b) his biological Father, Mr Lynch, who is the Second Respondent.
The resolution of these matters must be framed by and seen in the context of two particular considerations. The first is the uncontested fact that [X]’s older sister [Z] tragically died in March this year. There is no evidence or even a suggestion that [X] and [Z] did not have a close sibling relationship. Patently they did. Completely understandably, [X] is still grieving the loss of his sister.
There is abundant literature that confirms the impact of grief and the importance of therapeutic, sensitive intervention.[1] Moreover, common sense and basic understanding would suggest that the greatest delicacy is required in dealing with this young boy (and his immediate family) at this time. Indeed, it would not be going too far to say, in keeping with studies throughout the ages (e.g. philosophy, social science, literature, medicine, psychology, etc), that one could not help but be moved and genuinely guided more by compassion than by law in the current circumstances. Now is a time for sympathy and empathy rather than the rubber truncheon of the law to insist on rights. And in keeping with the legislative requirement, [X]’s best interests must prevail over all else, including parental and other rights that are claimed to be asserted.[2]
[1] See, for example, A. Kellehear, “Grief and loss: past, present and future,” (19 August 2002) 177 Medical Journal of Australia 176; I. Maddocks, “Grief and bereavement,” (15 September 2003) 179 Medical Journal of Australia S6; B. Raphael, “Grieving the death of a child,” (2006) 332 British Medical Journal 620.
[2] See. s.60CA of the Act.
Secondly, having regard to this factual, basal point of reference in [X]’s life (and that of his immediate family), in U v U the High Court referred specifically to the uncontested reality that parenthood involves sacrifice, usually lasting a life-time.[3] Although stated in the context of “relocation”, the principle has wider application. “Sacrifice” in [X]’s best interests must be the judicial and human touch-stone in these proceedings, particularly at this time.
[3] In their joint judgment – again I accent the context of and the issue in the appeal before the High Court was that of relocation – their Honours referred specifically to “obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[3] Their Honours recognised the obvious truth and daily reality that parenthood involves self-sacrifice.
The Court has the significant benefit of three reports from experts. The first is from a Regulation 7 Consultant, Ms Connor; the second is a short affidavit from [X]’s treating therapist, Ms R; the third report is from the Court-appointed Family Consultant, Ms Lang. All of these Reports are from persons who are both well qualified and vastly experienced. Unsurprisingly, there is significant consistency between the comments and observations in the Reports, especially in those from Ms Connor and Ms Lang.
Mr Cullinan, who appeared for Mr Lynch, stated that his client did not accept the findings in these reports, and challenged the factual bases for the comments and recommendations made in them. He made these submissions without providing any evidence to support his contentions. Accepting that these are interim proceedings only, there was no evidence provided that would or could cause the Court not to accept the Reports, either in relation to their comments and observations, as well as in relation to their recommendations.
It is, of course, one thing for a party (either directly or through an advocate) to express either dismay with or even hostility to the contents of any report before the Court. Such expressions are not unusual or overly surprising. It is quite another thing, however, to challenge a report and to do so without providing any evidence that is of comparable standing. Rather unfortunately, that is what happened at the interim hearing on behalf of the second respondent, Mr Lynch. In the absence of any evidence of comparable standing, no advocate should make such challenges. Presumably at a final hearing – if there is one – and if such a challenge is maintained, appropriate evidence will be led by appropriate experts.
After setting out summarily the respective proposals of the parties, these brief reasons proceed by considering first the evidence of the experts (with special emphasis on Ms Lang’s recent report), then dealing with the respective contentions put before the Court in the light of the available (but as yet untested) evidence and according to the usual authorities that deal with the “legislative pathway.” Those authorities are, of course, Goode v Goode and later cases, such as Keach & Keach.[4]
[4] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
For the purposes of context, principle and legislative framework, I have noted in other judgments the utility of Brown J’s observations in Mazorski v Albright,[5] which provide a helpful summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents (as well as other family members, such as in this case the applicant Grandparents) and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings. Her Honour’s “twin pillars” is a more than convenient “short-hand” expression, which is teased out later, in relation to the “legislative pathway.”
[5] (2007) 37 Fam LR 518 at [3] – [6].
B. Parties’ proposals
As already indicated, the Applicants are [X]’s Grandparents. They seek orders whereby [X] will spend three nights with them during each school holidays. Various consequential orders are sought in relation to the commencement and finishing time of such events, and in relation to handover.
Two comments may be made quickly in this regard. First, the Applicants’ proposal are, in my view, reasonably modest. Subject to what is said below, in my view it is not a question of whether such orders are made but more so when and how they might be implemented, given the circumstances of the case.
Secondly, Counsel for the Grandparents, Mr Arthur, sensibly indicated that if/when such orders are made, his clients would essentially “retire” from the litigation, thus leaving only [X]’s parents in the contest.
[X]’s Mother seeks interim orders (with which I am concerned here rather than final orders at this stage) that (a) she have sole parental responsibility for [X], (b) [X] live with her, (c) [X] spend time with his Father and Grandparents “as he may choose” with such time to be supervised at a nominated contact centre. Other orders are sought whereby mediation is to take place at the end of the year in relation to time that [X] spends with his Father and with his Grandparents.[6]
[6] Ms Harper also seeks an order for [X]'s Father to sign a passport application. A letter was tendered by Ms Harper’s solicitor, dated 27th November 2008, to the Father’s solicitors requesting that the passport application be signed. It was submitted by Mr Lynch’s solicitor that the order sought in this regard was, to speak a little generally, of recent origin. The November ’08 letter says otherwise. The order sought by [X]’s Mother will be made, with the usual proviso that if the papers are not signed within 14 days, s.106A of the Act will operate to authorise a Registrar to sign them.
[X]'s Father, Mr Lynch, seeks no interim orders in relation to parental responsibility (on a final basis he seeks an order for equal shared parental responsibility), but otherwise seeks orders that [X] live with his Mother. He also seeks orders that provide for a graduated increase in time that he spends with [X], beginning with one day per week (for 3 months), then moving to weekend time (each alternate weekend) with each Saturday in the “off week.” Other orders are sought in relation to [X]’s surname (to be “Lynch” rather than “Harper”), [X]’s reference to persons other than his biological Father as “Dad or Daddy”, and one specific item that relates to [X] attending Mr Lynch’s wedding.
I turn to the expert evidence.
C. Expert evidence
I will deal with this evidence as summarily as possible. In her Report dated 19 August 2009 (released to the parties the same day), Ms Lang notes the following.
First, she observes, at [9], that [X] is a “strong minded and determined nine-year old.” He continues to feel the loss of his sister, but that he is helped by talking with his psychologist, Ms R.
At a little length, at [10] – [13], Ms Lang deals with [X]’s relationship with his biological Father, Mr Lynch. To put it mildly (and in my words) it is very strained. It is now at the point where [X] does not refer to Mr Lynch as “Dad” but only by his Christian or first name “[omitted]”, that he is resistant to spending any time with Mr Lynch, that he regards Mr Lynch as “mean” (in part, this is due to Mr Lynch’s refusal to sign the passport application to which I have already referred), and that he does not regard Mr Lynch as his Father nor he ([X]) as Mr Lynch’s son. [X] also commented to Ms Lang that it was distressing (for him and his family) when Mr Lynch and the paternal Grandparents attended his sister’s funeral.[7] He said to Ms Lang that he distrusted Mr Lynch.
[7] [X]’s older sister [Y] provided the Court with an affidavit (filed 18th May 2009) in which she deposes to (a) the acrimonious relationship between Ms Harper (her Mother) and Mr Lynch, (b) the very close relationship between [X] and Mr R (Ms Harper’s husband, whom she married in 2003) and (c) the fact that, via message to his sister, she requested Mr Lynch and his family not attend her sister, [Z]’s, funeral. When advised by message from Mr Lynch that he and his family would attend the funeral, she rang Mr Lynch to request [again] that there be no such attendance. She deposes to that conversation turning into an argument. She also deposes to the distress Mr Lynch’s attendance at the funeral caused [X].
In regards to the relationship with his Grandparents, [X] said to
Ms Lang that “they are nice” and that he was happy to see them at Marymead. He also expressed concern that if he spent time with his Grandparents Mr D. Lynch would turn up and, in effect, abduct him. Through their Counsel, the Applicant Grandparents indicated to the Court that they would give an undertaking that Mr Lynch would not be permitted to be at their farm while-ever [X] was spending time with them there.
Ms Lang reported on her “feed-back” session with the parties. Also summarily stated, the following may be noted. First, Mr Lynch reacted “with some frustration and anger.” He blamed Ms Harper for causing [X]’s rejection of him. He dismissed the view that because of his limited involvement in [X]’s life, [X] might not have had the opportunity to form an attachment with him to build a secure father/son relationship. Mr Lynch acknowledged that a significant cause of concern that impacted on [X]’s relationship with him was the acrimony between [X]’s parents. Another significant factor in the equation is [X]’s obviously close relationship with Ms Harper’s husband (who [X] calls “Dad”), which is a further cause of angst for Mr Lynch for a variety of reasons recounted by Ms Lang, but which I do not need to relate again here.[8]
[8] Ms Lang records, at [23], Ms Harper stating that Mr R has been around `since [X] was eight weeks old.’
In conclusion, Ms Lang states, at [25]: “Given [X] is mourning the death of his sister his need for … security is more pronounced than it might otherwise be. Ms Harper’s comment that [X] is anxious that the most significant people in his life [Ms Harper and Mr R] might also die is pertinent.”
After setting out in significant detail a range of concerns expressed by [X] about Mr Lynch, Ms Lang expressed a view, at [26], that if these concerns remain this “can only lead to [X] becoming even more entrenched in the rejection of his father.”
Next, Ms Lang states, at [27]: “I concur with Ms R that it is a difficult time for [X] to be faced with spending time with his father on an enforced basis.”[9]
[9]Sagely, she opines, at [28]:
Although his paternal grandparents … are opposed to being used as a link between the child and his father, they might well provide a means for [X] to review his relationship with his father in a more positive light. Mr and Ms Lynch might, therefore, consider spending time with [X] at Marymead Contact and Change-Over Centre on a temporary basis with the view that their time together would move to their residence. The re-introduction of [X] with his father might be considered once this has occurred.
Respectfully, I agree with Ms Lang’s observation and recommendation. It must and can only be a case of rather gradual steps at this time and for the foreseeable future, however difficult or even frustrating it might be for both Mr Lynch and for the Applicant Grandparents. Such are the sacrifices to which I have already referred. They must be made in [X]’s best interests.
To complete the observations from Ms Lang, she recommends that
Mr Lynch undertake a parenting course, and that his parents take part in the ARCK program conducted by Marymead. Rightly she observes that if [X] can see that his parents are [ultimately] able to conduct at least a business-like relationship, it may promote a further basis for a re-kindling and re-building of the relationship with his Father. In addition to Ms R, the ARCK program would also provide [X] with a counsellor who could provide appropriate feed-back to his parents “to enable them to plan for his future.”
D. The legislative pathway and [X]’s best interests
I can deal at the outset, somewhat summarily, with the presumption of equal shared parental responsibility that would otherwise apply pursuant to s.61DA(3).
Given the uncontested evidence regarding the level of acrimony between the parties, as well as the extremely limited involvement that Mr Lynch has had in [X]’s life to date, it would not be in [X]’s best interests for such an order to be made. It necessarily follows that there will be an order that Ms Harper have sole parental responsibility for [X]. There will also be an order, which recognises the long term and daily reality, that [X] will continue to live with his Mother.
In large measure, the statutory requirement to protect [X] from [further] psychological harm, as well as according to common sense and basic sensitivity, requires that the Court be especially attuned to parenting orders that provide appropriate protection to him, guided by the expert evidence that is before the Court and to which I have referred.
As already summarised by reference to Brown J’s “twin pillars” statement in Mazorski v Albright, I wish only to emphasise the tension in these proceedings between doing what can reasonably be done, in the tragic circumstances that enshroud this case, to facilitate [X] re-establishing a relationship with his Father, at the same time as protecting [X] from any further psychological and emotional trauma.
The angst and frustration of Mr Lynch, in particular, is palpable. However, notwithstanding him annexing to his most recent affidavit (filed on 17th August 2009) innumerable photographs of obviously happy times with [X], they are invariably when [X] was very much younger than he is today.[10]
[10] In what follows, unless otherwise required, I follow sequentially the order of “additional considerations” set out in s.60CC(3) of the Act. For the sake of completeness, I note here that some, such as s.60CC(3)(h) & (i), have no application to the current facts of the matter.
[X] has made his views very strongly known. Giving every allowance to his younger years, he remains both steadfast in his resistance to, and deeply hurt by, Mr Lynch. In my view, this must be, and is, a very significant consideration.[11]
[11] For a general discussion of how to treat the views of children by reference to various, relevant literature, see my discussion in Barak v Veitch [2008] FMCAfam 335 and the literature and cases there cited.
At the same time, [X] has clearly expressed his receptivity to seeing his paternal Grandparents, albeit that it remain at Marymead, at least for a time. As best they can, they should not see it as an affront to them but as part of a transition (all things going well) for [X] to build trust and a sense of safety at this time in his life when he is feeling particularly vulnerable. Such will be the sacrifice for them, at least for a little time yet.
I will make an order for the Applicants to spend time, to be agreed through negotiation or mediation if necessary, with [X] at Marymead until the end of the year. This is to be reviewed by Ms Lang (or such other person to be agreed: perhaps even Ms R) at the end of the year.
There will be a notation to the effect that, subject to the satisfactory progression in that time of the relationship between [X] and his Grandparents, the orders as sought by them will likely be granted, albeit that that too might be graduated (e.g. one night, then two nights, building up to three nights). Again, such matters should be the subject of further negotiation and, if necessary, mediation, rather than coming back to Court.
The nature of [X]’s relationship with the protagonists, and the fraught relationship between Ms Harper and Mr Lynch, all of which are outlined in Ms Lang’s report, aided by Ms R’s affidavit and report, are sufficient to deal with sub-paragraphs (b) – (g) and (i) of s.60CC(3), as well as s.60CC(4) & (4A).
Although raised in various affidavit material, given what has already been addressed, I do not think it necessary to consider at this stage a number of allegations relating to the second respondent, Mr Lynch’s, violence. Likewise I do not propose dealing with allegations of Mr Lynch’s use of alcohol and drug use during the brief relationship with Ms Harper, now some eight or so years ago. Such matters, if necessary, can and will be addressed at a final hearing when all of the various contentions, by all parties can be tested and examined as to veracity, weight and relevance. Attenuated, interim proceedings are not the place for such things. Here, of course, as already indicated, the Court has the inestimable benefit of three, separate expert reports which, in very large measure, support the position of Ms Harper.
In the light of the evidence before the Court, notably that of Ms Lang, except for the orders to which I have already referred in these reasons concerning [X]’s Grandparents, at this stage of the proceedings
I consider it to be in [X]’s best interests to make orders as sought by Ms Harper.
As well, I also make orders restraining the parties from discussing these proceedings with [X] and using their best endeavours to ensure that no one else does so. I also make a non-denigration order.
The facts and circumstances of the case also warrant, in my view, the appointment of an independent children’s lawyer.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: D-R Gale
Date:
Attached to an affidavit from Ms R filed on 7th August 2009 is a “Psychological Report” in which
Ms R comments: “At present [X] is very strongly opposed to seeing his father at all. He is quite traumatised by the death of his sister and angry about some of his father’s behaviours at that time. I would support [X]’s decision not to have contact with his father at the moment. To force him to would be counter-productive to re-establishing a good relationship between father and son.” Ms R notes that she has been seeing [X] since 2006 “as needed.” As already indicated, there is some congruence between the comments and observations of Ms Lang and Ms R, on the one hand, and the lengthier Report of Ms Connor, dated 13th March 2009, on the other. For current purposes however, because of the material already canvassed by other, later reports, it is unnecessary to go through Ms Connor’s Report.
0