Miller and Cooper (No 2)

[2015] FamCA 1036

FAMILY COURT OF AUSTRALIA

MILLER & COOPER (NO 2) [2015] FamCA 1036

FAMILY LAW – CHILDREN – interim orders – where the mother seeks orders for the child to spend supervised time with the father – where the mother considers that the father poses a risk to the child – where the mother will not comply with the current order – where the father seeks that the child live with him between now until the resumption of trial to ensure the ongoing maintenance of a meaningful relationship – where the mother considered that a recovery order would be necessary to ensure compliance with any order of the Court – where the ICL supports the child living with the father for a period of time – where there is a recent family report – where the report writer is concerned as to the adverse influence of the older sister – where a recovery order is considered to be a last resort – where it is ordered that the child spend 14 days in the care of the father and then return to the mother – where it is ordered that for that period the father have sole parental responsibility for the child’s education. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Miller

RESPONDENT: Ms Cooper

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4728 of 2012

DATE DELIVERED: 25 November 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lindsay

SOLICITOR FOR THE APPLICANT: Paul Doube Lawyers

COUNSEL FOR THE RESPONDENT: Ms Towler

SOLICITOR FOR THE RESPONDENT: Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That the order of 3 September 2015 be suspended.

2. That B born … 2009 (“the child”) shall spend time with the father from 3.30 pm (or the conclusion of school) on Thursday 26 November 2015 to 8.15 am (or the commencement of school) on Thursday 10 December 2015.

3. That the mother will ensure that the said child attends school on 26 November 2015.

4. That the mother will do all things necessary to advise and instruct the child’s school that the school records shall be amended to reflect the father as a parent of the said child and to include his contact details.

5. That the mother will do all things necessary to forthwith advise the school of the father’s attendance at the school during the period that the child shall spend time with him pursuant to these orders.

6. That for the period that the child shall spend with the father pursuant to these orders he shall have sole parental responsibility for the child’s education and nothing in these orders shall prevent him from attending at the child’s school.

7. That should the child not come into the father’s care pursuant to these orders THEN in respect of the child B born … 2009 and pursuant to Section 67U of the Family Law Act 1975 (as amended), a Recovery Order do issue authorising and directing the Marshall, all Officers of the Australian Federal Police and of the Police Forces in All States and Territories of the Commonwealth of Australia with such assistance as may be required and if necessary by force:-

   (a)       to find and recover the said child;

   (b)return the said child to the father forthwith at his residence, or such other location as the father and the person effecting the recovery agree to be appropriate; and

   (c)to stop and search any vessel, vehicle or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the said child may be found.

8. In the event that a Recovery Order is required THEN the father’s time with the said child shall extend for a period of fourteen (14) consecutive periods of 24 hours commencing from the time the said child comes into his care.

9. That during the period that the child shall spend time with the father pursuant to these orders, unless agreed between the parties, the mother shall be restrained and an injunction granted restraining her from attending upon or at the child’s school being C School.

10. That the father do forthwith forward a copy of this order to the Principal of C School.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller & Cooper (No 2) 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 ADELAIDE

FILE NUMBER: ADC 4728  of 2012

Mr Miller

Applicant

And

Ms Cooper

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 5 November 2015 I heard argument in respect of Applications in a Case filed by each of the parties on 30 October 2015. Judgment was reserved and ultimately reasons were delivered on 13 November 2015 that dismissed the interim proceedings filed by each of the parties.  The effect was that order 2 of orders made 3 September 2015 dealing with the time that the child B born in 2009 should spend with her father continues in operation.

2. At the conclusion of the interim hearing on 5 November 2015 orders were made that brought forward the part-heard trial listing from 21 December 2015 to 23 November 2015 noting that the original date was not vacated.

3. By Application in a Case filed 18 November 2015, the mother sought orders that the trial date commencing the week of 23 November 2015 be set aside and that the trial be heard in December.

4. In addition, the mother sought a suspension of orders made 3 September 2015 and in lieu the father have supervised time with the child.

5. The application was supported by an affidavit of the mother.  It provided further evidence in respect of the state of the mother’s legal representation and the potential relevance of the mother obtaining a copy of the transcript of the proceedings to date. The mother ordered the transcript on 16 November 2015 and the invoice corroborates her submission that transcript was ordered on a 10 day turnaround namely, that it would be received on 26 November 2015 at a total cost of $5,794.

6. The affidavit did not raise new information that would support the further orders sought by the mother namely that the child’s time with the father should be the subject of strict supervision.

7. It is not controversial that the child has not spent time with the father since 18 October 2015.

8. The mother’s position is that whilst she acknowledges she is in current breach of the order, she considers that the father poses a risk to the child and accordingly will not comply with the current order other than to acknowledge that there should be some effort made to maintain a meaningful relationship between the child and the father.  This should be achieved by the orders that she seeks namely, that the father’s time with the child be supervised.

9. On 19 November 2015 I dismissed the balance of the mother’s Application in a Case filed 18 November 2015 but adjourned further consideration of paragraphs 1 and 2 (orders that would see the current trial date vacated) to 23 November 2015.

10. The mother had not raised any new matters and accordingly there was no reason to reconsider orders made on 13 November 2015 which had the effect of confirming the continued operation of orders made 3 September 2015.

11. On 23 November 2015 the father was present and represented by counsel.  Counsel appeared for the Independent Children’s Lawyer (“ICL”) and helpfully, the mother was now represented by a solicitor from Southern Community Justice Centre.

12. The involvement of the mother’s solicitor was helpful and gratefully received.  She confirmed that there is now a grant of legal aid which enabled counsel to be briefed for the mother for the resumption of the part-heard trial.  Counsel was identified but the Court was told that he was not available for a trial commencing 23 November 2015, but would be available if the trial returned to its original listing of 21 December 2015.

13. There was a requirement of counsel that transcript be received, but that was only to assist counsel in his preparation of the matter and in no way was the grant of legal aid conditional upon either transcript being received or any further consideration by counsel as to the merits of the mother’s case.

14. In summary, the Court could now be satisfied that if the proceedings were adjourned as requested by the mother, the Court would be assisted by her representation in the proceedings generally by Southern Community Justice Centre, but at the trial in particular by experienced counsel.

15. Counsel for the father opposed the application. It was his argument that the mother had effectively manipulated the Court process and was intent on delaying the resolution of the proceedings for as long as was possible.  He pointed to the unanswered correspondence forwarded by the father’s solicitors to the mother seeking information as to when the mother had received a gift of money which allowed her to order and pay for transcript.  It was also suggested that the mother could have paid extra and achieved a three or five day turnaround rather than a 10 day turnaround.

16. It must be noted that the proceedings were originally listed for 21 December 2015. They were brought forward because of the interim proceedings of the parties wherein the father alleged that the mother was deliberately not complying with orders allowing the child to spend time with him and for her part, the mother complained that the father posed a greater risk to the child than hitherto was the case arising from the alleged further disclosures of the child’s older half sibling that she had been the subject of repeated sexual assault by the father.

17. The father’s counsel properly conceded that there would not have been opposition to the mother’s application to restore the proceedings to the later date if there was ongoing compliance with the orders made 3 September 2015. That was not the case and the father’s concern is that by 21 December 2015 he would not have seen the child for a period of slightly more than two calendar months.

18. I determined that the matter should be dealt with in two parts.  It was necessary to determine the question of the adjournment on its merits and then I would entertain an application by the father to reinstate his application of 30 October 2015 seeking orders that would place the child in his primary care during the adjourned period and a recovery order, if required, should the mother not effect a delivery up or handover.

19. For reasons that were delivered, I considered that it would be in the interests of the proper administration of justice that upon the basis of confirmation of the mother’s representation by solicitor and counsel, the proceedings should be adjourned.

20. All parties conceded that the mother may well be significantly disadvantaged by being required to cross examine the father and his witnesses.  Whilst that alone would not be the sole criteria, given the nature of the allegations alleged against the father, the more focussed the cross examination of the father the better the Court’s ability to make orders that would safeguard the child’s best interests.

21. Accordingly, orders were made vacating the trial from the week commencing 23 November 2015 and relisting the matter for hearing commencing 21 December 2015.

FATHER’S TIME

1. Counsel for the father argued that it was necessary for orders to be made that would ensure the ongoing maintenance of a relationship between the child and the father.  The mother made it clear that she would not comply with the current orders and notwithstanding that her application was dismissed, without there being a method of enforcing an order that would restore the relationship, there would be only lip service paid to the orders of 3 September 2015.

2. The circumstances were made more complicated by the mother’s concession that a recovery order would be necessary to ensure compliance with any order of the Court.  It was not the position of the mother to facilitate the child coming into the care of the father irrespective of the circumstances.

3. Counsel for the father and the ICL made strong submissions that an order should be put in place that would see the child spending time with the father, acknowledging that the orders of 3 September 2015 could not effectively be enforced by a recovery order.

4. The ICL considered that it would be too disruptive and potentially distressing to the child to have a recovery order used on each and every occasion that the child was to spend with the father pursuant to the September orders.

5. Therefore, the father seeks an order that the child live with him between now and the further order of the Court, but at least until the resumption of the trial in December.  There was a modest concession made by counsel that subject to the mother indicating a preparedness to comply with orders, the child could be returned to her for some days given that the child had not spent such an extended period in the care of the father and away from her mother and her half-sister.

6. Counsel for the ICL was a little more cautious.  She considered that an extended time was necessary but proposed that it be for a shorter period of some two to three weeks duration.  The wisdom of such an outcome is that the child would then remain with the father but with the understanding that she would be returning to the mother’s home on a designated date.

FAMILY CONSULTANT

1. Counsel for the father referred to the most recent report of the family consultant dated 17 November 2015 and found as an annexure to the affidavit of the ICL filed 18 November 2015.

2. This is the third report of the family consultant and I note my reference to an earlier report of the family consultant in my reasons delivered 13 November 2015.

3. The purpose of the report was not directed to the interim proceedings but rather, to assist the Court in the determination of what final orders would best serve the child’s interests.

4. There is however some assistance that can be obtained from the involvement of the family consultant.  The report follows the interviews of the parties and the child with the family consultant on 30 October 2015.  There was also an observed interaction between the child and the father on that date.

5. Whilst the interviews took place on the same date that the parties each filed their separate applications, the mother advised the family consultant of the allegations of sexual assault upon her elder daughter which forms the basis of her application to suspend the father’s time with the child.

6. The family consultant therefore had the advantage not only of the significant history of the matter (her involvement having been recorded in her two previous reports of 2013 and 2014) but also the mother’s most recent allegations.

7. The observed interaction with the father was reported to be appropriate and warm.  The child “seemed comfortable throughout and [the father] smiled frequently and was appropriate at all times”.

8. The child did not say anything to suggest that the father had behaved inappropriately with her and that “nothing bad happened to her when with her father”.

9. An important aspect in the proceedings is an acknowledgement by the mother that her elder daughter is strongly opposed to the child spending time with her father.  The family consultant records that the child is aware of these negative views and it is her concern that in the current circumstances the child is likely to be influenced and upset by the perceptions of her sister of her father and her allegation that she was the subject of ongoing sexual and physical assault and violence perpetrated by him.

10. Equally, the child appears strongly bonded to her mother and sister.  She reports of happy times in her mother’s home and would be distressed if they were no longer to be a part of her life.

11. Accordingly, there needs to be an appropriate balance struck by orders that would ensure that a relationship is maintained between the child and her father noting its strength and value to the child, but to give careful consideration to the construct of the orders noting that the mother will not comply with the current orders.

12. It seems to me that a recovery order is a method of last resort and if it is to be implemented, then it should be of narrow compass.

CONCLUSION

1. I am assisted by previous orders made providing for the child to spend extended time in the care of the father during school holidays.  Indeed, as recently as the September/October school holidays, the child spent eight days in the father’s care as provided for in paragraph 2(b) of the orders of 3 September 2015.  That order continues the earlier arrangements during the July school holidays as set out in the order of 2 July 2015.

2. I have determined in my reasons delivered 13 November 2015 orders that best serve the interests of the child by continuing the beneficial relationship between the father and the child as observed by the family consultant.

3. A different order now needs to be made in circumstances where the mother has indicated an unwillingness to comply with those orders.  The order may well be different but at its fundamental core are the relevant considerations in s 60CC of the Act and in particular the primary consideration of needing to maintain a relationship between the father and the child.

4. It may well be even more critical in circumstances where the family consultant is concerned as to the adverse influence that the older sister brings to bear arising from her negative view of the father.

5. There is a risk of the child’s relationship with her father being undermined during the period of the adjournment.

6. Any order made must bring to account the potential for risk and harm to come to the child and if so, those considerations must be given greater weight.  That issue has been heard and determined other than if the order that the father seeks namely, for a continuous period of about one month, would in and of itself carry a risk.

7. I do not consider that it would be appropriate for the child to be removed from the mother’s care and placed with the father for a period of about one month without spending time with the mother or her half-sister.  I also do not consider that the mechanics of returning the child to the care of the mother for a short period before going back to the father is likely to involve a smooth transition.  I suspect and consider that there is likely to be distress occasioned to the child.

8. There is much force in the submissions of counsel for the ICL that the appropriate order should provide certainty to the child of her return to the mother’s home.

9. Given the history of the child spending extended time with the father during school holiday periods, it seems to me that the interests of the child can be served by suspending the order of 3 September 2015, and an order being made that the child would spend 14 days in the care of the father and then return to the mother.

10. The mother will not voluntarily deliver up the child.  Accordingly, the Court is invited to make a recovery order in those circumstances.  Fortunately, if it is required, it will be utilised on one occasion at the commencement of the father’s time.

11. It seems appropriate that the father attend the child’s school to collect the child at the commencement of his time.  The father’s evidence and the mother’s position as expressed to the family consultant in the most recent report is that the father has no standing at the school because he does not appear as one of the enrolling parents.

12. There does not appear to be any good reason why this should be the case, but because the child will be in the father’s care during the last few weeks of the current school term, it would not be appropriate for the child that there be any difficulty in the father’s ability to attend the school and to interact with the school staff and the child’s teachers as may be required. Accordingly, for the period that the child is in the father’s care, I propose to order that he shall have sole parental responsibility for the child’s education and order the mother to do all things necessary to cause the father to be recorded as a contact person for the child and be authorised to attend the child’s school

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 November 2015.

Associate: 

Date:  25 November 2015