Rand and Tercel

[2013] FamCA 1031

FAMILY COURT OF AUSTRALIA

RAND & TERCEL [2013] FamCA 1031

FAMILY LAW – PARENTING – variation of orders – contravention – nomination of Family Consultant

Family Law Act 1975 (Cth)

APPLICANT: Mr Rand

RESPONDENT: Ms Tercel

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 8050 of 2007

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carmody

SOLICITOR FOR THE APPLICANT: Raniga Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Lutvey, G D Lawyers

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER

1. That the Order made 21 January 2013 be varied as follows:

   (a)by inserting as Clause 46: “That the time the child spends with the father and the communication the child has with the father shall only occur at the child’s instigation.”

   (b)by deleting Clauses 37, 38 and 39 and replacing them with the following: 

   “37. That in the event that the mother wishes to obtain an Australian passport for the child, she shall provide a completed and signed passport application (“the application”) to the father for his signature.

   38. That within twenty-eight (28) days of receiving the application, the father shall sign the same where indicated and return it to the mother.

   39. That should the Father refuse or neglect to sign the application within 28 days of its provision to him by the mother, a Registrar of the Family Court of Australia at Brisbane is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign the application in the name of the father and to do all acts and things necessary to ensure that the application is validly executed on behalf of the Father.”

2. That upon the occurrence of the meeting between the child B, born … 1999 and the father referred to in Clause 3 of this Order, the Application for Contravention, filed 4 July 2013, will be treated as withdrawn.

IT IS ORDERED BY WAY OF FINAL ORDER

1. That pursuant to s 65L of the Family Law Act 1975 (Cth) a Family Consultant nominated by the Senior Family Consultant, Brisbane Registry, shall facilitate and supervise one meeting between the child B, born … 1999 (“the child”), for the purpose of providing the child with an opportunity to understand that his time and communication with the father shall now occur as he determines.

2. That pursuant to s11F(1)(b) of the Family Law Act 1975 (Cth) the mother arrange for the child to attend the appointment with a Family Consultant on a date and at a time to be advised.

3. That by way of implementation of Clause 18 of the Order made 21 January 2013, the father, via his solicitors, forthwith provide Dr C with the following:

   (a)a copy of the Order made 21 January 2013;

   (b)a copy of the reports of Dr D;

   (c)a copy of this Order and the Reasons for Judgment delivered.

AND 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

IT IS NOTED

1. The Court requests that, given her previous involvement in the matter, the Senior Family Consultant, Brisbane Registry give consideration to allocating Ms E as the Family Consultant to facilitate the meeting between the child and the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rand & Tercel 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 BRISBANE

FILE NUMBER: BRC 8050 of 2007

Mr Rand

Applicant

And

Ms Tercel

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me initially by way of Application for Contravention filed by the father on 4 July 2013.  The orders alleged to have been contravened are those that were made by consent in January of this year, and they relate to the child of the parties, the child, who is soon to be 14 years of age.  When the matter first came before me, the parties agreed that an Order be made for a Family Consultant to speak with the child.  That occurred on 12 December 2013, and, following that, the Family Consultant prepared a Memorandum to Court which is Exhibit 1 in the proceedings. 

2. It is clear from a perusal of Exhibit 1 that the child has expressed certain views in terms of his interaction and ongoing time and communication with the father.  The parties are, I suspect – consistent with what Exhibit 1 tells me – likely to be in significant disagreement about the cause of the child expressing such views.  In any event, when the matter came before me this morning for its further consideration, Counsel who appears for the father informed the Court that, following a perusal and consideration of the contents of the Memorandum prepared by the Family Consultant, the father has determined to request that an amendment be made to the terms of the Order made in January of this year so as to provide that any time or communication between the child and the father occur only at the child’s instigation. 

3. Counsel for the father further sought an order, which I anticipate is pursuant to section 65L of the Act, that the Family Consultant who met with the child and prepared the Memorandum to Court facilitate a meeting between the child and the father for the purpose of providing an opportunity for the child to understand that his time with the father shall occur in the manner that he determines and that the father has heard, respected and acted to meet the stress which, from a perusal of Exhibit 1, the child identifies as flowing from an inability to choose what he “does with his life.”

4. The mother’s position in relation to the facilitated and supervised meeting between the child and the father is that she does not oppose it occurring if it is in accordance with the child’s wishes. 

5. I consider – given the contents of the Memorandum prepared by the Family Consultant and the fact that, as a consequence of the father’s recognition of the child’s views, there will be a significant change to the time and communication between them : namely, that it will only occur at the child’s instigation – that it is likely to be in the child’s best interests to have the opportunity to hear this information from the father so as to ensure that he does not wrongly leave the process with the idea that there has been, in any way, an abandonment of him by the father.  (my emphasis)

6. I consider that Ms E would be well-suited to provide clear support and guidance insofar as any discussions at that event.  It will be a one-off meeting which will bring clearly to the child’s knowledge the information that the extreme stress - which he viewed as stemming from “I can’t choose what I do with my life, which is illogical” (a comment taken from Exhibit 1) – will be brought to an end as a result of a decision taken by his father.  An Order which provides for such a meeting is in his best interests for the reasons I have outlined.

7. The father sought, through his Counsel, that an Order be made for the child to attend upon a psychiatrist, such as Dr F, for the purpose of receiving therapeutic support.  It is clear that, in January 2013, the parties agreed that the child attend upon Dr C, a psychologist: their agreement in that respect is reflected by Clause 15 to 17 of the January 2013 consent Order. 

8. The basis upon which Counsel submitted that there should be an order requiring the child to attend upon another person for the purpose of therapeutic support is that the father holds some concerns about Dr C’s capacity properly to support the child.

9. In opposition to such an order, the mother’s legal representative submitted that it would require the child to meet a “new” person and to undergo all of the things associated with engaging a new therapeutic service provider.  It was further submitted that ongoing appointments have been made for the child to attend on Dr C, consistent with the Mental Health Plan entered into late this year. 

10. I have paid close regard to these submissions.  I consider that the child’s best interests are best met by a refusal of the father’s application for an order that he attend upon another service provider for therapeutic support.

11. I arrive at that conclusion because it is clear that there has been an impact on the child of previously having been required to speak with a number of persons.  So much is made clear by reference by Ms Carmody of Counsel to the report of Mr G.  It is clear that he has engaged with Dr C and has attended on her on six occasions in the period from May 2013 to August 2013.  It is, as I’ve said, also clear that there are current appointments for him with Dr C and that his attendance upon her is intended to continue.

12. Further, it is clear that Clause 16 of the January 2013 Order remains an operative order of the Court.  

13. It does not seem to me to be in the child’s best interests to be put in a position of having to talk again to a new therapeutic support provider for the purpose of engaging and obtaining such support.  For those reasons, I decline to make the order sought by Counsel for the father. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 December 2013.

Associate:     

Date:    20 December 2013