Orontes and Somoza

[2018] FamCA 573

FAMILY COURT OF AUSTRALIA

ORONTES & SOMOZA	[2018] FamCA 573
FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – All previous parenting orders be suspended – Interim Orders that child live with the mother – Interim Orders that the parents have joint parental responsibility for the child – Interim Order that father spends supervised time with the child.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Orontes

RESPONDENT: Ms Somoza

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

FILE NUMBER: PAC 2260 of 2008

DATE DELIVERED: 24 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 24 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Orontes in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER: Ms Neilson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Commission New South Wales

Orders

1. All previous parenting orders in relation to the child X born … 2006 (‘the child’) be suspended regarding spending time and/or communicating with Orontes (‘the father’).

UNTIL FURTHER ORDER

1. The child shall live with Ms Somoza (‘the mother’).

2. The mother and father shall have equal shared parental responsibility for the child.

3. The father shall not attend the school which the child attends without the consent of the mother and the Independent Children’s Lawyer or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

4. The father shall do all acts and sign all documents to engage B Group for Children (‘B Group’) in relation to the father spending time with the child for one (1) hour each alternate weekend, commencing as soon as is practicable, once the administrative arrangements with B Group are put into place.

5. The father shall meet the costs of such supervision at B Group.

6. The mother shall do all acts and sign all documents to engage with B Group to ensure this occurs.

7. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), 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 these particulars are included in these orders.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

2. The Independent Children’s Lawyer shall endeavour to engage with the child and inform him and the mother of the orders that have been made today and encourage the child to endeavour to try this arrangement.

3. If there is disagreement as to the times the father spends with the child at B Group, the Independent Children’s Lawyer shall make a recommendation to the parties as to the appropriate time to fit in with the social and community arrangements of the child over a weekend period, or perhaps commence during a school holiday period.

IT IS FURTHER ORDERED

1. These proceedings be adjourned for further directions before me at 9.15am on 14 September 2018 at Sydney.

2. The mother attend court on 14 September 2018.

3. The Independent Children’s Lawyer forward a copy of these orders to the mother together with a copy of the reasons once finalised.

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
Orontes & Somoza 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: PAC 2260 of 2008

Mr Orontes

Applicant

And

Ms Somoza

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Mr Orontes (‘the father’) and Ms Somoza (‘the mother’) relating to the child X (‘the child’) who was born in 2006 and who is presently aged 12.  The child attends a high school in the Sydney metropolitan area, and is in Year 7. 

2. There have been proceedings between the parents about the child for in excess of 10 years.  The child's time and communication with the father became more difficult at the beginning of 2017, and has deteriorated through that year to the extent that the father has had virtually no meaningful contact with the child in recent times, since at least the second half of 2017 and the whole of 2018. 

3. The father is endeavouring to arrange for the Court to put in place processes to enable the child's relationship with him to be restored.  It is the father's view that the mother is actively alienating the child from him.  An Independent Children's Lawyer has been appointed, yet again, and the mother has not engaged in this process in any meaningful way, at least insofar as the Court is concerned.  It is in the context of a contravention order, and in the context of the father seeking to enforce the order against the mother, that the matter is before this particularly constituted Court for the fourth time since December 2017. 

BACKGROUND

1. An order was made in January 2015 by Judge Sexton in the Federal Circuit Court providing that the parents have equal shared parental responsibility, that the parties are restrained from changing the child's school, and that the father spend significant and substantial time with the child.  There is contact for birthdays and other special occasions such as Father's Day.  There are orders for communication.  There are particular orders for changeover. 

2. There was another court order made on 19 February 2016 in relation to the handing over of uniforms and for the provision of information between the parties.  In April 2016 a further order was made in the Federal Circuit Court in respect of which school the child attends, and there was a notation that the parties agreed to comply with the order for two years. 

3. In April 2017 these current proceedings commenced and the matter came before Registrar George of the Family Court.  The father attended in person, and there was no appearance by the mother.  The matter came before Senior Registrar Campbell on 4 August 2017 and the matter was adjourned to 30 August 2017.  An order was made requiring the mother to be served with sealed copies of the order. 

4. The matter came before the Court on 30 August 2017 and the Senior Registrar made orders permitting the father to enrol the child at C School, and that the Registrar inform the mother of the orders made that day.  The matter came before Senior Registrar Campbell on 24 October 2017.  There was still no appearance by the mother, and the matter was adjourned to 15 November 2017 for a possible undefended hearing.

5. A contravention application had been filed on the same day and was put in a list for hearing before a judge.  On 15 November 2017 an interim order was made by the Senior Registrar that the father be solely responsible for the decision making of the child, and orders were made in relation to the child spending time with the father. 

6. The matter came before me on 18 December 2017 and, given the history of the matter, and for reasons that I enunciated at the time, a recovery order was made.  The child was subsequently recovered to the care of the father.  However, the child left the father's home.  The father has expressed views that the child leaving the home was likely to have been facilitated by the mother through the use of a mobile telephone. 

7. The matter came back before me on 22 January 2018, and the information regarding the child's apparent reluctance, whether contrived or facilitated by others, was made known to me.  As such, I vacated the recovery order and I directed that the parties attend before a family consultant.  It seemed to me to be a concern that the child had absconded.  A child of that age ought not to be out and about by himself, although I note the matters raised by the father. 

8. The matter came before Registrar Heywood on 29 March 2018, and again, as was the case since April of 2018, there was no appearance by the mother.  The matter came back before me on 23 April 2018.  I requested the Department of Family Services to intervene, and they have chosen not to do so.  I asked that an Independent Children's Lawyer be appointed for the child, and I again requested that the mother attend on a family consultant.  The matter was adjourned until today. 

9. Two things have happened since that time.  First, a meeting was held on 30 April 2018, and both the child and the mother participated in that process.  Second, the Independent Children's Lawyer has been appointed, and on the same day as the child saw the Family Consultant, the child saw the Independent Children's Lawyer who appeared before me today. 

10. It is of value to note the intake assessment and the material in the report prepared by the Family Consultant.  First, I note the risk factors set out in the report, and note that many of those are untested and, insofar as the father is concerned, he denies any of the allegations.  The mother asserts that the father mistreats the child and shoves him upstairs into his bedroom, yells at the child and belittles him.  The mother alleges that the father forces the child to share a bed with him because the father rents out the spare room in the paternal home to strangers.  The mother asserts that the father leaves the child in the care of these strangers. 

11. The father denies these allegations.  The father says that the mother uses excessive disciplinary measures with the child, and observed in relation to the allegation of sharing a bed with the child the father says that the child prefers to share a bed with him because they have such a close bond.  In terms of the father’s allegation that the mother uses excessive discipline, the mother says this is fabricated, and the mother refers to an earlier report in support of this assertion.  The mother asserts that the father grows and sells cannabis and that he operates this from his house.  The father strongly denies that assertion. 

12. The parents, interestingly, agree on one thing: that is, that they are unable to co-parent this child.  Each of the parents agrees or asserts that the other is difficult to deal with.  The father asserts that the mother has consistently and persistently breached court orders and has sabotaged the court process.  The mother, in the material, asserts that the father has used the court system against her, which has resulted in her having to attend the Court approximately every three to six months for the last 10 years.  The mother asserts that this is part of a process by which the father continues to hurt her following the failure of their relationship. 

13. It seems not in issue that the parents separated when the child was two years old.  Since that time the child has lived with the mother and has spent time with the father on each alternate weekend, and at other times.  It is clear, and probably not in issue, that the child has been withheld from the father since August 2017. 

14. It was in this context that the mother did not engage in these proceedings and relatively fresh orders were made that the child live with the father.  The recovery order was made, and I worry about issuing recovery court orders, as I would have said at the time.  That fear was realised when the child was recovered and, as I indicated earlier, the child secretly left the father’s home that night and returned to the mother's home. 

15. The father asserts that this was done with the complicity of the mother, but, in any event, whether it was done one way or the other, the child made it clear on that night that he did not wish to remain at his father's home.  The mother says, in an untested way, that the child was distraught when the police recovered him.  The mother said that the child had run 10 kilometres.  The father denied that and says what was more likely to be the case was that the mother was waiting outside to pick him up outside.  I do not know. 

16. The mother says that the child lives in constant fear.  The Family Consultant observed that the child is an articulate, polite, but somewhat nervous young person.  She said the child was emotionally burdened when discussing parenting arrangements.  The Family Consultant reports that the child said to her that ‘he told his mother in 2017 that he no longer wished to spend time at his father's house’.[1]  The father does not dispute these words were said, but says they are said by the child not with any meaning, but as an expression of his mother's views rather than his views. 

    [1] At page 6 of the Child Responsive Program Memorandum dated 18 May 2018.

17. The child said that since he was seven years old, the father had been physically aggressive to him and used offensive language and names to him.  The child frighteningly said:-[2]

    Sometimes I would think about running downstairs and grabbing a knife to stab myself. … I just felt really bad. 

    [2] Ibid.

18. The child said he had not had any suicidal thoughts since last year and is generally happy at the moment.  The child said he believes the father sells cannabis from his home, and gave some descriptions of what he saw.  The child says he feels stressed at school because he worries about the possibility of his father removing him from school.  The child says that he has sometimes seen his father's car parked outside the school, and that the school principal has sometimes informed him that the father has attended school to inquire about him. 

19. The child apparently says that his father does not listen to him, and gave an example about a trip overseas and the father's lack of engagement in respect of what the child says he regarded as a good trip.  He said that the father often rents his room out, and he shares a bed with his father with which he is not comfortable.  The child said on the day he was escorted from his mother's home to his father's home, the police were not ‘bad to me’,[3] but he was still frightened by that experience.  He said:-[4]

    Dad won the Court thing and he got the Federal Police to pick me up and take me to his house. 

    [3] Ibid.

    [4] Ibid at pages 6 and 7.

20. He said when he got to his father's house he could see his father was trying to be different, but he could tell that his father was still angry, and eventually decided to leave and return to his mother's home.  He said:-[5]

    I could tell he didn't really want me there, so I made a decision to leave. 

    [5] Ibid at page 7.

21. The father denies that those are the views of the child.  The mother says the child resides with her, her present husband, or partner, his younger brother Mr D, and sisters Ms E and Ms F.  The child describes his current circumstances in a positive way.  He says he enjoys school and finds the school he attends supportive.  The child says he has friends at school. 

22. The child says that it is stressful to him that his parents are in conflict and that, as well as that, he is worried about his dog G who he says lives at the paternal home.  He says his father hits G.  The child says he can talk to his mother and stepfather or school counsellor when he is worried about anything.  The child sends a message to me [the judge] saying:-[6]

    I don't want to live with dad or have anything to do with him. 

    [6] Ibid.

23. As I said, that material was provided by the child to the Family Consultant.  The father says that this view is one which is not the child’s view, but the mother's view.  The Family Consultant observed that this is very sad that the matter has been before the Court for so many years, and I can but agree that it is sad that this matter is before the Court so often.  The Family Consultant observes that if the father is accurate, that the child is being deprived of a developmentally important relationship with his father. 

24. If the mother is doing what it is that the father asserts she is doing, that would raise concerns about her parenting capacity.  However, if the mother and the child's accounts are accurate, it would appear that the child has experienced physical aggression, harsh discipline and has been exposed to illegal activity, including drugs, physical and verbal abuse and inappropriate sleeping arrangements.  It is not in issue, and it would appear from what was said today, that the child from time to time shares a bed with his father, but his father says it is a request by the child who finds that a comfortable and a safe way for him to interact with his father. 

25. The Family Consultant observed that this continuing dispute appears to be negatively affecting the child's capacity to engage in education.  Further, that the child appears to be quite emotionally burdened, and that it is impossible that his experience at school is a safe or a neutral place.  The Family Consultant opines that some form of therapeutic intervention may assist the child to process the alleged experience of his father with a view to him being re-introduced to the father. 

26. The Family Consultant opines that it may be of value for the father to engage in therapeutic support and/or to participate in a parenting program.  The Family Consultant notes that the child appears to be doing well socially from a developmental perspective. 

27. I had, when the matter last came before me, hypothesised whether the mother ought to be brought to the Court pursuant to a warrant to the police.  The mother did not attend court today, and has not attended court since the commencement of the current round of proceedings, with the exception, of course, of attending on the Family Consultant.  What is troubling to this Court is that the child reflected the same matters to the Independent Children's Lawyer who appeared today. 

28. I raised with both the Independent Children's Lawyer and the father as to what steps I should take at the present time.  The Independent Children's Lawyer is concerned that the continuation of the proceedings will simply add to the burden of this child and will not bring about any change that may or may not be warranted.  The father is concerned that he has been engaged in these proceedings for a year, has had numerous attendances at courts, and orders made, without any meaningful impact, except when the recovery order was made, and that failed because the child left the father’s home. 

29. The concern I have, if I issue a warrant requiring the arrest of the mother and have her brought before the Court, is that this would impose an even greater burden upon this child.  The father says that he is of the view that if he has some time with the child, the child would settle back and their relationship would be restored.  That may well be the case, although it would need the engagement of the child, who, as I understand it, is presently unwilling to do so, according to the Independent Children's Lawyer. 

30. I explained to the father that the role of this Court is to not allow parents to exercise their rights.  It is about the child and meeting the child's needs having regard to the best interests of the child within the Byzantine statutory pathways that is contained in the legislation. 

31. I am, as I said, not prepared at this stage to issue a warrant for the mother as it would seem to me that that would simply add to the burden that this child has to endure, and absolutely close the door on any ability for the child to have some meaningful relationship with his father. 

32. I will not be asking the father to undertake another Parenting After Separation course as, despite the views of the Family Consultant, that has not led to any change. 

1. What I intend to do is to relieve some of the burden from the child at this time.  What I intend to do is put in place some orders which will provide a pathway for the child to spend time with the father in a safe way.  I am concerned about adopting this course because it is, in many ways, rewarding the bad behaviour of the mother in not engaging in these proceedings, but these proceedings are not about rewarding good parents or punishing bad parents.  They are about ensuring that children, or a child, has orders made which meet their interests, and causes no harm, and hopefully promotes the development of the child. 

2. I was very conscious, and I remain very conscious, of the concerns raised by the Independent Children's Lawyer.  I had contemplated bringing the matter back sooner rather than later, but it seems to me that if this is going to work, it will need some time to set it up, and to bring everyone back here too soon will simply set the matter up to fail again. 

3. What I intend to do is suspend the orders in relation to parenting, particularly regarding the father spending time and communicating with the child.  In their place I intend to make an order that the child spends time with the father with someone present from B Group, or the like, and on a regular basis over the next few months to see whether that can enable a restoration of the relationship on a much less confrontational basis.  

4. I will ask the Independent Children's Lawyer if she will engage with the child and the mother to see whether they will engage in that process.  I wonder whether what has driven this is a belief by one party or the other that equal time may well have been the better option for this child when the child wanted time, but not equal time, which is often a view of the parents rather than the child. 

5. I wonder if the child is reacting, and I am confident it perhaps is, whatever the views of the child, to the constant litigation that has surrounded every moment of the child's intellectually conscious life.  We know that there is that concept of infant amnesia where most people do not recall events prior to their second birthday, or sometimes prior to their third birthday.  In this case the child through all of his memory has only seen conflict between his parents. 

6. I intend to permit the father to make inquiries of the school, but not attend the school, pending what is going on.  I do this not in any criticism of the father, but again to give this child some peace of mind because if the child has peace of mind, then the chances are improved in relation to the child re-forming a relationship with his father. 

7. The reasons which I have just delivered will be taken out and placed on the court file.  The Independent Children's Lawyer shall endeavour to engage with the child and inform him and the mother of the orders that are made and encourage the child to endeavour to act to try this arrangement.  If there is disagreement as to the times, then the Independent Children's Lawyer shall make a recommendation to the parties as to the time which you will fit into the social arrangements and community arrangements of the child over a weekend period or perhaps commence during a school holiday period. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 May 2018

Associate:     

Date:  25 June 2018