REES & DARZI

[2018] FCCA 3480

FEDERAL CIRCUIT COURT OF AUSTRALIA

REES & DARZI [2018] FCCA 3480

Catchwords:

FAMILY LAW – Parenting – family therapy agreed – time with child to be suspended whilst that occurs.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR REES

Respondent: MS DARZI

File Number: SYC 7648 of 2017

Judgment of: Judge Henderson

Hearing date: 21 November 2018

Date of Last Submission: 21 November 2018

Delivered at: Sydney

Delivered on: 22 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Morley

Solicitors for the Applicant: Armstrong Legal

Solicitor for the Applicant: Ms Tomasetti

Solicitors for the Respondent: Rafton Family Lawyers

Solicitor for the Independent Children's Lawyer: Ms Morton

Solicitors for the Independent Children's Lawyer: Morton Family Lawyers

ORDERS

1. Orders for time between the father and the child, [X] born on [date] 2010, be suspended.

2. Order 1 of these orders do not prohibit [X] and the father spending time recommended by [Dr A] or as agreed.

3. All extant applications be adjourned to 12 April 2019 at 9:30am for mention.

4. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the adjourned date will not be heard on that date without the express leave of Judge Harper, however directions in respect of that Application or Objection may be given.

THE COURT NOTES THAT:

1. The parties are engaging in Family Therapy with [Dr A].

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7648 of 2017

MR REES

Applicant

And

MS DARZI

Respondent

REASONS FOR JUDGMENT

1. The matter of Rees & Darzi, is an application by a mother to suspend supervised time with the father and their child, [X], whilst family therapy with [Dr A] is undertaken.

2. The Independent Children’s Lawyer proposed a form of an increase in time being some unsupervised time, daytime only. The father agrees with the application put forward by the Independent Children’s Lawyer.

3. I indicated supervised time had to remain at this time, for the protection of the father, and given [X]’s at best ambivalent, and perhaps tenuous, relationship with her father.

4. Mr Morley of Counsel represented the mother. Ms Tomasetti, solicitor, for the father and Ms Morton, solicitor, is the Independent Children’s Lawyer.

5. The evidence I read was as follows:

   a)for the mother:

   i)her response, filed 19 January 2018, and notice of risk;

   ii)her affidavit of the same date;

   iii)affidavit of 7 November 2018; and

   iv)affidavit of her mother, [Ms B], 7 November 2018.

   b)for the father:

   i)his initiating application for final orders, filed 16 November 2017;

   ii)interim orders, 16 November 2017;

   iii)affidavit of himself.

   c)the extensive reports from Phoenix Rising attached to the parties’ affidavits, and

   d)the child dispute memorandum, dated 30 April 2018.

   I heard submissions from both parties, and read case outlines that were prepared.

6. Now, the notes of the contact centre – and contact is being carried out by Phoenix Rising – show [X]’s ambivalence in her relationship with her dad. At times, she is smiling and happy to engage with the father, telling another child, for example, “He is my dad.” At other times, she is sullen, confused, and rude to her father, and expresses a wish consistently to go home and leave the venue.

7. It is clear the mother has extreme difficulty supporting [X]’s relationship with her father, given her concerning history, as reported by her in the child dispute memorandum and in her own affidavit, of his physical, verbal and financial abuse of her, and effective disinterest in [X] in the past.

8. The very short chronology is:

   a)the parties commenced cohabitation in 2002;

   b)they were married on [date] 2006;

   c)they separated in April 2012, when [X] was two and a half;

   d)the father commenced a new relationship in [country omitted];

   e)the mother commenced a new relationship in 2012, and she and her partner commenced to live together in 2014.

9. Post separation, the father’s time with [X] was ad hoc at best, and time effectively ceased in 2014. Despite a submission to the contrary, the father took little effective action, and indeed he determined to move to [country omitted] in 2015, where he lived for two years. He returned to Australia in 2017, with his partner, and he and his partner, upon their return, went to live in the [Region A] area of New South Wales.

10. It is not surprising, in light of these facts and the mother’s allegations of the father’s poor behaviour, that the mother struggles to support a relationship for [X] with her father, particularly in any ongoing unsupervised venue. Given that the mother says he physically, emotionally and financially abused her, and effectively abandoned [X] and her for two years when he chose to live in [country omitted], and he has paid, or at least, as I am not sure about at the past, but at the moment pays, no child support.

11. However, it behoves the mother to seek professional assistance to assist her to understand the negative long-term impact upon her daughter – upon any child – who spends no time with a parent who is available, living, and wants to spend time with them, and in this case a girl with her father. What can transpire is loss of self-esteem, depression, idealisation of the absent parent, difficulty forming appropriate relationships with male relations in the future; and these are but to name but a few of the serious consequences that [X] could suffer.

12. The mother needs to seek this professional assistance to support her hitherto exemplary parenting of her daughter as a sole parent, and in particular if an order for ongoing and unsupervised time is made into the future and that is a possibility. It is, after all, under the Act[1], [X]’s right to a relationship with both her parents unless there is a risk.

    [1] Family Law Act1975 (Cth).

13. Similarly, it behoves the father to acknowledge the consequences of his decisions upon his relationship with his child’s mother and his daughter, and seek to show some understanding of the position. His affidavit gave no such comfort.

14. I do not see, on the facts before me, any real or cogent evidence of actual risk of harm to [X] from her Dad. Rather, the risk is the impact on [X], and [X]’s emotional functioning of her mother’s clear problems in supporting a relationship with [X] and her dad, and the conflict this will engender for [X], and thus the negative impact that may have on her emotional wellbeing. That may be in part the explanation of the ambivalence she shows in the contact centre notes.

15. I have formed the view that while family therapy – which, to their absolute credit, both parents agree must happen in this matter, and they have appointed [Dr A] to do this – while family therapy is undergoing – and, I note, the first step in that therapy is an appointment next week with the father and [Dr A] – that the orders for time ought be suspended.

16. I have formed that view because I have formed the view that this will give the family therapy the best chance of success for [X]. As I see this matter, at this point in time, this is the only prospect – that is, successful family therapy intervention – the only prospect of [X] and her father reconnecting in any way.

17. The father will see [X] as part of this therapy. [X] will be reminded of her dad, and know he is still very desirous of spending time with her, as part of this therapy.

18. An order of a Court cannot change people’s behaviour, give them insight or understanding of consequences of adult behaviours and choices; and this is [X]’s very best chance to be able to exercise her right to a relationship with her dad, namely, therapeutic intervention, which the parents have agreed to.

19. Thus I will suspend all orders providing for the child, [X], born [date] 2010, to spend time with her father.

20. This order does not in any way prohibit [X] and the father spending time, as agreed or as recommended by [Dr A], into the future.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 28 November 2018