Richards and Whipp (No. 2)

[2009] FamCA 522

FAMILY COURT OF AUSTRALIA

RICHARDS & WHIPP (NO. 2) [2009] FamCA 522

FAMILY LAW – CHILDREN – Interim – Time with father

APPLICANT: Mr Richards

RESPONDENT: Ms Whipp

FILE NUMBER: SYC 4363 of 2007

DATE DELIVERED: 16 June 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Watts J

HEARING DATE: 16 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Meyer Pigdon

SOLICITOR FOR THE RESPONDENT: Diana Perla & Associates

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

1. The father spend time with the child, … born … March 2007, as follows:-

   1.1.Wednesday 17 June 2009 from 9am to 12 noon.

   1.2.Friday 19 June 2009 from 9am to 12 noon.

   1.3.Saturday 20 June 2009 from 8.30am to 12.30pm.

   1.4.Monday 22 June 2009 from 8.30am to 12.30pm.

   1.5.Wednesday 24 June 2009 from 8.30am to 12.30pm.

   1.6.Friday 26 June 2009 from 9am to 5pm.

   1.7.Sunday 28 June 2009 from 9am to 5pm.

2. The mother and if she desires, either her father or sister (but not both) be present for the first 25 minutes of each visit.

3. The mother is to ensure that the child brings with her one of her teddy bears on each occasion (the same bear on each occasion) and the father ensure that that bear is with the child when the child is returned to her mother at the conclusion of each time she is with the father. 

4. The father provide to the mother a framed photograph of himself of no more than A4 in size and the mother do all things to ensure that photograph to be prominently displayed thereafter in the child’s bedroom. 

5. The father identify and participate in a counseling or training course that focuses on general child development issues and on enhancing his understanding of the child’s changing needs as she grows.

6. The solicitors for the parties confer and make the necessary arrangements for the parties to attend, on the next occasion the father is in Australia, a post separation parenting program which has as one of its central aims, the encouragement of effective communication between parents and assisting parents to focus on building a more cooperative relationship as parents.

7. The father provide to the mother one month’s written notice of the dates during which he will be in Australia on any occasion he is visiting Australia for purposes of spending time with the child. 

8. Forthwith upon giving that notice, the lawyers for the parties are to confer in relation to what time and in what circumstances the child will spend time with her father during that visit.

9. In the event the parties are unable to reach agreement within 7 days either party have leave to list the matter before me if reasonably available, within a further 7 days and each party will file and serve a minute of the orders sought for the forthcoming visit by the father to Australia and an affidavit of no more than 5 pages setting out the essential evidence upon which they rely to support the application.

10. The lawyers for the parties are to confer in relation to a trial plan for the final hearing and within 14 days email that draft trial plan to my associate together with a list of material upon which each party seeks to rely at the final hearing. 

11. The matter will be relisted before me at 11am on 10 August 2009 to discuss whether or not the final hearing will be expedited.

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 4363 of 2007

MR RICHARDS

Applicant

And

MS WHIPP

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the lawyers for the father, by way of a letter dated 3 June 2009, sought an urgent re-listing of the matter.  The father was returning to Australia for the purposes of spending time with the parties’ child, a daughter born in March 2007. 

2. When the father was here last time, there was more or less compliance with the orders that I previously made for the child to spend time with her father.

3. Notwithstanding the contents of the recommendations of the family report dated 6 May 2009, that was released to the parties in the middle of May, the parties as between themselves were unable to reach an agreement in relation to what time the child would spend with the father for the period of time that he was in Australia in June this year.

4. The matter was originally listed by me at 4.15pm on Friday 12 June 2009.  At that time I was handed from the bar table the father's application in a case with an affidavit which is 58 pages.  It has annexures which are not paginated and I have not counted them, but they are almost double the width of the text of the affidavit.  The father also relies upon an affidavit of Ms C, who, on the face of it, appears to be an independent witness to an incident at Sydney between the mother and the father and the child on 12 April 2009.  Ms C seems to have been disturbed to a sufficient degree to have agreed to give evidence on behalf of the father of what she had observed as a bystander about the mother's behaviour in removing the child from the father's arms.

5. The mother has filed a document in Court on 12 June 2009 which I am asked to treat as a response.  It was actually going to be an application in a case by the mother.  The mother has prepared an affidavit sworn on 12 June 2009, it is 81 pages in length.  That document is paginated.  She also relies on an affidavit of her father sworn on 12 June 2009 and a medical certificate from Dr D dated 11 June 2009.  There was another affidavit of the mother said to be sent to the court very recently which I have not seen that I am not relying upon, but I rely upon the representation made by the solicitor for the mother that there have been two occasions over the weekend since the father has arrived in Australia where the child has seen her father for about an hour and a half and there has been no particular incident happen on either of those occasions.  The mother, as I understand it, was present during both of those one and a half hour periods.

6. I have before me the family report prepared by Ms B, the family consultant, dated 6 May 2009.

7. I also am mindful of the orders I put in place for the last block period of time when the father was in Australia and the reasons I gave for making those orders.  I am aware that the mother appealed my orders, but then that appeal was withdrawn and as I have said so far as the material that is before me indicates, apart from a litany of complaints and some alleged breaches, there was substantial compliance with those orders.

8. The father's current application is that the child spend time with him on every day between 13 June and 29 June and that from 22 June that be overnight.  It is proposed by the father that all that time be unsupervised. 

9. The mother's response is that the child spend time with the father on Sunday 14 June, Monday 15 June.  Pausing there, I am not quite sure what two days the child has seen her father, but that part of the mother's application has apparently actually happened.  She then seeks time on Wednesday 17 June, Saturday 20 June, Monday 22 June, Wednesday 24 June, Saturday 27 June.  The mother wishes two supervisors to be present and nominated by her.  I find that it is appropriate that she have one person with her.  Neither that person nor the mother is there as a supervisor but as insurance against the child experiencing separation anxiety.  The mother also seeks expedition of the final hearing. 

10. It is clear from the papers that I have for this interim application that the war between the parties continues unabated.  Not only is it clear that the two parents cannot talk to one another in any reasonable way about a reasonable arrangement in respect of the child, even with the assistance of the guidance of a family report, the lawyers for the parties, whether under instructions or otherwise seem unable to assist their clients in reaching reasonably short term arrangements in relation to the child.  The affidavits to a large degree chronicle the parties’ different versions of occasions that happened in the last block of time, sometimes on a minute by minute basis.  I am unable within the confines of this interim hearing to make any determination as to the truth or otherwise of many of the factual matters about which the parties are in dispute.  The minute detail may be something that gets an airing and a testing in a final hearing, but it also might be that a lot of it is of little weight in determining what the final outcome of the parenting arrangements in relation to the child should be.

11. None of the witnesses have been tested and it is not possible at this stage to say what weight I should place on any particular piece of evidence that has been filed.

12. The family consultant has seen the parties now on a number of occasions, including interviews for the full family report on the 21 and 23 April 2009.  That report provides a summary of some of the background history of this matter.  I have commented on a previous occasion one unusual feature of this case is the parties have jointly managed to spend well in excess of $600,000 on legal fees fighting over issues relating to the child by the age she had turned two and I think probably now that figure is significantly higher.  The parties still cannot agree on an interim basis as to how the child is to spend time and communicate with her father.

13. The family consultant indicates that I need to be mindful of the impact on the child of her time with the father given that the child only sees her father on an inconsistent and infrequent basis when he flies out from New York every few months.  I am mindful of the litigious and hostile nature of the parties' relationship.  On the face of it at this point it appears that they currently cannot effectively communicate with one another in relation to the child’s best interests.  In fact the parties disagree on most historical matters and there is a high level of mistrust between the two of them, each blames the other and whether or not most of that blame will fall at the mother's door as a result of a determination at the final hearing, I do not know.  It is certainly not the only possible outcome of factual findings at the final hearing and there are other possible outcomes.

14. The pattern of time that I have put in place for the child for her father's last visit seems to me to have become difficult.  Both parents have a different perception as to why that is so.  The father, for his part, feels that any difficulties the child may have experienced was a direct result of the mother's presence and ongoing interference in the visits.  I have no doubt that the dynamics between the parties played a significant role in making the regime I put in place on the last occasion less than a satisfactory experience for the child.

15. It is primarily the father's conviction that his time with the child will continue to be problematic if the mother or someone on behalf of the mother “supervises” and he opposes all supervision for that reason.  The father has provided in his most recent affidavit numerous examples of how he alleges the mother has shown lack of regard and respect for the child’s time with him.  He alleges that to the family consultant that the mother has insinuated herself into the visits and has intentionally interrupted great moments that he was having with the child.  I am unable in the confines of this interim hearing to make any determination as to whether or not those allegations are true.  Clearly though, the father lays the majority of the blame for the tension that the child is experiencing during his time with her at the mother's feet.

16. The mother told the family consultant in paragraphs 43 and 44 that she understood that the father wanted to be able to spend as much time with the child as possible to make the most of their limited time together. Counsel for the father says that this is diametrically opposed to evidence that I have, but as I have said that evidence has not been tested and it is disputed.  The fact is that despite the mother expressing that sentiment, the parents have been unable to reach agreement in relation to the child spending time with her father for this block period. 

17. The family consultant says that the mother presented as a child focused parent and provided a number of age appropriate and child oriented reasons to support her views and concerns for the child.  The final hearing will focus on whether or not that assessment is one that should be adopted.  I had some concern this morning when I made a simple request of the mother's solicitor as to whether or not a photograph of the child’s father could be placed in the child’s bedroom that it took so long to get a positive answer to that simple question.

18. At paragraph 45 of the family consultant's report Ms B notes that the mother spoke at length about the difficulty she perceived and the schedule that was in place on the last occasion and there is evidence in the mother's affidavit about the effect the mother says the child sustained to her digestive system immediately following the last set of block contact.  She told the family consultant that she noticed changes during the last block contact in eating, sleeping and the toileting behaviour of the child, especially towards the end of the three week period and she said that the child became excessively tired, overly anxious and increasingly difficult to settle at night, refusing to sleep in her own cot and easily irritated and often extremely clingy when they returned at the end of the day and as the mother's lawyer said this morning, the mother complained about the fact that the child could not go at full pace during the whole period of contact time.

19. The family report indicated that the mother did recognise that she may not have been the best person to supervise visits given the high volatility of the relationship between her and the father, but really there is nobody else around who can do the job and it is not a matter of supervising, it is a matter of settling the child with the father and the family consultant indicates that from this point onwards in this block period that would only need be the initial period of 25 minutes of any visit.

20. The family consultant seems to have accepted and been impressed by statements by the mother being child focused.  As I have said that will be a matter for determination at the final trial and I have in mind, as counsel for the father has stressed, that there is a seeming independent witness who has volunteered to give evidence about what she saw concerned her in Sydney on 12 April, but I also realise that that witness’ evidence has not been tested.

21. Despite that incident on 12 April and the subsequent AVO proceedings, the family consultant on the day of the interviews which was the 21 or 23 April, observed the mother as receptive and supportive of the child spending time with the father and his current wife.  The child had her nappy changed by her father without drama and displayed a positive response to the family consultant's questions of the child about Daddy.

22. The mother has said that the child would normally sleep for three hours after lunch.  The family consultant observed the child becoming tired and tetchy in the afternoon when she had not had any sleep during the day of the interviews and that led to more tearful and clingy behaviour by the child and that observation by the family consultant is corroborative of the mother's evidence about the child’s sleep patterns in the afternoon.

23. The family consultant observed that the father, possibly due to his preoccupation of trying to connect with his daughter, was insensitive in his interactions with the child.  The family consultant formed the view that the father at times had difficulty reading the child’s emotional cues.  Nevertheless, the child’s time with her father overall was assessed as comfortable, enjoyable and positive. 

24. The father seemed to recognise that the child has a close relationship with her mother and the maternal grandparents.  He had a struggle to identify any strengths the mother has a parent.  He has the view that ultimately the mother wishes to sever his relationship with the child and in the final hearing he may well be vindicated in that view.  I am unable to make any such judgment in the context of these proceedings.

25. The family consultant comments that the current physical distance between the parties has to some degree shielded the child from the significant interpersonal tension that exists between the two parents.  The child however is getting to the age where she will start to understand how bad the quality of her parents' relationship is.  The family consultant comments upon the damage that that unabated conflict will bring to the child’s emotional and psychological wellbeing in the future.  The family consultant's opinion is that the child has not yet spent enough time with the father to form any significant attachment to him.  The regularity with which the father comes to Australia is not going to actually increase in the future.  The reality is that the child will only be able to see her father during her early childhood on a fragmented basis.

26. The family consultant is of the view that at best that will lead to a relationship in her early childhood akin to the type of relationship that may be able to be established with a distant uncle.  That opinion will be tested in a final hearing and as I have said, I am mindful that none of what I have got before me has been tested. 

27. However, in the context of this interim hearing, I need to place some weight on the family consultant's assessment of the child’s current level of attachment with the father and the family consultant's opinion as to how that could be best managed and improved moving forward.

28. At paragraph 65 of the report, the family consultant sets out what she says to be the realistic goals that should be aimed for when considering what time the child spends with her father.  It is clear that the mother is a highly intelligent woman, she has heard the expert advice as to the damage she will do to her daughter if she does not do everything in her power to change the hostile dynamics between her and the father.  The family consultant recommends the father may benefit from participating in training that focuses on general child development issues so that he can enhance his understanding of the child’s changing moods as she grows and his counsel today has indicated he is prepared to involve himself in such a course. 

29. It may be that the parties' unresolved hostilities are so entrenched that the child’s prognosis is poor, but the family consultant has made a strong recommendation that the parties attend some counselling to encourage effective communication and both parents indicated they are prepared to involve themselves in that process.

30. The family consultant has made some other clear recommendations in relation to time.  Firstly, that there be no overnight time in the absence of a secure attachment figure until the child is between the ages of three and four.  The father puts little weight on that recommendation.  The family consultant in her report was of the view, as I have said, that the frequency and pattern of what occurred in April should not continue.  In the opinion of the family consultant, it is too disruptive for the child and I have to put some weight on that opinion, which I acknowledge is untested in the context of this interim hearing.

1. The lawyer for the mother conceded that there is no expert evidence which would indicate that there was damage to the child’s colon.  The certificate from Dr D is less than clear as the timing of when certain observations were made.  There were apparently three attendances on Dr D and I am unclear as to which observations were made in relation to which attendance.

2. The family consultant suggests a routine which has at its beginning an initial two to three visits which are brief, approximately one and a half hours.  I am satisfied that that has already happened in this block.  After that, the person or persons who are known to the child should stay for about 20 to 30 minutes on each occasion.  She says that the visits should be each alternate day from 8.30 am to 11.30 to 12.30.  The family consultant advised that that would provide the child with some predictable and consistent regime and the family consultant suggest that as few as possible be there during that initial settling in time.  She says once a week there could be extended visits for a day, 9 am to 5 pm.

3. The family consultant recommends that the visits be incorporated and organised around the child’s prior commitments such as preschool.  The solicitor for the mother declined to provide information about the current preschool arrangements and for the purposes of this block, I am not going to take them into account because I do not have enough information about them.  However, I note that recommendation by the family consultant and it may be something that has to be taken into account on a subsequent occasion if proper information is given.

4. When making interim orders, my paramount consideration is the child’s best interests. To determine that I have in mind the matters referred to in s 60CC(2) and (3) of the Family Law Act.  My preceding comments have dealt with the matters mentioned in those sections which are relevant and important for my consideration of interim issues.  Primarily for the reasons set out in the family report, including the tyranny of distance and the high conflict between the parties and the current level of attachment between the child and her father, it is not reasonably practical on an interim basis for the child to spend equal or substantial or significant time with her father.

5. I propose to adopt most of the recommendations and have general regard to the overall pattern of time suggested in the family report when crafting interim orders.  The orders about the teddy bear and photograph are consistent with Ms B’s suggestions. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate:   

Date:  18.6.2009