Masters and Masters

[2008] FamCA 283

FAMILY COURT OF AUSTRALIA

MASTERS & MASTERS [2008] FamCA 283

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Orders for the child’s birthday

APPLICANT: Mr Masters

RESPONDENT: Mrs Masters

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 4130 of 2003

DATE DELIVERED: 17 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 17 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A.C. Ben-Simon

SOLICITOR FOR THE APPLICANT: Patricia Roberts

COUNSEL FOR THE RESPONDENT: Mr P.A. O'Connell

SOLICITOR FOR THE RESPONDENT: Peter Mann

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms A. Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Peter Lynch

Orders

1. That the husband shall spend time with the child … (“the child”) born … March 2001 from 3.00pm to 5.00pm on the child’s birthday in March 2008 at the Children’s Play Centre at G, and that he shall attend without other people on that day.

2. That there shall be a transcript prepared of today’s reasons for judgment and it shall remain on the court file.

3. That all questions of costs of this day shall be reserved.

4. That until further order the husband shall not bring any person with him during the times to be spent with the child unless the parties agree in advance in writing or they specifically agree in the presence of or are directed by the therapeutic counsellor.

5. That the husband’s Application in a Case filed 5 March 2008 shall be and is hereby dismissed.

IT IS NOTED

1. That the Independent Children's Lawyer is requested to take all necessary steps to ensure that the therapeutic counselling referred to in my orders made on 21 December 2007 shall be put in place as soon as possible.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4130 of 2008

MR MASTERS

Applicant

And

MRS MASTERS

Respondent

REASONS FOR JUDGMENT

1. I have been dealing with this case in the Children's Cases Program since early 2007.  The parties have returned a number of times since then.  When they were last before me on 21 December 2007, we had the benefit of a full Family Report prepared by Family Consultant Ms O.  The issue relates to the time that the father will spend with his seven-year-old child.  It has been clear to me that there are enormous complexities for this little girl. 

2. The case has always been put on behalf of the mother - this is supported now by the Family Report - that for whatever reason, the child is extremely resistant to seeing her father and extremely nervous about spending time with him.  His case is that is because the mother has taken an intransigent stance towards him, and she and her family are influencing the child.  That is not something that I can make any finding about at the moment.  I have a completely open mind about that and in due course if, sadly for the child, her parents are not able to reach some sensible agreement about arrangements for her, then I will hear the case and I will hear evidence to try to unravel those complexities.

3. Between December 2007 and today, the therapeutic counselling that was at the heart of the orders I made on 21 December has for one reason or another not occurred.  I would urge the ICL to take urgent action to ensure that it is now put in place.  It means that an important but small issue in relation to how the child’s seventh birthday is to be celebrated this month has now arisen.  Had the counselling been underway, I would have hoped the issue would have been dealt with in that setting.  Instead the parties find themselves at court yet again today; another frustration and expense for both of them. 

4. It is essential to the mother's case that she is stressed and completely overwhelmed by these returns to court.  It is equally essential to the father's case that he is frustrated by the returns to court and the fact that he is progressing so slowly towards a normal relationship with this daughter.  That said, it is precisely why I put specific orders in place in December 2007 with the matter to return to court in September 2008.  My recollection is that most of the orders made in December were made by consensus and that some issues were brought to me that I decided.  But at the heart of what was agreed was the therapeutic counselling and an adjournment for that to occur to take effect.

5. What has now been agreed in relation to the child’s birthday is that the father will see her, between 3 o'clock and 5 o'clock.  The father wants it to be at McDonalds in the form of a party with his partner, his seven-month-old baby daughter and various grandparents, cousins and other relatives.  The mother wants it to be in the usual play centre where the time has been spent until now, and without any of the additional family members, including the baby whom the child has otherwise not even properly met at this stage.  Her counsel refers to Ms O’s report in which it was made clear that in due course the child should certainly be introduced to the baby, but that is something that needed to be conducted in an orderly and sensitive way given the child’s delicate predisposition.  I note that the psychologist who was seeing the child for some time, also points to the fragility of this particular child.

6. The ICL has indicated sympathy to the mother's position, submitting that at present the child-father relationship can best be fostered by maintaining the very orders that have been so recently set in place.

7. I agree that if I were to order a birthday party with the father's relatives at this stage I would be pre-empting the process I set in place in December.  The therapeutic counselling is the key to these parties avoiding the sadness of litigation and the adverse impact that is likely to have upon the child, and it must get under-way.  It would be counter-productive in my view for this little girl to be thrown into a party at McDonalds with extended family.  In normal circumstances that sounds delightful, but in the circumstances of the child’s predicament it would be pre-empting the efforts to rebuild her relationship with her father, a process that cannot in this case be rushed.

8. The mother's proposal quite rightly has the child seeing the father on her birthday.  It can be at the venue with which this little girl is familiar.  I do not see any reason why he should not bring a gift and balloons and the sorts of things that are lovely on a little one's birthday, but at this stage I am going to have it that no other people be present.  It is my ardent hope that the child will be spending time at least with her little half-sister sooner than later, and if the therapist considers it appropriate that she also will be able to spend time with the father's partner.  But I am going to leave that to the therapist to introduce in the short term, and as frustrating as this is for the father I hope that this strategy might have a better long-term outcome for him and his daughter.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau J

Associate: 

Date:  17 March 2008