PITMAN & HYNES

[2015] FCCA 1709

FEDERAL CIRCUIT COURT OF AUSTRALIA

PITMAN & HYNES [2015] FCCA 1709

Catchwords:
FAMILY LAW – Children – interim parenting orders – entrenched opposition by children to spend time with father – failure to comply with orders.

Legislation:  
Family Law Act1975, s.65L

Federal Circuit Court Rules 2001, r.8.02

Applicant: MS PITMAN

Respondent: MR HYNES

File Number: WOC 772 of 2011

Judgment of: Judge Lapthorn

Hearing date: 18 June 2015

Date of Last Submission: 18 June 2015

Delivered at: Brisbane

Delivered on: 18 June 2015

REPRESENTATION

The Applicant Appearing in person

Solicitor for the Respondent: Harrington Family Lawyers

Solicitor for the Independent Children’s Lawyer: Carter Farquar Mediation & Family Law

ORDERS UNTIL FURTHER ORDER:

1. That the mother have sole parental responsibilities for the children, [X] born [omitted] 2003 and [Y] born [omitted] 2004 ("the children"). 

2. That the mother notify the father of all medical attendances of the children and keep the father informed as to the medical care being provided to the children.  

3. That Order 2 of Orders made 13 February 2015 and Order 2(c) of Orders made on 30 October 2014 be discharged. 

4. That the Respondent's Application in a Case filed 15 May 2015 be dismissed. 

5. That the all property application orders sought by the Applicant in the Amended Initiating Application filed 1 June 2015 be and are hereby dismissed. 

6. That pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Family Court of Australia at Brisbane to be listed on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Pitman & Hynes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

WOC 772 of 2011

MS PITMAN

Applicant

And

MR HYNES

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am asked today to make parenting orders in relation to two children, [X], born on [omitted] 2003, therefore 11 years of age, and [Y], born on [omitted] 2004, aged 10 years.  The applicant in the proceedings is the mother of the children, initially filing an application on 4 July 2014.  The respondent is the children’s father who filed his response on 5 September last year.

2. The matters before me today, though, arise out of the father’s Application in a Case that was filed on 15 May this year and a corresponding Application in a Case filed by the mother on 1 June this year.  For the purposes of today’s hearing, I have treated the mother’s Application in a Case as a Response to the father’s Application in a Case, given that the father’s was the first in time.  In any event, however, I have heard both matters together.

3. The father’s Application in a Case seeks the Court make orders for him to spend time with the children in, effectively, a staged-up way that would provide for a report pursuant to section 65L in relation to handovers at specific times and then, ultimately, for block periods of time over the school holiday periods. The mother’s Response effectively seeks that there be a no contact order between the children and the father. The children are represented in these proceedings and the Independent Children’s Lawyer seeks an order that would provide for some further supervised time between the children and the father in the context of a preparation of a section 65L report.

4. Because the father lives in Wollongong and the mother in Queensland, the actual time spent under the ICL’s proposal would be of a short nature on one day of each of the sessions.  The ICL proposes there be a review before this Court between the supervised sessions.  It is necessary for the purposes of this judgment to touch briefly on the background.

5. The parties commenced a relationship in 1995 and were married in 1999.  They experienced some significant difficulties and had periods of separation between 2009 and 2011.  The father commenced proceedings in 2011 and, although reports were prepared, the matter did not proceed because the parties reconciled for a period of time in mid-2012 until the very beginning of 2013.  They finally separated in January of 2013 and a divorce order was made later that year.

6. Ultimately, the mother relocated to Brisbane and filed an application for a domestic violence order in July of 2014.  She did this after the father had become aware of the location of the children and made contact with their school.  The mother then brought an application also before this Court on 4 July.  The parties have had the benefit of a child-inclusive conference before a Family Consultant.  There has now been psychiatric assessments of each of the parties and a family report prepared by Mr M.

7. The Court has made orders for the children to spend supervised time with the father but this has been problematic.  The circumstances around why this has not always occurred is in dispute.  These being interim proceedings, I am not able to make findings of fact unless the finding can be clear from some objective or independent evidence. 

8. In determining this matter, I have had regard to the documents set out in the father’s case summary document and the mother’s affidavit filed along with her Application in a Case on 1 June 2015.

9. The Court has also had the benefit of a number of documents that were tendered during today’s hearing, they being notes produced from Kindred Connect supervision service;  an email that the mother has forwarded to the Independent Children’s Lawyer and the solicitor for the father;  and documents the mother has downloaded from an Australian Government website, being the Australian Radiation Protection and Nuclear Safety Agency, as well as documents provided by the mother in relation to cell phones prepared by Environment & Human Health, Incorporated, a United States based organisation.

10. The supervisor’s notes tendered by the Independent Children’s Lawyer are quite concerning.  I wish to make it clear that these have been received into evidence by consent as a business document but it is not sworn testimony and, therefore, I will not make findings of fact in accordance with what is purported to be asserted therein.  However, if there is any truth to the assertions made therein, the Court would be very concerned as to what effect comments made by the mother in front of the children have on the ability of these children to have a relationship with the father.

11. As I said, I am not making that as a positive finding; only that, if found to be accurate, these would be of significant concern.  By way of some examples, it is recorded that the mother has said to the children in the presence of the supervisor, “Don’t let him push you around”.  “Don’t let him pressure you into” – other notation suggest the mother has been told not discuss the proceedings in front of the children, being quite difficult with the supervisors, talking about what the law states, including that the father no longer has a right to have a relationship with the children.

12. The psychiatric assessment of the parties would seem to indicate that Dr R had no concerns in relation to the father’s presentation and found that he did not represent with any clinical disorder or other condition, no personality disorder, and that his global assessment level of functioning was said to be good.  He noted though that the father was extremely frustrated and distressed at the lack of contact with his children and he was of the strong view that Ms Pitman actively encouraged the children to refuse time with him and that she constantly denigrated him to the children.

13. The psychiatrist formed the view that the father was of sound mind and capable of having an ongoing and loving relationship with the children.  The assessment done in relation to the mother was that she did not have any clinical disorder but did have some obsessional traits.  She did not have a personality disorder and that her global assessment level of functioning was good.  He did, however, comment that she may have significant issues in relation to the issues that are before the court.  The doctor appears to have relied on the notes provided from the supervisors in coming to that conclusion.  He did spend some time reviewing those notes. 

14. After considering the material that has been before the Court, Dr R concluded that there were concerns that the mother may have been influencing the children with regard to not wanting them to have time with their father and that, from a DSM-5 perspective, the mother presented with an adjustment disorder with anxiety, with her being preoccupied with the nature of interactions between the children and the father.

15. However, she did not suffer a major depressive disorder and there was no obvious major Axis I psychiatric disturbance apart from this.  He noted that the mother was receiving some psychological assistance with a psychologist but was not under any medication.  He considered the mother to be relatively stable and capable of providing ongoing care and affection to her two children.  It should be noted, of course, that Dr R did not see the children with either parent.

16. The family report was prepared by Family Consultant Mr M.  The family consultant raised concerns about problems in organising the interview process with the mother not attending with the children when the first scheduled interviews were to take place and the father having travelled interstate to do so.  The mother informed Mr M she had not received the correspondence or phone messages about her attendance.  He then went on to note that, irrespective of letters sent to the mother on 4 June scheduling further appointments to occur on 15 June wherein the mother was to bring a supervisor for the children, she attended without a supervisor for the children.

17. It transpired during that report process that the children were not observed with the father.  The family report noticed that both children had expressive language beyond their peers.  The mother informs the Court from the bar table that they have been found to be gifted students.  The child, [X], appeared to at times struggle to withhold tears during his interview.  He described his father by the name [first name omitted] rather than dad or father and, when asked why, his response was, “because I don’t consider him a fatherly figure.”

18. He went on to say that “I miss having a father” and about his father, he said, “He is possessive, he doesn’t like losing what is his.”  He said that he has tried to reason with his father and “I’ve tried to ask him to admit to what he has done, he has assaulted my mother and attacked her.”  He went on to say that his mum thinks he is a bad person.  He went on to say that his grandfather had bashed his mother.  He was referring to the paternal grandfather.

19. He went on to say that his mother does not like Dad.  She has voiced it often.  She just usually swears in frustration.  The swearing was along the lines of “just normal shit we need to go through because of your father”.  His mother calls his father “a horrible man and a nasty person” and that he did not talk to his sister about his father.  He said that, in relation to a phone conversation he had with his father.  He had prepared them and written down questions and he said that his mother did not influence those questions.  I do not intend, given this matter is in a busy duty list, to detail all of the facts surrounding that telephone conversation.

20. He went on, though, to say that his mother is always telling them – meaning both he and his sister – that it is their right to see their father or not to see him.  He is reported to have said she has showed them the laws that tell them so.  He described these laws like “the child protection laws in court”, which said “we don’t want to see him, it is our choice in the law.”  His mother looked up sections of the law on the internet and showed them.  The report writer at paragraph 42 said:

    [X] was staunch that he would not see his father.  When I commented on his teariness in parts of the interviews when mentioning the loss of his father and addressing this, [X] denied vehemently that this suggested that he might have mixed feelings about it.

21. The report writer then assessed his interview with [Y].  She is reportedly saying that the father made her feel bad and things like that and she can tell that he is lying.

    I don’t think he’s a very good person.  Mum doesn’t like Dad because he has abused her in the past and when she goes to tell someone, he lies to get out of trouble, and so that is why I think Mum doesn’t like him and also she has seen him do a bunch of things to [X] and myself.

    She said, “He yells at us and he hits us.”

22. She said that her mother has told them it is okay to see him but “we had still not made up our minds”. She said that her father had sworn at them about their mother and called her a name. The report writer had discussions with the mother and that she said that she may have shown the children some aspect of the Family Law Act but she is not sure whether she had just told them about it or shown it to them. From the bar table, the mother tells me today the children, who are very intelligent, looked up the law and that she is honest in her conversations with them.

23. The report writer notes at paragraph 54:

    Ms Pitman insists that it is entirely the children’s choice about seeing their father and that the court cannot make them do otherwise.

    The report writer was clearly of the view that the mother has influenced the children.  In particular, he was critical of the mother being involved in directing [X] in relation to the phone call that I mentioned earlier on and that she taped that phone call. 

24. The report writer had certainly formed the view that the mother had an apparent inability to comply with Court orders and that she had, to him, made the case – and, firstly, to the children – that their views have to be heard and that any Court order is secondary.  The mother, of course, asserted today that she has complied with Court orders to the best of her ability.  The father would not accept that assertion from the mother.  Ultimately, that will become a question of fact to be determined at a final hearing.

25. The family consultant formed the view that the mother’s denigration of the father was unrelenting, that she enmeshed the children’s memories with hers,:

    her boundaries with the children are so diffuse as to be non-existent, and it would be presumed that this report, and anything that occurs in Court would be freely shared with them.  The damage done to the children’s relationship with their father here has been significant.  I am of the view they are emotionally conflicted, and their unilateral aversion is probably the easiest path for them, given Ms Pitman’s voracious opposition to that relationship based on her presentation for these interviews and indications of her presence within their own accounts and views.

26. The family consultant said the mother “shows no regard for Court orders and it is unlikely that she will ever do so”.  Those are very strong words from Mr M.  It should be noted that this family report has not been challenged.  This matter has proceeded on the papers only and therefore I am not able to make any findings as to whether the conclusions reached by the family report writer are correct.  However, it is important to note that the family report writer concluded his report as follows:

    It is not possible to see the children with their father on the day, they were staunchly adverse to it and were prepared prior.  It may have been possible to apply some pressure on them to see him, but it would only have been at an emotional cost, and probably would not have allowed any interview of them as such afterwards.

    Seemingly, their relationship with their father can only occur in the absence of their mother, either through a change of care or some miracle of insight by her.

27. It is important when determining the best interests of the children to be cognisant of the reality for these children, no matter how that reality may have been formed.

28. The father’s application, in effect, seeks to force the issue and I do not make that description by way of criticism.  There is much merit in the father’s application that if I am to accede to the mother’s application, then there is a real risk that these children will either further align with her or become further independently entrenched in their opposition to having time with their father.  There is, however, the countervailing concern of any emotional harm to these children, should they be forced to spend time with the father in the context of their current reality.  The mother would certainly urge that upon me.  The Independent Children’s Lawyer is supportive of the children being ordered to spend time with the father but in a more controlled environment to that which he seeks.

29. When I weigh up the three options that have been presented to the Court by the parties and Independent Children’s Lawyer, I have come to the view that, at least at the interim, more harm could be done to these children if they were forced to spend time with their father at this point in time.  That should, in no way, be interpreted as accepting the children’s views as they are stated to be or the mother’s position in that regard, but rather the reality for these children.

30. There has been a number of problems in having compliance with Court orders.  I have no confidence, whatever order I make, that there will be compliance with them, but that the consequence of it could be that these children, and particularly [X], could become further embroiled in the stressful situation.  Mr M proffered the opinion that aversion to spending time with their father might be the least damaging way for the children to handle the current situation:

    The damage done to the children’s relationship with their father here has been significant.  I am of the view they are emotionally conflicted, and their unilateral aversion is probably the easiest path form them, given Ms Pitman’s voracious opposition to that relationship based on her presentation for these interviews and indications of her presence within their own accounts and views.

31. My concern is, if I was to order the children to spend time with their father, then any chance of ultimately improving the children’s relationship with him may be completely eroded.  That is not to say, though, after a contested hearing, the Court might come to a different view.  There are so many factual issues that need to be tested and the Court will be in a better position at a final hearing.  Mr M said that one of the options was that there be a change of care.

32. The father, to his credit, has not filed an amended response seeking a change of residence to date.  Certainly, at this interim stage, it would have been very difficult for him to argue.  However, I am informed from the bar table that he does intend to amend his response to seek a change of residence.  It is important, when this matter is ultimately determined, that all options are available to the Court and, in that sense, it is good that the father has given that indication now so that all parties understand what might be the ultimate options available to the Court.  The mother, of course, as one would expect, would oppose a change of the primary residence of the children and it is to be noted that she has been their primary carer all of their lives.

33. Because the children’s relationship with the father is currently damaged and the mother has been their primary carer, I propose to maintain the order that was made on 13 February 2015 that the children live with the mother.  I do not propose to make any orders for the children to spend time with the father.  I will not however make positive orders about the father not contacting the children, nor him spending any physical time with the children.

34. I do not have sufficient evidence before me to arrive at the view that it is in their best interest for him to be completely excluded from their lives.  Having said that though, some very recent and alarming events have occurred and that is that [X] has been experiencing significant health difficulties.  The mother informs the Court that these are of the nature of seizures and that he has been taken to hospital on at least five occasions in the last six weeks;  three via emergency ambulance and two from which she has taken him.

1. She says that these events have occurred around the times when this child has been stressed about spending time or communicating with the father and invites the Court to accept that this is as a consequence of the stress that [X], in particular, experiences in relation to the father wanting to have a relationship with him.  I am not able to accept the mother’s submission in that regard today because I just do not have enough evidence.  The Court will, no doubt, benefit from medical records being provided to the Court in due course and will be in a much better position to determine that then.

2. For those reasons, I will dismiss the father’s Application in a Case and, in relation to the mother’s Application in a Case, I do not need to make an order because I have already made an interim order for the child to live with her.  The mother did seek an order that she have sole parental responsibility for the children.  Ordinarily in parenting proceedings, the presumption of equal shared parental responsibility applies.  However, in this case, I am satisfied that it is rebutted.  The parents are just not able to communicate effectively and, unfortunate as it is, even though in interim proceedings the Court should apply the presumption, I am concerned that if I was to order equal shared parental responsibility, these parties would be at further wars in the future.

3. I therefore propose to order that the mother have sole parental responsibility for the children in the interim.  However, she is required by order to notify the father of all medical attendances of both children and to keep him informed as to the medical care being provided to the children.

4. I turn now to consider the best way forward.  Ideally, this matter would be afforded a final hearing as soon as possible.  I consider this matter to be urgent in that the longer these children do not see the father, as was urged upon me by Mr Taylor, the greater the risk that their relationship will not improve.  Of course, the opposite could be the case and that, over time, the children may gravitate to their father.  We simply do not know at the moment.  Regrettably though, in my own docket, I have no space this year and, indeed, until after March of next year for an urgent hearing, as all other matters currently listed have priority.  I have attempted to obtain assistance within the Federal Circuit Court but all judges’ resources are currently stretched.

5. In any event, I have no confidence that this matter can be confined to four days or less.  There will be a number of witnesses necessary, particularly now that this will become a contested residence case.  There will be each of the parties, the family consultant, Ms R, who first saw the children, Mr M, Dr R, the supervisors from Kindred Connect, [X]’s school, particularly in relation to the alleged seizures that are said to have occurred at the school, and possibly medical evidence from any treating medical practitioner for [X], in particular.  It might also be necessary for the mother’s psychologist to be called.

6. When I consider all of those witnesses, plus any other witnesses the parties may call, and allowing time for submissions, noting also that the mother is not legally represented – no criticism of the mother in that regard but that it may take her longer to present a case than if she was legally represented – I would have no confidence that this matter could even be contained within four days and it is likely to take five.  Whilst the matter might not be said to be complex, per se, it has elements of complexity and when I weigh all those factors together, I am satisfied that this matter should be transferred to the Family Court of Australia.

7. That Court, of course, has similar resource difficulties that the Federal Circuit Court faces.  It is open to a party or the Independent Children’s Lawyer to bring an application before that Court for expedition and that will be a matter for that party. 

8. My orders made on 30 October 2014 provided for the children to have ongoing telephone time with the father.  This has been extremely problematic.  The solicitor for the father, quite correctly, in my respectful view, did not press for ongoing telephone time and I propose to discharge that order in order to reduce further aspects of that conflict.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate: 

Date:  16 July 2015