Reisner and Reisner (No. 2)

[2009] FamCA 578

FAMILY COURT OF AUSTRALIA

REISNER & REISNER (NO. 2) [2009] FamCA 578

FAMILY LAW – ORDERS – Stay – Restraint on father taking child to grandparents’ residence

APPLICANT: Ms Reisner

RESPONDENT: Mr Reisner

INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill of Legal Aid Queensland

FILE NUMBER: BRC 1065 of 2007

DATE DELIVERED: 12 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 12 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hogan of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Barry & Nilsson

SOLICITOR FOR THE RESPONDENT: The Respondent Father appeared on his own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill, Solicitor appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The Mother’s Application in Form 2 filed 14 April 2009 and the Mother’s oral application to discharge the Orders of 18 March 2009 are dismissed.

2. Ms B, Family Consultant, to prepare an updated family report.

3. The proceedings be adjourned for trial directions and review to 10.00 am on
   21 August 2009 at the Brisbane Registry of the Family Court.

4. The proceedings be listed for trial for four days commencing 10.00 am on
   20 October 2009 at the Brisbane Registry of the Family Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1065 of 2007

MS REISNER

Applicant

And

MR REISNER

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed by the applicant mother Ms Reisner in which she seeks a stay of orders made on 18 March this year.

2. The primary issue in this litigation is whether the parties' six year old daughter should have any communication, direct or indirect, with her paternal grandfather.  The mother asserts there is an unacceptable risk to the child in the event that there was direct or indirect communication with the paternal grandfather.  She asserts that there was an incident of sexual abuse.  As I understand the evidence - I will allow any correction of this - but the allegation surfaced in about January 2007, that is two and a half years ago- - -

   RECORDED  :  NOT TRANSCRIBED

   - - -and it is an incident which is said to have occurred at the paternal grandparents' residence at B.  The child was four years of age at the time.

3. The other aspect of the unacceptable risk is that after these allegations were raised the paternal grandfather made threats to various persons, including the mother, threats as to their well-being, and it went further than that in that he was, I believe, whether voluntarily or involuntarily, admitted to an institution for some form of treatment.

   RECORDED  :  NOT TRANSCRIBED

4. Baumann FM had dealt with this matter for some considerable period of time and his Honour had made orders the father was not to bring the child within 100 metres of the residence of the paternal grandparents at B and, furthermore, he was not to bring the child into direct or indirect contact with the paternal grandfather, be it away from the residence at B.

   The matter has been in my docket since late last year.  It was before me on 18 March this year.  The father at that stage was represented by Mr Zande, solicitor, and he made an oral application.  The Court was dealing with a number of issues on that date.  Before dealing with that application I will just mention the geography is as at that time the father resided with his current wife at S, which is in the Sunshine Coast district.  The mother resides in a bayside suburb of Brisbane.  The paternal grandparents reside at B, which is an outer northern suburb of Brisbane.  The child is at school obviously in the bayside Brisbane district.

5. The current arrangements provide for the father to have five nights out of 14 with the child.  That consists of every Wednesday afternoon from after school until the commencement of school on the following day and together with Friday afternoon until Monday morning on alternate weekends, a total of five nights out of 14.  In addition, the father has half school holidays.

6. Mr Zande indicated it was an onerous drive for the father and the child in heavy traffic, particularly on Wednesdays, to have to travel from S down to Brisbane and then back again to stay at S for the purpose of seeing the child simply overnight and then having to get the child back early the next morning.  He asked that Baumann FM's injunction be lifted insofar as it related to the premises.  The injunction was to stand that the child was not to be brought into contact, directly or indirectly, with the paternal grandfather, but the child should be allowed to stay with the respondent father at the B residence provided, obviously, the paternal grandfather was not present.

7. The evidence before me at the present time is that since 18 March until today's date, 11 June, the child has stayed there consistently and on each occasion the paternal grandfather has removed himself and gone and stayed with friends in other areas of Brisbane.

8. There is no evidence other than that the child has a good relationship with the paternal grandmother.  There is no prohibition on the paternal grandmother coming into contact with the child, except originally it could not be at her home.  For very brief reasons I gave at the time, I acceded to the oral application on the father's behalf.  I do note the quite strenuous submissions made on the mother's behalf opposing the application and that was supported by the Independent Children's Lawyer at the time.  I lifted the restraint on the child being able to stay at the B residence, but allowed to remain in place the injunction against the child's coming into contact with her paternal grandfather. 

9. For some period of time after 18 March the change was such that the father would stay at the B residence each Wednesday evening with the child.  Whether it was four weeks ago or six weeks ago I'm unable to say, but the father has recently separated from his wife, who continues to reside at S, and he has moved in semi-permanently, with his parents at B.  The consequence of this is that this young child is now spending five nights out of 14 at the B residence.

10. I am asked to reverse the order that I made on 18 March that is to discharge the order permitting the stay at B, or to grant a stay of the order.  The basis of the stay is that the mother has lodged a notice of appeal which was lodged on 9 April 2009.  The sole basis of appeal relates to the order permitting the child to spend time at the B residence.  Whether I was to discharge the order or grant the stay the effect would be the same.  I do not propose to canvass which option would be more effective.

11. In the course of submissions today, no consideration was given, where the father would spend his five nights with his daughter in the event that I said the daughter is not to stay at the B residence.  He does not have any other quarters.  I am assuming that he is estranged from his wife, so it is awkward or difficult to go back to S for five nights out of 14.  He has a brother on the Gold Coast, but that would impose further driving and time constraints for the child to go down every Wednesday from Brisbane to the Gold Coast and back for overnight time with the father.

12. The order that I made on 18 March has now been in place for 12 weeks.  The father says in paragraph 10 of his affidavit, which was - - -

    RECORDED  :  NOT TRANSCRIBED

    filed on 10 June:

    "Since [the child] has returned to the residence at [B] to stay there have been no notable changes in her behaviour, except for perhaps more excitement.  She has been excited to be able to return to her own room and to play with different things at the house.  [The child] has informed me that after the first night that she stayed at [B], upon returning to her mother's residence she wrote on her calendar in her room on every Wednesday the word 'Yay' because she was so excited that she was able to stay there."

13. On today's date there seems to be an admission from the mother that certainly at least on one Wednesday night immediately after the first night the child has written the word "Yay" on the calendar in the Brisbane residence she occupies with her mother.  The mother concedes that the child also made some favourable comments about seeing pets at the B residence.

14. The father says that he has made inquiries from the child's school and been informed that there have been no changes in her behaviour or demeanour since 18 March.  He refers to paragraph 53 of the mother's affidavit, which I will be commenting on shortly, that is about the child being in an emotional state.  He says he does not discount this statement, but he has not seen any evidence of this sort of behaviour whilst the child has been in his care.  He says:

    "In fact I have seen quite the opposite sort of behaviour and I have seen a little girl who is happy and excited and enjoys the time that she spends with me and also the time that she spends at the residence in question."

    Paragraph 12 of his affidavit.

15. Now, the mother says her concerns remain and they are articulated at paragraphs 46 and 47 of her affidavit filed on 14 April in conjunction with the stay application:

    "I remain concerned that the father does not accept or believe the allegations made by [the child] against Mr [Reisner] and as a consequence will not act protectively when [the child] is spending time with him.  Mr [Reisner]- - -"

    presumably Mr Reisner Senior

    "- - -is not a party to these proceedings and orders are not able to be made restraining him from having direct or indirect contact and communication with [the child]."

16. The only comment I will make about that is that Mr Reisner Senior does not have to be a party to these proceedings.  The obligation is on the father not to bring the child into direct or indirect contact with the paternal grandfather.  It includes presumably mail communication, telephone communication, et cetera.  In the event that the paternal grandfather exercised his obvious right to return to his own home the obligation is on the father to immediately leave with the child and there is nothing in the evidence before me which would indicate the father has not complied completely with the letter of the law and the spirit of the law in relation to the injunctions that have been in place for such a considerable period of time.

17. In paragraph 47 the mother says:

    "I am concerned that the father will continue to bring [the child] into contact, either directly or indirectly, with [the paternal grandfather]."

    There is no evidence that he has done that for years. 

    "The father appears to believe that I have caused [the child] to make disclosures that she has been sexually abused by [the paternal grandfather].  The father has also alleged that I have psychological problems.  I deny these allegations."

18. Paragraph 49:

    "My overriding concern is to protect [the child] from physical and psychological harm.  I am concerned that allowing the father's time to occur in the home of the paternal grandparents where it is alleged that the sexual abuse occurred may cause irreversible emotional and psychological damage to [the child]."

19. At paragraphs 52 and 54 commenting on what happened after the orders of 18 March the mother deposes:

    "[The child’s] first visit to the paternal grandparents' home occurred on 18 March 2009, the day the injunction was lifted.  I did not see [the child] before she was collected by the father from school.  I collected her from school on the following Thursday afternoon.  On her return home I observed [the child] to be excited, especially at seeing their pet dog.  Between Thursday afternoon and Saturday [the child] appeared emotional and quiet."

    I am not sure what conclusion I am being asked to draw there.  Whether she was emotional and quiet as a result of having spent time at the B residence or for some other reason.

20. Paragraph 53:

    "On Saturday [the child] went into her room and crying and said to me in words to the effect 'I hate myself and I would love it if someone else would hate me.'"

    The mother says:

    "I tried to console [the child], but she continued to work herself into such an emotional state whilst trying to express to me what she was feeling.  [The child] lost her breath and she turned blue.  After talking her through it and holding her she calmed down."

    Again, there is nothing to relate this behaviour specifically with the events that occurred on the previous Wednesday night.

21. She said on Wednesday, 29 March- - -

    RECORDED  :  NOT TRANSCRIBED

    "[The child] appeared happy and was talking about having gone to McDonalds and then back to the paternal grandparents' home.  She enjoyed being video-recorded while singing."

    I appreciate the circumstances have changed.  I would be somewhat critical of the father for not notifying the mother and the Independent Children's Lawyer in accordance with earlier orders that he had to notify any change of address.

22. I note he is not legally represented.  However, it is important that the parties' behaviour be open and transparent in any Court proceedings and certainly the circumstances have altered since the order was made on 18 March.  In other words, it was envisaged two nights a fortnight, it is now five nights a fortnight.

23. The father says in paragraph 5:

    "Since the orders of 18 March 2009 [the child] and I have resided at the residence of the paternal grandparents and the paternal grandfather [Mr Reisner Snr] has not been present on any occasion."

    I agree that that may be somewhat ambiguous, but for present purposes I proceed on the basis that it was up until four to six weeks ago only Wednesday nights he stayed there, but he is not concealing the fact that he now stays there on a permanent basis.

24. I have read the report of Dr M when it came in in this matter.  The matter is in the LAT system.  I find it difficult to accept the bringing of the child into a home that she has known where the only objection to bringing her into the home is that there is an allegation that in January 2007 - I think it is on one occasion, there was an incident of sexual abuse with her paternal grandfather - bringing her into that home when the paternal grandfather is not present.  I do not see that the disruption to the father's life or the child's life or exposing them to traffic and other delays is justified.  The mother's stance appears to me to be very hard line.

25. So far as the paternal grandfather is concerned the mother’s position is not that the time between the child and the paternal grandfather needs to be supervised.  Seemingly forever more the child, whilst a child, is never to see her paternal grandfather.  That can be argued.  I will consider that matter, but it seems to me that the mother's stance not only is an absolute one, vis-a-vis the paternal grandfather, it is also against any residence, in particular the B residence, which he may have occupied.

26. I appreciate, as I have said, the circumstances have changed, but I am not minded to accede to the applications, either the application for a stay or the oral application to discharge my orders.

27. I turn briefly to the helpful written submissions provided by counsel for the applicant mother.  I accept her summary of the law in relation to the granting or refusal of stay applications.  In relation to the argument as to whether it would render the appeal nugatory the only observation I wish to make is that it cuts both ways, that if I granted the stay the impact of that, of course, is as if I never made the order in his favour in the first place.  As I observed earlier nobody has addressed me on where on earth he is going to stay with his daughter.

28. I accept that refusal to grant the stay renders the appeal nugatory so far as the mother is concerned, at least up until 3 August.  What I can indicate is that regardless of the outcome of the appeal I am in a position to give this matter a hearing date in October or - probably the earliest is October, but also November of this year. 

29. So one assumes the Appeal Court hears it in the week commencing 3 August.  One assumes the appeal is successful.  One assumes that the Full Court gives judgment in that week, which is not an outcome regularly done, that they deliver appeals instanter, but this Court may be minded to in this particular case.  Even then on my calculations that stay would operate only for a period of about two and a half months.

30. Bring the matter on for trial, air the expert's evidence, deal with the issues is the better approach.  I have at all times in the Less Adversarial Trial process urged parties to try and resolve matters out of Court.  Do not go to trial, too stressful, does not help your physical or psychological position, certainly does not help your financial position.  So I do not encourage the parties to litigate, I do exactly the reverse, encouraging them to settle, but if the matter must go to trial I am in a position to allocate dates at that time as I have indicated.

31. So for the reasons given I propose to dismiss the application for a stay.

    RECORDED  :  NOT TRANSCRIBED

32. 20 to 23 October.  The review date is 21 August.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  12 June 2009