Reilly and Sully (No 2)

[2017] FamCA 659

FAMILY COURT OF AUSTRALIA

REILLY & SULLY (NO. 2) [2017] FamCA 659

CHILDREN – INTERIM PROCEEDINGS – whether there is a significant risk of retaining the child in contravention of orders

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Reilly

RESPONDENT: Mr Sully

FILE NUMBER: SYC 5651 of 2013

DATE DELIVERED: 21 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 21 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Skidmore

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Roberts

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

IT IS ORDERED THAT

1. I discharge the orders made 18 May 2017 by Justice Loughnan, and I make orders in accordance with the Minute handed up to me, initialled by me with today’s date, noting that those orders are made following a contested hearing, but with some agreement as to the mechanics as to how supervised time will take place.

Minute
Following a contested interim hearing and pending further order:

1. That [B], born … 2008, live with the Mother.

2. That until further order, it is ordered that the operation of Orders 1.4, 1.5, 1.6, 1.7 and 1.8, of the orders of 16 March 2016 be suspended, a copy of which are attached.

3. Other than otherwise provided for in these order, the father is restrained by injunction from:

   a.Communicating with the child in any way;

   b.Going within 200 metres of the child;

   c.Going within 200 metres of any place where the child resides; and

   d.Going within 200 metres of the child’s school.

   Noting that the orders in 3a-d herein are for the personal protection of the child, [B].
   Noting that these injunctions are suspended whilst the child and father spend supervised time together under order 4.

4. That the father and child spend time together as follows:

   a.That the father and the child spend time together for five hours each Saturday commencing 5 August 2017 (preferably from 11am to 4pm but otherwise no earlier than 11am and in accordance with the supervisor’s availability and if no availability on Saturday then on Sunday) with the pick-up and drop off by [N Contact Service] to be from the mother’s home.

   b.That the father and the child spend time together on 26 July 2017 from 3:30pm to 7:30pm with the pick-up and drop off by [N Contact Service]  to be from the mother’s home.

   c.That the father and the child spend time together for five hours from 11am to 4pm on Sunday 30 July 2017 with the pick-up and drop off by [N Contact Service]  to be from the mother’s home.

   d.The time in Orders 4a, 4b and 4c shall be supervised by [N Contact Service]  and the cost will be borne by the father.

   e.That both parents will forthwith do all things and sign all documents, agreements and contracts as are required by [N Contact Service] and will abide by those conditions and all directions of the staff of [N Contact Service]  as to the conduct of supervised time.

   f.That both parties shall be entitled to a copy of any reports produced by [N Contact Service] resulting from the supervision.

   g.That Order 4a may be suspended provided the mother gives the father at least 14 days’ notice in writing that the contact will not occur and nominates a date within 21 days of the contact date missed when make-up time can occur.

5. The child is to be returned promptly to the mother at the conclusion of time in Order 4 and the father shall ensure this occurs and do all things necessary including leaving the child promptly to allow [N Contact Service] to return the child within the allocated time provided for in Order 4.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reilly & Sully (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5651 of 2013

Ms Reilly

Applicant

And

Mr Sully

Respondent

REASONS FOR JUDGMENT

1. In this matter, the nature of this application is for the reinstatement of final orders in relation to family therapy, for orders in relation to a restraint upon the mother from moving from Suburb C and an order for the discharge of orders that were made by Loughnan J.  At the hearing of the matter there was insufficient time to deal with each of these items.  The first was identified as the most significant, being the question of the reinstatement of orders.  The mother’s position was that she sought an adjournment of the proceedings.  The issue as to family therapy was unable to be dealt with as there was insufficient evidence to establish an appropriate family therapist.  The issue in relation to restraint of the mother from moving from Suburb C was accepted as not being urgent at this point.

2. One of the reasons the mother sought an adjournment was that the Independent Children’s Lawyer had not come onto the matter despite the order for appointment.  She also sought an updated Single Expert’s report.  Pending that, the mother said that the current regime could continue, which is five hours supervised time once a week.  I declined the adjournment application.  The matter reached me following the making of ex parte orders in relation to the father and that required, then, a consideration rather than a simple continuation. 

3. The material relied upon by the parties is as follows.  The mother - there was the Single Expert’s report from the previous proceedings, being the report of Professor D.  That was exhibit C1.  She relied upon affidavits from 12 May and 19 July from herself and an affidavit from Ms G.

4. The father relied on his affidavit of 13 June and exhibit F1, which was an affidavit and report by his previous treating psychiatrist Dr N, and exhibit F2, which was a series of contact reports dealing with the supervised time that he spent with his daughter, B, since orders were made approximately a month ago by Le Poer Trench J.  The relevant background of this matter is that final orders were made in March 2016 following the release of Professor D’s report. 

5. In general terms, they provided for the mother to have sole parental responsibility with an 11/3 split in B’s time such that she was spending the bulk of her time with her mother.  It was accepted by the father that between August 2016 and May 2017 there were about nine occasions on which B was retained by him in contravention of orders, including, on one occasion, for as long as 18 days.  An ex parte recovery order was made by Loughnan J, which suspended all of the father’s time and made orders preventing him from approaching or having any contact with B.  That matter came back before Le Poer Trench J and some supervised time orders were made. 

6. They were not made as a result of any judicial consideration at that point, other than a consideration of consent terms that were then handed out.  The key matters that I have been asked to consider in relation to the interim case is, for the mother, the need to guard against further retentions of B, the need to protect B from the father denigrating the mother, her concern about B suffering from triangulation, which I will deal with later, and that, if retained by the mother, B will suffer social isolation. 

7. This calls into play a number of factors under s 60CC. In particular, the nature of B’s relationship with each of her parents, the promotion of meaningful relationships between B and each of her parents, the effect of undermining upon those relationships and the capacity of each of the parents to provide appropriately for B’s emotional care, and the need to protect B from emotional harm. For the father, the issues that are called into play are the nature of the relationship between B and himself and his concern that there are problems in B’s relationship with her mother. He challenges the likelihood that there would be further retentions of B and challenges the notion that she is isolated when with him. Essentially the same s 60CC factors are brought into play on the father’s case.

8. The key aspects of the evidence presented by the mother included breach, or an allegation of a breach, of one of the restraints on 21 May 2017 by the father post the recovery order.  On 28 May, she says that B ran away to the father’s house.  This does not seem to be disputed.  And that the father did not return B despite police intervention in the matter.  This occurred around B’s birthday and the mother agreed to wait for further action until B had spent birthday time with the father. 

9. However, on the first of June it was necessary for the recovery order to be executed again to have B returned.  She says that during some of the periods B was refused contact not only with her but with the school and with friends.  She said that since there was a suspension in the time that the father spent with B - and correspondingly since it was supervised-only time, there has been an improvement in B’s conduct.  She further says that there have been multiple events of B running away from her and running to the father and gave evidence of the father telling the mother in front of B, “[B] doesn’t want to see you again” and otherwise undermining the mother in B’s presence as late as April of this year. 

10. She relied upon Professor D’s report, in particular pages 48 through to 52.  Professor D expressed concerns that the father attributes his wishes and emotions to B, such that he believes her wishes and emotions are likely projections of his own.  She says that there are significant limitations in his parenting capacity and expressed a concern for triangulation which she explained to be where the father was expressing what he thought were the child’s wishes when they were, in fact, his own, and the product may be that the child is unable to distinguish between her own feelings and her father’s feelings. 

11. Professor D thought that this could be quite damaging.  She also found that B is strongly aligned with her father and that B would have difficulty if she did not have continuing contact with her father.  She also thought that the father has considerable capacity to provide positive experiences for B.  She, however, also thought that there was considerable risk of psychological or emotional harm with the father, which I took to mean if B was to live primarily with the father.  She thought that if the father persisted in the triangulation there may need to be a limitation of time.  Now, Professor D’s material is not tested in the context of this current application. 

12. It does, however, raise significant issues regarding the father.  Those issues are not able to be resolved at this point, but they do raise potential negative consequences for B with the father.  The father’s evidential material covered, in part, matters that have occurred since the ex parte recovery order was made.  They include also the occasions for the retention of B and the need for the further execution of a recovery order.  In particular, they include a description of B arriving at the father’s house being highly emotional and refusing to go to the mother. 

13. They include, prior to that, B having run away from the mother, in particular in October and December 2016, B reporting to her father that she looks for opportunities to escape, B reporting to her father physical altercations between herself and her mother.  He reports a significant number of complaints made by B in relation to the mother.  It is difficult, at this stage, to give credence to those complaints in the form that they are given, however I note, again, they are controversial matters and matters that I am unable to finally determine at this point. 

14. Whatever the situation in relation to the complaints that B has made about her father, his position before the Court is that the mother, at this stage, at least, should retain the primary care of B.  That is, the key issue is not identified by him at the moment of there being a current and cogent risk to B such that she should not be living with the mother.  He pointed to evidence from his previous treating psychiatrist, produced from 2015, that he does not suffer from a mental illness and that he does not have a personality disorder.  Again, these matters are somewhat contentious. 

15. They are unable to be resolved at present and do not, at present, require a resolution to deal with the interim matter.  The parties both refer to a report annexed by Ms O, who has spent significant time helping B, by providing counselling and psychological services.  That report was provided in May 2017.  She noted that B would be sad not to spend time with her father, that B had, in 2016, expressed to her mother that she was not happy in the relationship with her mother.  In particular, Ms O thought that it was the conflict between the parents which would be emotionally damaging to B. 

16. The father further relied upon four contact reports spanning approximately the last month provided by the supervisors for the time that that he spent with B at N Contact Service.  Those detail four attendances from 20 June, 24 June, 1 July and 7 July this year.  They mark nothing adverse in the interactions between the father and B.  In summary, they demonstrate a warm and supportive relationship between the father and B.  There was no difficulty in B separating from her mother and returning to her father, or separating from her father and returning to her mother, that was reported.  That is, there was no indication of an experienced friction by B. 

17. Returning, then, to the key matters, the mother is, at this point, accepted as the primary carer.  That is, B will, on either case, at this point, continue to live with the mother.  Further, B appears to have great affection and warmth of relationship with her father.  While the mother raises issues regarding B’s wellbeing with the father, consent orders were entered into between the parties last year.  However, there is a critical matter that has arisen since the consent orders and it is a critical matter that, at least, is factually conceded by the father.  That is, there have been multiple retentions of B by the father - some nine occasions with one of those spanning as much as 18 days. 

18. These have continued even following police intervention and even following the making of a recovery order.  From the bar table I was told, for the father, that he would consent to an extant recovery order so as to mean that a recovery order would somehow be in place ready if a further retention of B took place.  I am unable, at this point, to determine the form of such an order that would be workable, or the ability to make such an order, or the means by which such an order would become operative. 

19. I was further urged from the bar table that the father has now developed an understanding that what it is that was reported to him by B does not represent an issue in the mother’s home.  That is, that it constituted protective behaviour by the mother towards B.  If the father has that understanding, it is not supported by evidence.  There is no evidence presented by the father that can lead me to a conclusion that there is not a significant risk of further retention.  The recent unequivocal history of retention establishes a cogent risk of the same, even in the context of interim proceedings and untested evidence.  While the father made an offer for an extant recovery order, there has been no offer of the laying of a bond, nor an offer to pay security for costs to support the mother, should she need to make another application for recovery. 

20. While the question of triangulation put forward by the mother is, at present, controversial, the matter focuses down to the disruption of B, the high risk of police involvement, the high risk of exposure to conflict between the parents which accompanies the risk that comes of further withholding of B and the need to obtain further recovery orders.  Those matters mean that it is currently required, for the father to continue spending time with B, which is in B’s interest, that that time remains supervised.  The reports of the supervised time indicated that there has been no attempt to remove B. 

21. They further indicate that B appears to be deriving pleasure and emotional support from the supervised time.  That is, orders in the form made by Le Poer Trench J by consent have been successful in allowing B to continue to enjoy time with her father.  That success of those consent orders leads me to the inference that orders in those sorts of terms will be appropriate to continue, at least in the short term.  It may be that on another occasion there will be sufficient evidence before the Court to persuade the Court that the risk of retention of B has abated.  That is not the case today. 

22. The orders should be supported by continuing injunction in the general terms made by Loughnan J.  That is for the father not to attend B or the house or the school or to contact B outside the terms of the orders.  If those things were to occur, there is a risk of further running away by B and a further risk of breach of orders.  I will make orders that will discharge the orders made by Loughnan J that will suspend orders 1.4, 1.7 and 1.8 of the final orders and make orders in the general terms made by Le Poer Trench J along with orders in the general terms of the injunctive relief ordered by Loughnan J. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 July 2017.

Associate:     

Date:  28 August 2017