McGregg & Vladamere

[2007] FamCA 660

FAMILY COURT OF AUSTRALIA

MCGREGG & VLADAMERE [2007] FamCA 660

FAMILY LAW - CHILDREN- Interim- With whom a child spends time

FAMILY LAW - INJUNCTION- father sought injunction restraining mother and her family- application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr McGregg

RESPONDENT: Ms Vladamere

INDEPENDENT CHILDREN’S LAWYER: Ms Atchison

FILE NUMBER: ADF 485 of 2004

DATE DELIVERED: 7 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Graeme Hemsley

COUNSEL FOR THE RESPONDENT: Mr Verlato

SOLICITOR FOR THE RESPONDENT: Downs Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mrs West

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Ms N Atchison

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as McGregg & Vladamere.

Orders

1. That the father spend time with the child M born in July 2003 at the A Children’s Contact Service at G at times to be advised by the Coordinator as follows:

   (a)On Saturday 19 May 2007 and Sunday 20 May 2007 for one hour on each day.

   (b)On Saturday 9 June 2007 and Sunday 10 June 2007 for one and a half hours on each day.

   (c)On Saturday 7 July 2007 and Sunday 8 July 2007 for one and a half hours on each day.

   (d)On Saturday 4 August 2007 and Sunday 5 August 2007 for two hours on each day.

   (e)On Saturday 1 September 2007 and Sunday 2 September 2007 for two hours on each day.

   (f)Thereafter once a month for a period of two hours on each day pending trial.

2. That the mother keep the father informed in writing of the said child’s medical needs, any issues or appointments relating to the said child’s wellbeing, health, education, school activities, medical and dental appointments and shall either consent to the father attending or shall authorise the father to obtain information from the treating doctor or health professional, with such information being sent to T.

1. That the mother shall notify the father as soon as practicable in the event that the said child is involved in a medical and/or dental emergency, and shall advise the father of the time and nature of such emergency and the name and address of any treating medical practitioner and/or hospital, and the location of the said child.

2. That paragraph 5 of the Form 2 Application filed by the father on 19 April 2007 be dismissed.

3. That paragraph 2 of the Form 2 Application filed by the father on 19 April 2007 and this matter generally be adjourned to 9:30am on 17 August 2007 before the Honourable Justice Strickland.

4. That leave be granted to both parties to attend the adjourned hearing by way of telephone link.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 485 of 2004

MR MCGREGG

Applicant

And

MS VLADAMERE

Respondent

EX TEMPORE REASONS

1. I have before me a Form 2 Application filed by the father on 19 April 2007 and a Form 2A Response filed by the mother on 30 April 2007.

2. The father seeks an order providing for him to spend time with the child the subject of these proceedings at what I will still call the Children's Contact Service at G.  He also seeks orders for an updated Family Assessment Report, for the mother to keep him informed of the child's medical needs, and by way of an injunction restraining the mother and any member of her family from “loitering” near and following the father from the A Children's Contact Service at G.  There is an extensive affidavit the father has filed in support of his application.

3. The mother opposes those orders and seeks dismissal of the father's application.  She too has filed an extensive affidavit giving her version of the relevant factual material.

4. In addition, I have before me an affidavit from the independent children's lawyer which annexes a report from the Children's Contact Service, and that report addresses the familiarisation sessions that started in December last year and continued this year, and then also reports on the observations of the relevant worker at the service as to the time that the child has spent with her father at that service on now four occasions, the most recent occurring on the weekend of 14 and 15 April 2007.

5. This is a matter that is part‑heard before me, and it is being heard pursuant to Division 12A of the Family Law Act.  The matter needs to now be finalised.  There is no agreement currently between the parties.  Indeed, there is a significant dispute between the parties as to what final orders should be made, the mother in effect saying that the father should not spend any time with the child until the child herself seeks to spend time with her father.  The father, of course, wants orders ultimately providing for frequent and regular time with his daughter.  Thus I will need to address today where this matter goes in terms of finalising the trial, but in the meantime I have these interim applications before me.

6. The father in his affidavit, in summary, tells me that the sessions that have taken place have ultimately been successful in terms of the child relating to him and vice versa, but only after the mother has separated from the child.  That is consistent with the report of the Children's Contact Service.  The mother, though, takes issue with what the father says and what the contact service says about what has been occurring at those sessions.

7. The mother, of course, has not been present at those sessions at the contact service, but the mother relies very much on her observations and her discussions with the child both before those sessions and subsequent to those sessions, and in summary she says that the child is distressed, she does not want to go, she does not want to see her father, her behaviour is concerning and there should be no further sessions ordered.

8. The mother says in effect that she does not trust the workers at the Children's Contact Service.  She refers to conversations that she has had with them which have led to that belief.  She is concerned that, as she puts it, the Children's Contact Service is forcing the child to remain and to meet and spend time with the father when, as far as she is concerned, the child just does not want to be there and is distressed as a result.

9. In a matter like this, namely an interim hearing, I am not in a position to make any decision about any disputed facts by simply reading the affidavit material and hearing submissions from counsel, but fortunately I have the report of the Children's Contact Service, which I regard as an independent report that provides an independent perspective of what is happening in this matter.

10. Albeit the mother has concerns about the independence of that service and the methodology of that service and does not, as I say, trust that service, I do not at this stage share that view.  Importantly, the Independent Children’s Lawyer relies on that report as well in submitting that the orders should be made as sought by the father.

11. The mother says, "Well, that's not the entire picture because I am the one who has to deal with the child and who speaks with her and observes her both before the sessions and afterwards," and, of course, the workers at the contact service do not have that advantage.

12. However, as I indicated during the hearing, it is quite telling, it seems to me, to look at what has happened on each subsequent occasion of time spent at the service.  By that I mean, I am being presented with a picture where the child, once she separates from her mother, relates well, behaves appropriately and seems to enjoy the time spent with her father.  The mother says, "Well, that's all very well, but when the child gets back home to me there's distress, the child doesn't want to go, and then when the next session is due to take place, the child again becomes distressed and indicates she doesn't want to attend and doesn't want to see her father."  But what is telling is what the Children's Contact Service then say in their report about what happens on that next occasion; namely, the same thing occurs.  Once the child separates from mother and is with her father, the child behaves appropriately, shows no sign of distress, and there appears to be a close and loving and warm relationship between child and father.  In my view that is significant in terms of trying to assess what in fact is happening in this case.

13. I have said it during submissions, but in my view what is happening in this case is that the mother is making her views known to the child, she is exposing the child to her anxieties, and she is not protecting the child in any way from her views and her concerns.  This is not only apparent from the report of the Children's Contact Service, but also from the affidavit of the mother where she makes no bones about her views and her anxieties and her concerns about the child spending time with the father.

14. It is comforting that, despite that pressure and that influence from mother, this very young child is still able to, during the course of the sessions at the Children's Contact Service, relate well to her father and enjoy her time with him.  I have expressed concern though, and I repeat those concerns, as to how long that might last, with the mother maintaining her attitude in this case.

15. The mother needs help.  She needs some expert advice as to what is happening in her life and the child's life.  I do not propose to make any order that the mother seek such assistance, but I urge her to do so voluntarily.  Her conduct and her behaviour will impact upon this child's psychological health.  I hesitate to think what the long‑term effect of the mother's current attitude will be upon this very young child.  Unless the mother changes her attitude and unless the mother becomes supportive and encouraging of the child having a relationship with her father, then I have grave concerns about this child's long‑term mental health.

16. I know it is early days in a matter like this.  As Mr V has said, we do not have in‑depth reports, and I am making every allowance for that.  Obviously, what I have said is on the basis of the evidence that is before me now.  To repeat, I have the report of Ms C, I have the report of the Children's Contact Service and I have the mother's own affidavit, and, to repeat, the mother makes no bones about her attitude and the fact that she exposes the child to that attitude.  The mother needs to take a step back and consider the health, and the long‑term mental health in particular, of this very young child.

17. I know that the mother has longstanding concerns about the father and what has happened historically in this matter.  Again though, this is an interim hearing.  I have to deal with the evidence that is before me at the moment.  The relevance of the historical matters that the mother is still concerned about and that she has raised in her earlier material will be addressed at the final hearing of this matter.  Today I am addressing a situation where there is a report which says that this child enjoys her time with her father, and in my view that should continue for the time being at least.

18. I propose to make the orders sought by the father insofar as the ongoing time he spends with the child, and I am referring to paragraph 1 of his application.  In terms of paragraph 2, I have indicated and I am still of the view that it is premature to have an updated family assessment.  I want to see how the sessions progress before involving Ms C further, so I do not propose to make that order today.  The mother seeks an order dismissing the entire application, so presumably she is opposed to orders number 3 and 4, but in my view they are perfectly sensible and reasonable and logical orders to make.  The father needs to know what is happening as far as the health of his child, and in my view orders 3 and 4 are appropriate.

19. In terms of paragraph 5 I do not consider that there is sufficient evidence before me to justify the making of such an injunction, and indeed I am not able to grant an injunction restraining a third party from doing anything, so the only injunction that I would ever consider is an injunction restraining the mother from loitering near and following the father from the A Children's Contact Service in G; but, to repeat, I do not consider there is sufficient evidence to warrant such an injunction being put in place.  Thus I propose to dismiss that application.

20. I have indicated the orders I am going to make.  In terms of where this matter goes, I want to explore that with counsel.  Obviously it is premature to list the matter for the final hearing until we have further evidence as a result of these sessions which are about to take place.

I certify that the preceding
20 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 7^th day of May 2007.

……………………………………….
Associate