Macy and Sanford

[2019] FamCA 933

FAMILY COURT OF AUSTRALIA

MACY & SANFORD [2019] FamCA 933

FAMILY LAW – CHILDREN – REVIEW OF REGISTRARS DECISION – Where mother files an application seeking a review of consent orders in a parenting matter made by a Senior Registrar – Application for Review dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Macy

RESPONDENT: Mr Sanford

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: SYC 5112 of 2015

DATE DELIVERED: 14 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 14 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILREN’S LAWYER

Ms Tin

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission New South Wales

Orders

1. The application filed by the mother on 27 March 2019 seeking a review of an Order made by a Senior Registrar on 28 February 2019 is dismissed.

IT IS REQUESTED

1. The parties view the video “Tommy” at a time and date reasonably nominated by the Independent Children’s Lawyer.

2. Consideration be given to having this matter listed for final hearing in August/September 2020 at Sydney.

IT IS FURTHER ORDERED

1. Costs of the Independent Children’s Lawyer be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Macy & Sanford 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 SYDNEY

FILE NUMBER: SYC 5112 of 2015

MS MACY

Applicant

And

MR SANFORD

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. X was born in 2013 (‘the child’), and has just celebrated his sixth birthday.  His parents, Ms Macy (‘the mother’), and Mr Sanford (‘the father’), have been engaged in litigation in this Court since 2015.  The hostility between the parties has continued for many years, and probably started well before the commencement of these proceedings.  Their views of each other, and about each other, are palpable, from my observations of them on the bench.  The issue that I have been asked to deal with today arises out of some consent orders made by Senior Registrar Campbell (‘the Registrar’) on 28 February 2019 (‘the Orders’). 

2. The mother filed a Review of those consent orders about 25 or 26 days after the Orders were made.  She has, as I understand it, two fundamental concerns.  The first is the timing of the holidays, as it, in her view, impacts on the development of her relationship and the child’s relationship with her and her new partner.  Her second concern is in relation to the weekdays: the order that the child spend overnight time with the father each Wednesday.  The mother says that this has exhausted the child and has caused issues insofar as the child is concerned.  It is in the light of those narrow issues which I discussed with the mother that this application comes before the Court.

3. The mother, as is the father, are both not represented by lawyers, however, fortunately for this child, there is an Independent Children’s Lawyer involved.

THE ISSUES

1. The issues I have to address are as follows:  firstly, given that this was a consent order, and having regard to rules in respect of appealing from a consent order, even an interlocutory consent order, there is only seven days to lodge that review, and the review is lodged out of time.  So it is my task to consider, having regards to all of the circumstances of these parties, whether I should extend the time for the mother to determine, or to have determined, her relatively narrow issues. 

2. The second is whether I ought to in all of the circumstances.  The mother says, as I have indicated earlier, that it is not in the best interests of the child for the Orders to continue.  The mother says that she was under a great deal of pressure at the time the orders were made, and did not fully understand them.  I have had regard to her oral submissions and to her written submissions.  The father says that the situation is working well, and that there ought not to be any changes as that would mean for him that the child would spend less time in his care.  

3. The Independent Children’s Lawyer, in her careful written submissions and in her careful oral submissions, says that there ought not to be a change to the existing orders, given that it would increase the face to face contact that each of the parties would have at changeover.  She also took me to the school report of the child’s first year of school.  I like having a photograph of children, because it means I am dealing with a face and a name and not a series of numbers and some abstract aspect, because this is, in fact, about the child, not about the parent. 

4. He seems to be doing well at school, and he seems a sweet young boy, and I have, as I have indicated to parties, no doubt that the conflict that the parents have, in one form or another, inflicted upon him has done him little good.  The conflict between these parents cause me to think about a decision of Quinn J in Bruni & Bruni (2010) ONSC 6568, where he said about that case, and I quote:- [1]

   This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.

   [1] At paragraph 2.

5. He went onto say, at paragraph 10:-

   In the midst of this social stew, perhaps it is not surprising that [the parents] are having problems, serious problems, regarding the custody of, and access to, their children. The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. [The parents] hate each other, as do [the father] and [the mother’s partner]. That hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason) and a satisfactory legal solution is impossible (as hatred has no legal remedy).

6. It is in that context that I will, perhaps, using the words of his Honour, naïvely suggest that the parties view a video in the faint hope that it can induce some method of peace.  I am not asking the parties to capitulate, because capitulation does not give rise to good outcomes, but I ask the parties to reflect on themselves.  In determining whether I should extend time, I have considered the affidavit material filed by the mother, in these proceedings.  I have carefully considered her oral and written submissions.  I am aware that this case has been the subject of a request for a family report, and I am aware that the parties are undergoing family therapy, as is the child, although, from what I have seen, it has not given any significant positive outcome for this child at this time.

7. I have determined, first, that the time ought not to be extended, particularly having regard to the submissions of the Independent Children’s Lawyer.  The Family Consultant will provide evidence as to the impact of the parent’s conflict upon the child, and his development, and that will be a matter for the trial judge, whoever that may be, to determine in 2020.  As such, I dismiss the application for a Review of the Registrar’s decision.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 November 2019.

Associate:     

Date:              11 December 2019