Pincher and Hinze

[2009] FamCA 791

FAMILY COURT OF AUSTRALIA

PINCHER & HINZE [2009] FamCA 791

FAMILY LAW – CHILDREN – With whom a child spends time

C v C (1996) FLC 92-651

Goode v Goode (2006) FLC 93-286

APPLICANT: Mr Pincher

RESPONDENT: Ms Hinze

INDEPENDENT CHILDREN’S LAWYER: Ms S. E. Cleland

FILE NUMBER: BRC 1168 of 2009

DATE DELIVERED: 10 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 10 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Moreton Bay Law

COUNSEL FOR THE RESPONDENT: Mr R. Salehkon

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Service

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Gill & Lane Solicitors

Orders

IT IS ORDERED THAT

1. The Application for Final Orders filed on 11 February 2009 be set down for a First Day of Hearing at 11.30am on 16 November 2009 in the Brisbane Registry of the Family Court of Australia and the applicant shall pay the hearing fee 7 days prior to 16 November 2009 unless a waiver of the fee is obtained beforehand.

2. The Directions Hearing listed for 13 August 2009 be vacated.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child … born … February 2006 spend time with the Father at all times as agreed between the parties and failing agreement as follows:-

   a)On 29^th August 2009, 30^th August 2009, 26^th September 2009, 27^th September 2009, 24^th October 2009 and 25^th October 2009 for a period of up to three hours to take place supervised at the W Contact Centre;

   b)On 12^th September 2009, 13^th September 2009, 10^th October 2009, 11^th October 2009, 7^th November 20009 and 8^th November 2009 for a period of up to three hours with changeovers to take place at C Park with the Mother’s relatives J Hinze and/or L Hinze to facilitate the changeovers and further with the time on Saturdays to take place from 1.00pm to 4.00pm and the time of Sundays to take place from 9.00am to 12 noon.

2. Changeovers:

   a)For the purpose of Order 3(b) herein, changeovers shall take place at C Park. Neither the Mother nor the Maternal Grandmother shall be present at the changeovers;

   b)All other changeovers shall take place at the W Contact Centre.

3. For the purpose of Order 3(a) herein:-

   a)The costs of the Contact Centre shall be shared equally between the Mother and the Father;

   b)The parties shall contact the W Contact Centre by no later than 5.00pm Friday 14^th August 2009 to arrange for their intake interviews;

   c)The parties shall sign all documents and take whatever steps are necessary to comply with any requirements of the W Contact Centre in order for the times set out in 3(a) to take place.

4. The Father shall have telephone contact with the child on Tuesdays and Thursdays from 6.00pm to 6.30pm with all calls to be initiated by the Father and all costs to be borne by him.

5. The parties shall return their completed questionnaires to the Independent Children’s Lawyer within seven days.

6. The Independent Children’s Lawyer shall have leave to issue Subpoena and file same within fourteen days.

7. The Independent Children’s Lawyer shall notify the parties in writing of the details of the Family Report interviews to take place on the 16^th October 2009 within fourteen days.

8. The Mother shall ensure that the child is brought to the said Family Report interviews on the 16^th October 2009 as directed by the Independent Children’s Lawyer.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 NOTED that publication of this judgment under the pseudonym Pincher & Hinze is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1168 of 2009

MR PINCHER

Applicant

And

MS HINZE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter was transferred to this court by order of Burnett FM some time ago.  Unfortunately, it seems his Honour was unable to deal with the then current interim application and that matter, too, has been adjourned to this court. 

2. The result of that is that there has been an increase in the delay in the amount of time that the father in these proceedings has not seen his tiny child.  That is extremely unfortunate. 

3. Consequent upon the transfer of this matter to this court, this matter became subject to the court’s Child Responsive Program.  As a result, the father and child saw Ms D, a family consultant attached to the Registry of this court, and Ms D subsequently prepared a Children and Parent Issues Assessment Report dated 5 August 2009.

4. The child the subject of these parenting proceedings is a son, born in February 2006.  Accordingly, the child is currently aged about 3½.  At the time the parties separated some 15 months ago, he was just over two. 

5. In the intervening 15 months the child has seen his father for a total of approximately one hour. 

6. The Principles, Objects and Considerations relevant to the determination in interim proceedings are set out in the Act.  The decision of the Full Court in Goode & Goode has made clear the approach of this court on applications for interim orders.  The process conducted by this court on interim applications is a curtailed one.  The principles applicable to those curtailed proceedings were set out in Ciabo & Ciabo, reported as C & C, and, in the post-Reform Act setting, in the decision of the Full Court in Goode & Goode to which I have just referred.

7. Significantly, proceedings conducted in this list cannot be determined by reference to findings made after a proper testing of the evidence and an analysis of that evidence and the evidence of the parties and their witnesses after exposure to cross-examination at a trial.  The proceedings are truncated and the difficulties inherent in arriving at orders in respect of the best interests of the children are made all the more difficult.

8. In this particular case, a number of allegations are made by the mother, all of which are denied by the father.  They revolve around issues of family violence and the use of drugs. 

9. The father says, through his solicitor, that he will seek to put evidence before the court denying all of those assertions.  The resolution of matters which potentially have serious ramifications for findings about the best interests of the child must await a trial.

10. The court is assisted by the Children and Parent Issues Assessment Report prepared by Ms D. 

11. Significantly, as it seems to me, Ms D does not identify the issue of family violence as being a particularly acute issue within the dynamics of this family. 

12. Additionally, it is worthy of note, as it seems to me (as submitted by the Independent Children’s Lawyer) that there is no independent evidence before me of domestic violence;  there has been no application made for a domestic violence order;  there is no evidence that the relevant state authorities responsible for child safety have intervened within this family, nor is there any evidence before me that there has been any police intervention within this family.

13. It is also true to say, as submitted by the Independent Children’s Lawyer, that there is no independent evidence of abuse or risk to the child presented by his father. 

14. In saying that, I have not ignored the fact that the mother makes assertions as to those matters.  Equally, though, I have not ignored the fact that the father denies each of those matters.

15. What Ms D does identify as significant issues in this family are the capacity of the parents to share decisions and communicate about issues affecting the child, which, in turn, hinders their co-parenting abilities. 

16. She also sees the influence of others in the parents’ lives in relation to their co-parenting of the child as an issue, and especially the influence of the mother’s mother, Ms L.

17. Furthermore, the respective parents’ lack of trust and respect for each other and the impact this has on the child is also identified by Ms D as being a significant issue.  As part of her assessment of the child, Ms D observed:

    He appeared to engage more readily with his maternal grandmother whilst his mother held back.  I asked [the mother] if [the child] would like to go into the child care facility while we had our interview, [the mother’s mother] Ms [L] intervened and stated that he would be staying with her.  Ms [L] presented as aggressive and challenging in her tone and presentation.

18. It is a matter of considerable significance, as it seems to me, that the father has seen his son for but one hour in the past 18 months. 

19. The Act makes it abundantly clear that the child has a right to have both his parents participate in his co-parenting, despite the fact that they have separated.  Moreover, the Act makes it abundantly clear, as one of its central Objects and Principles that the child has a right to have a meaningful relationship with each of his parents to the extent that it is consistent with his best interests.

20. It seems to me, on the evidence before me, that spending one hour with his father does not satisfy either of those relevant considerations. 

21. Certainly, I can see no evidence on an interim basis – and I emphasise on an interim basis – that might justify that position.  Having said that, it is necessary to accept that the geographic location of each of the parents does not assist them in having a regular, meaningful co-parenting relationship in respect of the child:  the father lives in G;  the mother lives with the child in C.  I am told the distance between the two places is approximately 650 kilometres and involves a seven-and-a-half hour car journey.

22. Of considerable significance, as it seems to me, in these interim proceedings is the opinion of the family consultant, Ms D, that:

    [The mother] states that she wants [the child’s] father to play a “large role” in her son’s life and that they have a relationship. However, she has demonstrated this to be the opposite.  [The mother] reported that she did not have a father growing up, and wants her son to enjoy a good relationship with his father.

23. Ms D goes on to talk about the assertions made by the mother in respect of the father and, in particular, records the mother being concerned for the child’s safety “due to his father’s lack of parenting experience and his father’s partner being present when the child spend times with his father.”  The example given to justify this apparent general expression directed towards the father was one instance that the mother could remember where she alleges the father left the child alone in the bathtub, with the consequence that the child cut himself on a razor.

24. In the context of parental capacity, which is one of the considerations that must be taken into account, albeit in a significantly curtailed way in the instant proceedings, Ms D comments:

    [The mother] consistently used the term “we want,” “we would like.”  When asked to clarify these, she stated “I, I mean me,” however, in some contexts this did not make some sense.  I was of the opinion that [the mother] was speaking of herself and her mother, Ms [L].  Further to this, [the mother] stated that she takes her son to his grandmother’s every day as “he asks to see her.”  [The mother] presents as confident in her parenting.  However, at times, this was thought to be a façade, as she appears to rely on her mother for guidance in regard to her parenting.

25. Having identified the issues just described, Ms D goes on to make observations in respect of the child and his interrelationship with his father, with whom he had not had meaningful contact for, at the time of interview, some 15 months. 

26. I am very concerned about statements recorded by Ms D, in the report to which I have just referred, that:

    [The mother’s] mother questioned the family consultant about her need to speak with the child and further challenged the court’s authority in this regard.  The report writer observed [the maternal grandmother] to be aggressive and to behave like this in front of the child, which appears to be congruent with what [the father] was saying.  In addition, [the mother] was observed to not address her mother or her mother’s behaviour and appeared almost frightened to intervene.

27. The understandable caution with which Ms D and the Independent Children’s Lawyer approach the issue of the orders which are in the child’s best interests pending this matter coming back before the court on 16 November 2009 are primarily, as it seems to me, directed towards the fact that this young boy has not seen his father for a lengthy period of time and the relationship between the two of them therefore needs to, as it were, re-establish. 

28. It is for those reasons, primarily, that the Independent Children’s Lawyer submits what might be seen as a graded introduction to time.

29. The Independent Children’s Lawyer does not contend that time between the child and his father should be supervised in its entirety.  In lieu, she proposes what she described as a hybrid, which involves some supervised time at the W Contact Centre and some unsupervised time at a park in C. 

30. Those proposals by her would see each of the parties doing some significant travelling, but the child doing less travelling than either of his parents.

31. Those proposals also foresee two people who are each known to the parties as supervising the changeover time between the father and mother.  That recommendation is in accordance with that made by Ms D who recommends that should occur, but that someone other than the maternal grandmother effect that changeover. 

32. At the conclusion of her report, Ms D says that:  “The court may consider that contact be supervised initially …”.  Contrary to that which was initially asserted by the solicitor for the mother, that is not, as it seems to me, a recommendation that supervision should occur (even if, indeed, a recommendation need necessarily be acted upon by the court, which, clearly enough, it does not). 

33. It seems to me that the evidence before me is not such as to justify a need for supervision, save on the basis that, in the early stages, the concerns expressed by the family consultant can be monitored and the child be given the opportunity to get to know his father again within a safe and secure environment.

34. It seems to me to be in the child’s best interests that he spend time with his father but that the time not be supervised save in the manner to which I have just referred. 

35. In order to take account of that eventuality, the Independent Children’s Lawyer proposes that time between the father and the child occur on specified days on weekends in August, September and October, at the W Contact Centre, and for time to occur on other specified weekends during that period at a park in C.  Each of those contact times are expressed to be for a period of three hours.

36. The proposal is made by the Independent Children’s Lawyer (and in this respect supported by the father and the mother) suggests in terms that the C time should occur only at the park.  I see no reason why time with the father should be restricted to that place. 

37. C is, of course, a small place, but it seems to me that the father should not be restricted to a park for a period of three hours, which is a lengthy period of time for a three and a half year old child, and he should have the capacity to take the child to other places for picnics and those sorts of usual activities.

38. Some agreement was reached between the parties after the matter had been stood down.  The real issues between the parties boiled down, in essence, to three. 

39. The first is that the proposed time at the contact centre in W, which, it is to be noted, involves the mother in doing some travelling, should be the second weekend in the sequence, with the first weekend taking place in C. 

40. I note in that respect that a fundamentally important issue for this court, as identified in the report by Ms D, is the extent to which the mother’s actions support her words that she is in favour of the child spending a meaningful relationship with his father to the extent that that is consistent with his best interests.

41. She can show her sincerity in the first instance by facilitating the first of the equal amounts of travel that each of the parties will undertake pursuant to these orders.  Accordingly, I favour the proposal of the Independent Children’s Lawyer as to the placement of the time between the father and the children over that proposed by the mother. 

42. The issue of supervision has already been referred to.  The Independent Children’s Lawyer proposes that only the changeovers be supervised; the mother asserts that the whole of the time should be supervised.

43. As already indicated, it seems to me sensible that some of the time take place at the W Contact Centre, for the reasons I have identified.  For the reasons earlier given, I do not see any reason why the time at C should be supervised, save for the changeover which should be supervised by reason of what Ms D identifies as the significant overt hostility between the parties. 

44. The remaining issue live between the parties is a contention by the mother that, in respect of the time that the child spends with his father, there should be a restriction placed upon three named individuals.  Those individuals are the father’s current partner, her sister and her mother. 

45. The stated reason is that the material of the mother reveals that the father’s current partner “trashed the house” and engaged in inappropriate antisocial behaviour in front of the child.  This, too, is a disputed allegation, as I gather. 

46. It seems to me that, from an overview of the material, Ms H and her family are to be a part of the father’s life in to the future and I see no reason, on the material before me, to restrict time the father should otherwise spend with the child by preventing those three named individuals forming part of it.

47. In that respect, one of the principal aims of orders for time made by this court consistent with the legislative mandates is that the co-parenting relationship of the child post-separation should “normalise” as much as possible, and it seems to me that that object is achieved by not making the orders sought by the husband. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  31 August 2009