Mallon and Mallon

[2013] FamCA 632

FAMILY COURT OF AUSTRALIA

MALLON & MALLON [2013] FamCA 632

FAMILY LAW ─ CHILDREN ─ spend time with arrangements ─ whether child should attend counselling

Family Law Act 1975 (Cth)

APPLICANT: Ms Mallon

RESPONDENT: Mr Mallon

INDEPENDENT CHILDREN’S LAWYER: Ms Fellowes

FILE NUMBER: SYC 5894 of 2012

DATE DELIVERED: 19 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 19 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Anne Day & Associates

COUNSEL FOR THE RESPONDENT: Ms Todd

SOLICITOR FOR THE RESPONDENT: Jordan Djundja Lawyers

SOLICITOR FOR THE ICL: Legal Aid NSW Bankstown Family Law

Orders

IT IS ORDERED

1. That the children B born … 1998 and C born … 2001 spend time with the husband each alternate weekend on Saturday from 9 am until 12 noon.

2. That the time the children spend with the husband is to be supervised by Mr D Mallon and / or Ms E and is to take place at the paternal grandparents’ home or away from that home if an activity is planned provided the husband has acknowledged the children’s wishes in regard to any activity.

3. That B is to attend upon Dr F or Mr G from the H Group I Street Sydney at a cost to be shared equally between the parties.

4. That there be liberty to the independent children’s lawyer to list the matter for mention before the Honourable Justice Rees upon the conclusion of the father’s criminal trial in 2014.

5. That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mallon & Mallon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5894 of 2012

Ms Mallon

Applicant

And

Mr Mallon

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. The proceedings before the Court arise out of the relationship between the parents, Ms Mallon, who is the mother, and Mr Mallon, who is the father.  They separated in April 2012.  There are two children of their relationship, B, who is now aged 15, and C, a boy, who is now aged 11 years.  The parents separated in circumstances where the father has been charged in relation to the sexual assault of a child who is not a child of the parties. 

2. The parents and the children had the opportunity of consultation with Ms J the Family Consultant, on 28 November 2012, and she prepared a memorandum for the assistance of the Court arising out of that consultation.

3. On 6 February 2013, orders were made by the Court after hearing, which provided for the father to have supervised time each Saturday from 9 am to 12 noon.  The supervisors were to be either the paternal grandfather or the paternal aunt. 

4. The father is still awaiting trial and the trial is scheduled to take place on 19 May 2014.  It is the mother’s application that the time the children spend with the father should be varied so that the time is each second week on Saturday rather than each week.  The mother proposes and the father agrees that the activities he undertakes with the children on those occasions should as far as possible be away from the home of the paternal grandparents and activity-based.

5. The mother also seeks an order that B attend for counselling with either Dr F or Mr G from The H Group, and that order is consented to by the father. 

6. The parents are diametrically opposed in their views of the children’s situation.  The mother says that the children have been increasingly unwilling to go and see their father and that B, in particular, is stressed and anxious about the visits.  The father says that the mother is influencing the children and actively undermining their relationship with him. 

7. The Court had the advantage of a report from Ms J.  In that report, Ms J in relation to the children says this:

   [B] said that she read an article in a local paper that said that Mr Mallon had hurt a child a long time ago.  She was not sure if this had been before she was born or not.  [B] said that she was shocked when she read the article and said her mother had told her that her father had spent a night in jail as a result of the allegations.

8. Understandably, according to Ms J, B appears confused about this information and indicated that she is uncomfortable about spending time or communicating with her father at present.  She said that she would be relieved if he were to be found not guilty of hurting any children in the past.  B said that Mr Mallon has never hurt her or done anything inappropriate to her.  B went on to tell Ms J that if the father were to be found not guilty, her views about spending time with him in the future would be different.  She said that at the moment she would feel more comfortable about spending time or communicating with her father if he refrained from asking her questions about her mother or the extended maternal family and if he agreed that he would not approach the people that she says she spends time with.

9. B expressed views about professional supervision.  C also told Ms J that his mother had told him that his father had sexually assaulted somebody.  C said that he would feel more comfortable about spending time and communicating with his father if the father would refrain from asking them questions about the mother and the extended family. 

10. It is not hard to understand why the children should have some trepidation about spending time with their father in the circumstances of his criminal charges and their knowledge of those charges.

11. However, it would seem that one of the more salient features of the parents’ relationship is their absolute hostility and criticism of each other.  The father told Ms J that he believes that the mother’s motivation is financial.  The father said that the mother is a compulsive liar, very sly, deceitful and cruel.  The father referred to an alleged affair that the mother had in 2008 and said that it was the mother who telephoned the local paper to ensure that the story about his criminal charges was printed.  The father also told Ms J that the mother’s family had been involved in insurance fraud and bankruptcy proceedings.

12. After reading Ms J’s report, the parents were able to present their cases, and as a result, in part, of the contents of the report, the orders of 6 February were made.  It is important to note that Ms J reports that the children appear to have had close relationships with the father prior to the end of the marriage and that he cared for them for extended periods, for example, in school holidays.  There is no indication that the children have been harmed in any way by the father in the past.  After the orders of 6 February 2013, the children attended weekly with only two exceptions on the visits with their father.

13. The only objective evidence about the effect of those visits upon the children comes from Ms K, who is the counsellor at L School, Suburb M, where B attends.  Ms K has been counselling B on a regular basis since September 2012.  By the beginning of 2013, B had attended a total of nine sessions with Ms K.  Ms K reports that subsequent to February 2013, all the sessions which have been attended by B have been concerned with her emotions surrounding the access visits with her father.  B reports to Ms K that she attends the access visits only to accompany her younger brother and that she experiences high levels of anxiety in anticipation of the visits.

14. Ms K reports that B is often stressed in recalling the events of the visits and that her anger towards her father’s behaviour during these visits has been escalating.  B’s self-esteem has declined and she is generally more anxious towards her school work and the perceptions of other people towards her. 

15. I do not necessarily accept the submission made on behalf of the father, that it is necessary to demonstrate a material change in order to make an alteration to the consent orders of 6 February 2013.  However, if I were to accept that submission, it would be my view that the escalating distress which Ms K reports in B would be sufficient circumstances for the Court to consider changing the orders.

16. Whatever may be the pathology of the parents’ current position in relation to each other, it is the fact, as Ms J pointed out, that the children are caught between them.  Ms J gave oral evidence in this matter on 1 August 2013.  It was her evidence that B particularly was under severe pressure, and it was her strong recommendation that the time that the children spend with their father should be altered so that it took place every second weekend.  It was her advice that the visits should be activity-based and it was her evidence that to lessen the frequency of the visits would alleviate the pressure, particularly upon B.

17. Ms J recommended that, if fortnightly visits were instated rather than weekly, and if after three or four fortnightly visits B is not more relaxed, then support should be sought for B with a counsellor.  It is pleasing to see that the parents have agreed upon that outcome. 

18. Although it may seem to the father that it is a very long time until his trial will be disposed of, it is a short time in the lives of these children.  But it is a sufficient time in which their relationship with him could be put in real jeopardy if too much pressure is placed upon them. 

19. Ms J was careful in her oral evidence to make it clear that she did not recommend a cessation of the time with the children, but Ms J pointed out that the stress which the children currently observe and particularly in the case of B could well be the stress of dealing with the perceptions of each of their parents about the other.

20. Accordingly, the children’s time with the father will be reduced as recommended by Ms J.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 19 August 2013.

Associate:

Date: 19.08.2013