Peters and Ortona (No 2)

[2016] FamCA 189

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (NO 2) [2016] FamCA 189

FAMILY LAW – CHILDREN - With whom a child spends time – Where there was an application by the mother to reinstate orders providing for alternate weekend and telephone time with the children – Where a s 11F assessment was ordered to ascertain the children’s views – Where orders were made, pending further order, providing for supervised time between the mother and the children.

APPLICANT: Ms Peters

RESPONDENT: Mr Ortona

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: (P)MLC 8590 of 2012

DATE DELIVERED: 30 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 17 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Trapski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Trapksi Family Law

Orders

UNTIL FURTHER ORDER IT IS ORDERED

1. That the children, B born … 2003 and C born … 2005 (“the children”) spend time with the mother at a children’s contact centre as nominated by the Independent Children’s Lawyer for a period of two (2) hours per fortnight and:

   (a)Each parent shall within seven (7) days make an application to the contact centre;

   (b)  Attend any intake assessment required by the contact centre;

   (c)Follow the reasonable directions and recommendations of the contact centre; and

   (d)  The parties bear their own costs.

2. That the mother be restrained from discussing with the children any court proceedings in any jurisdiction, or any potential court proceedings, or any issue regarding the separation of the parties.

3. That the mother be at liberty to engage a private supervisor or contact centre arrangement to spend time with the children as approved by the Independent Children's Lawyer, and for such time to occur at two (2) hours per fortnight at the mother's expense.

4. That pursuant to s 11F of the Family Law Act 1975 (Cth), the children attend an appointment with a Family Consultant, other than Ms E, for assessment at 9:15am on 26 April 2016 and the father the deliver the children for the purpose of the appointment.

5. That for the purpose of completing the s 11F assessment the Family Consultant is permitted to:

   (a)Inspect the court file and read all documents filed in and related to this matter; and

   (b)Read any document produced on subpoena once permission to inspect has been granted to a party or the independent children's lawyer.

6. IT IS REQUESTED that the Family Consultant prepare an issues assessment in writing and that such assessment be made available to the parties, the practitioners and the court prior to the date to which the matter will be adjourned.

7. That the matter otherwise be adjourned to the Senior Registrar's duty list on 17 May 2016 at 10:00am.

8. That each party provide to the other a complete statement of the details of sale of the respective garages in their names on or before 31 March 2016 including:

   (a)   The sale price;

   (b)  The costs and expenses relating to the sale;

   (c)  Any encumbrances paid from the proceeds of sale; and

   (d)  An account of the balance remaining.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona (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 MELBOURNE

FILE NUMBER: (P) MLC 8590 of 2012

Ms Peters

Applicant

And

Mr Ortona

Respondent

REASONS FOR JUDGMENT

1. This matter came before me in the duty list on 17 March 2016 and orders were made on that day. I indicated that I would provide reasons for the decision. These are my reasons.

2. The context in which this case came before me for interim orders requires some explanation.

3. On 26 February 2015 Thornton J made final orders following a defended hearing of some 13 days, in relation to both parenting and property issues. Relevantly, for the application today, Thornton J made orders which provided in summary for:

   ·The father to have sole parental responsibility for the two children, B born in 2003, now 12 years old, and C, born in 2005, now 11 years old.

   ·The children to live with the father.

   ·A number of orders in which it was provided for the children to spend time and communicate with the mother.

4. For the purposes of the application before me, Orders 4(a) and (g) of the orders made by Thornton J provided:

   4.The children spend time and communicate with the mother as follows:

   a)during school terms, each alternate weekend from the conclusion of school (or 3.30 pm if it is a non-school day) on Friday until the commencement of school (or 9.00 am if it is a non-school day) on Monday commencing on Friday 13 March 2015

   …

   g)on each of the children’s birthdays from the conclusion of school until 6.30 pm when such occasions fall on a week day and from 10.00 am until 3.00 pm when they fall on a weekend …

5. It is common ground that the effect of those orders was to cause a significant change in the previous arrangements for the children who had predominantly lived with their mother up until that point.

6. Thornton J’s judgment consists of 421 paragraphs. It is difficult in a short space to summarise the issues between the parties that were before her Honour, which can only be understood by a full reading of the judgment. However, accepting the limitations of that comment, it was the father’s case, as her Honour described it, that the mother “would not facilitate a meaningful relationship between himself and the children. He complained of the mother influencing the children to make false allegations of abuse against him.” (at [9]). The mother’s case was that the children were at an unacceptable risk of harm with the father (at [10]) and she made “made very serious allegations of a history of violence perpetrated against her by the father in the presence of the children during the course of the relationship” (at [11]). Each party strongly disputed the assertions of the other.

7. Following Thornton J’s decision, the mother filed a Notice of Appeal which has yet to be listed or dealt with. Consistent with the plethora of applications that had been filed leading up to the decision of Thornton J, further applications were filed following the decision. Numerous applications for contravention were brought by the mother and several by the father. Again, relevantly for these proceedings, on 28 September 2015 the father filed a contravention application and sought the return of the children who were due to be returned to his care on 26 September 2015 in accordance with the orders of Thornton J but who were not returned by the mother. . This was not the first time that the father had found it necessary to seek orders for the return of the children.

8. The matter came before Macmillan J on 28 September 2015 and the mother did not dispute she had not returned the children, but said her failure to return them was based upon what she alleged to be abuse of the children by the father. Macmillan J made an order for the issue of a recovery order but stayed it to allow for the mother to voluntarily return the children to the father’s care as she had indicated she was prepared to do so. Macmillan J adjourned the matter to the judicial duty list on 6 October 2015 and because the matter would be adjourned for just over a week, her Honour suspended the mother’s alternate weekend time, the time spent with the children on their birthdays and Wednesday evening telephone time until further order on the basis of her concerns as to the children’s exposure to the ongoing litigation and conflict.

9. On 6 October 2015 Bennett J adjourned the matter for hearing to 28 October 2015 for case management purposes, noting that on that date the parties would be given the opportunity to be heard on the question of whether a vexatious proceedings order should be made against either or both of them. The substantive proceedings at that stage included the mother’s application for contravention filed 12 August 2015, her application in a case filed 16 September 2015, the father’s application in a case and his application for contravention filed 28 September 2015, the mother’s initiating application filed 28 September 2015. On 21 October 2015 Benjamin J made orders in the mother’s absence dismissing the mother’s applications.

10. On 25 October 2015 the mother filed an application in which she sought orders for the reinstatement of her applications and on 28 October 2015 Bennett J heard this application. Bennett J made clear her intention to reinstate the parties to the position they were in before the various applications were dismissed by Benjamin J on 21 October 2015. Despite the various applications on foot, it seems that at that stage there was no application by the mother to reinstate her time with the children, but that was later rectified.  

11. Bennett J also heard argument about whether she should make a vexatious proceedings order and made such an order against the mother, requiring her to seek leave to file further applications.

12. On 18 December 2015 Bennett J heard the mother’s various applications, ultimately dismissing each of them. Her Honour also varied Order 4(h) made by Thornton J on 26 February 2015 for weekly telephone contact between the mother and the children. Bennett J’s varied order provided for the father to initiate a call to a telephone number provided by a family violence worker assisting the mother.

13. A more fulsome discussion of all of these issues is to be found in the reasons for judgment of Macmillan J of 23 February 2016.

14. The matter came before Macmillan J on 2 February and 12 February 2016. Her Honour was satisfied the mother’s application in a case dated 27 January 2016 seeking to reinstate her time with the children was not a vexatious proceeding and the she should be granted leave to file the application. Her Honour was not, however, satisfied that the mother should be granted leave to file an application for contravention. With appropriate directions for the filing of material, the application was adjourned for hearing in the Senior Registrar’s duty list.

15. Accordingly, the matter came before me as I was conducting the Senior Registrar’s list. The matters before me related to the mother’s application to reinstate Orders 4(a) and (g) (set out above) providing for regular alternate weekend contact with the children and time with the children on their birthdays.

16. The issue of discharge of the suspension of regular time spent between the mother and children was a matter appropriately requiring the attention of the court, particularly in circumstances where it had been acknowledged that the time that had passed since the initial suspension of the orders was not anticipated. As part of a suite of interim orders that were made between that suspension on 28 September 2015 and the matter coming before me, there was a reinstatement of the mother’s weekly phone contact with the children, and the reappointment of an Independent Children’s Lawyer.

17. Both the mother and the father were unrepresented and counsel appeared for the Independent Children’s Lawyer.

18. The mother’s submissions were garrulous and often not to the point but the essence of them was that the orders made by the trial judge in the best interests of the children after a lengthy hearing, provided for her to have time with the children each alternate weekend and on the children’s birthdays and since the children had been returned to the father there was no reason for those orders not to be reinstated and indeed, it was in the best interests of the children who had previously lived with her, that the orders be reinstated.

19. Both the father and the independent children’s lawyer opposed the reinstatement of the orders, in their original form. Some context for the father’s opposition can be found in [8] of his affidavit filed 7 March 2016 where he says:

    8.Also, on the 28 September 2015, the Department of Human Services, Child Protection received the Notice of Child Abuse, which the Mother has claimed she made and was a reason for her withholding the children. [Mr EE] of the DHS provided a report for the Court. The report was dated 26 October 2015. Annexed hereto … is a copy of the report by the DHS. I note that [the mother] in her application makes no reference to dispute the letter by DHS, given the report clearly states the children are better off with their father who provides a more stable environment free from conflict.

20. The gravamen of the report certainly supports the children being in the care of the father and concludes that there have been:

    … thirteen reports of concerns for the children made to Child Protection between August 2012 and the present (September 2015). Information obtained during the current report does not indicate that there is a need for further protective intervention by Child Protection whilst the children remain in the primary care of [the father].

    However, given the significant protective history as outlined in this letter, particularly in relation to concerns regarding [the mother] who has previously been assessed as responsible for significant emotional harm of the children it is the assessment of Child Protection that the children require a primary caregiver who can not only meet their needs by providing them with stability, routine and boundaries, but the children also need a primary carer who can protect them from harm (including protection from being exposed to any conflict that may exist in the relationship between [the mother and the father]).

21. Within the report it was stated that:

    Contact occurred with the school and it was confirmed that the children were now residing in the primary care of [the father], with the children seeing [the mother] every second weekend. Of note were the school’s observations of significant and positive changes in the children’s well-being and development since being in the primary care of [the father]. The children were described as happy, settled and healthy…

22. The father deposed to the arrangements for the children and in particular their progress, emotionally, socially and scholastically, since they had been in his primary care. He reported significant anxiety by the children prior to phone conversations with their mother and concluded:

    21.In speaking with the children myself, they say they would like to see their Mother but their anxiety regarding her behaviour and the history of the type of phone conversations they have had makes this a very difficult decision. I would like the children to see their Mother, that their Mother supports them and respects them in a positive manner and not be abusive and negative about their schooling or emotional and physical needs. The only way I can see this happening is via the recommendations made in Ms FF’s report.

23. Ms FF is the psychologist who has been providing the child C with psychological counselling and who filed an affidavit in the proceedings. She made a number of comments as to what she had been told about the diagnosis of the mother by Dr H who had been one of the expert’s at trial to which the mother made exception. I do not take any of those comments into account.  But the relevant parts of her affidavit that I take into account for the purpose of these proceedings are as follows:

    7.Information shared by [C’s] mother during telephone conversations is reported by [C] to be centred on several topics (a) her online forum relating to relationship separation matters that makes [C] feel uncomfortable due to her love of her father; (b) queries into her father and brother’s life which again creates an emotional double bind for [C] as she want[s] to love and respect both her parents, not feel as “if I’m a spy on them”.

    8.Anticipatory anxiety pertaining to her mother’s weekly phone calls had developed to a level that [C] was showing physical symptoms of stress on the days preceding the calls. Crying periods, rapid cycling thoughts, a racing heart and anger was present. Anxiety intrusions was also affecting everyday life in a heighted [sic] way. For example, feeling overwhelmed in crowds.

    9.According to the [C], she has not spoken to her mother in the new year and although she continues to feel anxious as the call is placed to her mother every Wednesday at 6pm, her anxiety quickly dissipates when there is now answer.

    10.Currently, [C] has settled well at school and has adapted to her new home environment. Assessment shows anxiety levels have decreased significantly and there is a higher level of optimistic thinking and greater social cohesion.  

24. Ms FF recommended that there be a reunification of the children with their mother subject to a number of caveats. Those caveats were:

    ·The children’s mother attend a period of therapy and/or psychological education;

    ·Phone contact with the children be reduced to a fortnightly basis or suspended in the short term to allow the mother time to re-establish a child focused approach during the calls;

    ·Supervised contact with the children be established on a fortnightly basis in a stepwise progression to alternate weekend contact visits when the psychological welfare of the children can be reasonably predicted on the basis of successful supervised visits.

25. The father and the independent children’s lawyer supported these recommendations.

26. When determining the matter I have put in place two steps. The first is to order pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) that the children attend an appointment with a family consultant for an assessment. The purpose of this was to ascertain the views of the children as to the existing arrangements and the arrangements that might be made in the foreseeable future, including the reinstatement of the orders made by Thornton J in February 2015.

27. The children are now aged 12 and 11. Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration. The provisions of s 60CC(2) (which sets out the primary considerations in determining the child’s best interests) are particularly apposite in this case and are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence.

28. The tension here is between the children re-establishing alternate weekend contact with the mother and the need to protect them from psychological harm by exposure to the conflict that might occur if contact were reinstated in the form of the orders made by Thornton J. It is instructive to note that the mother asserted in her oral submissions that whatever happened, there would be conflict in any event.

29. Section 60CC(3) sets out a number of additional considerations but relevantly s 60CC(3)(a) provides that the court can consider:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

30. It is important, in my view, that the children at the centre of this conflict have an opportunity to express their views. Ultimately, it is for the court to determine what is in their best interests but in my view it would be disrespectful to them, as well as contrary to the strictures in the Act, not to seek their views. Of course, s 60CE does not require the child to express his or her views if they do not wish to do so.

31. The second matter was to adjourn the matter to the Senior Registrar’s duty list on 17 May 2016 at which time the s 11F assessment containing the children’s views will be available, providing the court with more information with which to consider what further orders to make.

1. In determining what orders to make I am required to consider the various matters in s 60CC which I have done, but in the end the orders must be in the best interests of the children and that is the overarching consideration. In determining that there should be no reinstatement without supervision until at least the children’s views have been ascertained, I took into account the submissions made by the mother from which it was reasonably apparent to me that the circumstances in which she had retained the children on two previous occasions might well occur again. Indeed she described what she asserted to be 46 breaches of orders by the husband. It was not clear to me whether she was asserting these were current breaches allegedly occurring since Bennett J dismissed her applications for contravention, or whether they pre-dated that.  In either case as contraventions were in part at least the asserted reason for her to retain the children in September 2015, there is reason to think from her current presentation that she could repeat this behaviour potentially causing psychological harm to the children embroiled in the cycle of conflict.

2. Orders for supervised contact are, I accept, in the children’s best interests, as indeed the father accepted on the advice of Ms FF. Whether or not that contact occurs remains to some degree in the hands of the mother. I accept that there may be difficulty in obtaining a place in a contact centre which does not require the payment of a fee. The orders acknowledge this by permitting the mother to engage a private supervisor at her expense.

3. The mother argued that she had no funds from which such payment could be made and informed that court that it would not therefore happen. I am far from convinced that she does not have funds, notwithstanding that she informed the court that the $340,000 or thereabouts she received in the last few months from the sale of the former matrimonial home had been utilised in legal fees and other payments. I was not prepared to require the father to make this payment because he is supporting the children fully without any contribution by the mother. I accept that the mother does not have employment and is reliant on a pension, but I am not persuaded that she could not find the means to pay for supervised contact if she wished to do so.

4. Other orders simply provide for accounting between the parties relating to the sale of garages which was also the subject of the father’s application before me, and which will also be adjourned to 17 May 2016, if necessary.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant delivered on 30 March 2016.

Associate:

Date: 30 March 2016