Ridley & Ridley

[2015] FamCA 1032

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY [2015] FamCA 1032

FAMILY LAW – PRACTICE & PROCEDURE – Where final parenting orders were made in December 2014 in the mother’s voluntary absence, but were not complied with – Where fresh final parenting orders were made in June 2015, with the parties’ consent, but were again not complied with – Where the father filed a fresh application for parenting orders

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Where the child’s relationship with the father will wither to nothing if no changes are made to the current arrangements – Where the best hope for the child’s retention of meaningful relationships with both parents is for her to live, at least temporarily, with the father and to have respite from the mother’s actual or perceived influence – Where a limited issues family report is to be procured and the interim orders reviewed as soon as possible thereafter – Where the child will not spend time or communicate with the mother in the meantime, unless the father exercises parental responsibility to allow it – Parental Responsibility – Where the parties’ antipathy prevents them from exercising equal shared parental responsibility – Where no order is made as to the allocation of equal shared parental responsibility

Family Law Act 1975 (Cth), ss 11E, 11F, 60B, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65D

Ridley & Ridley [2014] FamCA 1231

APPLICANT: Mr Ridley

RESPONDENT: Ms Ridley

INDEPENDENT CHILDREN’S LAWYER: Emalene Gemmell Solicitor

FILE NUMBER: NCC 2245 of 2012

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 13 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Hamilton, Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gemmell, Emalene Gemmell Solicitor

Orders

BY CONSENT, IT IS ORDERED THAT

1. Leave is granted to the parties and the Independent Children’s Lawyer to inspect the documents produced on subpoena by Blackville Public School (Subpoena Packet 12).

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

1. All former parenting orders relating to the child the child B, born … 2010, (“the child”) are suspended.

2. The child shall live with the father.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

IT IS FURTHER ORDERED THAT

1. Pursuant to ss 11E and 11F of the Family Law Act:

   a.The parties shall ensure their and the child’s attendance upon the Family Consultant at the Family Court of Australia, Newcastle Registry, on Monday, 30 November 2015, at a time to be advised; and

   b.The Family Consultant shall prepare a brief report directed to the following issues by Monday, 7 December 2015:

   i.The nature and quality of the relationship between the child and father and the extent to which the child derives benefit from it; and

   ii.The capacity of the mother to support and promote the relationship between the child and the father.

2. The applications of the parties for interim parenting orders are adjourned for further hearing before Justice Austin at 9:30 am on Thursday, 10 December 2015.

3. The Application-Contravention filed by the father on 2 September 2015 is adjourned until 9:30 am on Thursday, 10 December 2015, for further procedural directions.

NOTATIONS

A.The mother’s legal representatives failed to attend the Court and redact the documents produced in Subpoena Packet 12 by 9:30 am on Friday, 13 November 2015, as ordered by the Registrar on 11 November 2015.

B.The proceedings remain listed for further procedural directions before the Registrar on 20 November 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridley & Ridley 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 NEWCASTLE

FILE NUMBER: NCC 2245 of 2012

Mr Ridley

Applicant

And

Ms Ridley

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT  

1. These proceedings concern a long-running dispute between the applicant father and respondent mother over their only child, the child M, born in 2010 (“the child”), who is now five years and eight months of age. 

2. Final orders were made on an undefended basis in December 2014 and a second set of final orders was made with the parties’ consent in June 2015.  Both sets of orders have failed to quell the controversy.  It is common ground the child has resisted spending time with the father and also communicating with him by telephone. 

3. The father alleged the child’s resistance is due to the mother’s deliberate attempts to sabotage the child’s relationship with him, though of course it is plausible her influence over the child is inadvertent.

4. The mother denies the father’s accusation.  She alleged she has done all she can to implement the existing orders and her failure to do so regularly is beyond her control. 

5. Regardless of their different perceptions, the orders made with their consent in June 2015 are not being regularly implemented and both parties want something done about it on both a final and interim basis.  The applications before me today concern only competing proposals for interim parenting orders.

Proposals

1. The father pressed for the interim orders set out within his Initiating Application filed on 18 September 2015.  In essence, he proposed that all former parenting orders relating to the child be discharged, that he have sole parental responsibility for the child, that she live with him, and that she spend no time with the mother for a period of six months, after which embargo period the child would resume spending time with the mother.

2. The mother pressed for the orders set out within her Response filed on

   
   

   20 October 2015.  She simply sought that she have sole parental responsibility for the child, that the child live with her, and that the child spend no time at all with the father. 

3. The mother initially sought an adjournment of the interim hearing to enable the parties to exhaust efforts at compromise, but given the father’s repudiation of the suggestion that agreement between them was likely, the mother sensibly conceded there was no basis for an adjournment and the interim hearing proceeded.

4. The Independent Children’s Lawyer was only recently appointed and felt she had not had sufficient opportunity to form any view about appropriate interim orders.  For that reason she made no proposal and no submissions, though she did tender some documents in evidence.

Evidence

1. The father relied upon his affidavit filed on 2 September 2015. 

2. The mother relied upon her two affidavits filed on 20 October 2015 and

   
   

   2 November 2015. 

3. Numerous exhibits were also tendered. The father tendered records from the contact centre used by the parties in the past (Exhibits F1, F2, F3) and from the child’s school (Exhibits F4, F5).  The Independent Children’s Lawyer tendered other records from the child’s school (Exhibits ICL1, ICL2).

History

1. The parties separated in or about October 2011. 

2. Their attempt to mediate arrangements for the child in early 2012 failed.  Proceedings were first commenced later in 2012. 

3. The child did not spend time with the father until interim orders, made in July 2013, were actually implemented in September 2013.

4. The mother subsequently disengaged from the litigation and compliance with the interim orders broke down. The litigation proceeded to final hearing in December 2014 and was determined in the mother’s voluntary absence. 

5. Final parenting orders were made on 12 December 2014 making provision for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father under a graduating regime. The ex tempore reasons given for those orders

   
   

   (see Ridley & Ridley [2014] FamCA 1231) should be read in conjunction with these reasons because they form an important part of the history behind the current proceedings.

6. The orders made in December 2014 were not the subject of the mother’s compliance.  Fresh proceedings were started by the father the following month in January 2015 by an Application-Contravention, which ultimately resulted in the mother’s arrest pursuant to a warrant.  When the mother re-engaged with the litigious process the warrant was discharged and, in June 2015, fresh parenting orders were made on a final basis with her consent. 

7. The orders made on 5 June 2015 essentially provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father on a re-jigged graduating regime. 

8. It was expressly noted at the time those orders were made:

   Although not legally represented the mother informed the Court that she entered into the parenting orders freely, willingly and voluntarily.

9. These current proceedings were commenced by the father in September 2015, he contending that the mother was again in default of the Court’s orders.

Legal Principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though in certain circumstances that presumption may either be inapplicable or rebutted (s 61DA(2), 61DA(4)).

5. The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best Interests – Primary Considerations

1. The mother filed a Notice of Risk with her Response on 20 October 2015, asserting the commission of past family violence by the father, but her supporting affidavit deposed to the occurrence of that conduct in 2011 and 2012, around the time of the parties’ separation, well before the orders were made in December 2014 and again in June 2015. 

2. Such historical allegations inform the animosity that may currently exist between the parties, but it is not probative of any current need to protect the child from any harm that might result from her subjection or exposure to family violence or abuse.  The mother would surely not have consented to the orders in June 2015 in the terms that she did if she believed otherwise.

3. The only primary consideration affecting the outcome of the current interim dispute is the quality of the child’s relationships with both parties and the benefit she derives from such relationships. 

4. It is beyond dispute the child has a close, loving and meaningful relationship with the mother.  The contest centres over the quality of the child’s relationship with the father. 

5. It is instructive to consider comments made in the ex tempore reasons delivered for the orders made in December 2014, which are repeated hereunder: 

   35.The nature of the child’s relationship with the father is, however,     in a different category.  As already indicated, the child had no contact of any sort with the father between October 2011 and September 2013.  When the child was observed by the family consultant in the company of the father in March 2014 the father engaged well with the child and the child “warmed up” to the father very quickly.  The child’s demeanour, in the opinion of the family consultant, was just as it had been with the mother, namely, happy, upbeat and conversational.  The family consultant observed that the child and the father engaged in a range of games and the father demonstrated appropriate child-focused parenting approaches with the child throughout the session.

   36.The family consultant invited the mother to observe the interactive session between the child and the father, which invitation the mother accepted.  The family consultant indicated that what the mother observed was generally consistent with the rest of the observation session between the child and the father which had not been directly witnessed by the mother.  The family consultant considered that the observation session indicated the child’s relationship with the father had progressed to a point where she was comfortable in his sole presence.

   37.At the conclusion of the observation session between the child and the father, the family consultant advised both parties that she considered the child had a sufficient relationship with the father that reintroduction of the child to the father at a contact centre was no longer necessary.

   38.Clearly the child’s relationship with the father is still not yet as important to the child as her relationship with the mother, but her relationship with the father is nonetheless valuable and significant.  The relationship the child has with her father needs to be nurtured without undue delay so that she is able to derive a full measure and benefit from it in the mid to longterm.

6. The evidence adduced in these proceedings of the recent non-compliance with the orders made with the mother’s consent in June 2015 is somewhat alarming.  By reference to the father’s affidavit, the following facts emerge. 

7. On 17 June 2015, the father telephoned the mother’s home to speak with the child.  During his conversation with the child M said to him:

   “I hate you”

   “You ruined my life”

   “You’re not my dad”

   “You’re a bully”

8. On 24 June 2015, the father telephoned the mother’s home to speak with the child, but his telephone call went unanswered. 

9. On 1 July 2015, the father telephoned the mother’s home to speak with the child and his call went unanswered. 

10. On 9 July 2015, the father’s telephone call to the mother’s home again went unanswered.

11. On 13 July 2015, the father made contact with the T Town Children’s Contact Service to follow up on the intake assessment for the child and to confirm the impending visit on 18 July 2015.  A staff member of the contact centre told the father “We have had no contact from the mother”. 

12. The mother contended that she had, in fact, complied with her obligations to complete all intake assessments at the contact centre.  She deposed in her affidavit that on 12 June 2015, within six days of the orders, she contacted the contact centre and she annexed to her affidavit a screenshot from her mobile telephone verifying her contact, or attempt at contact, with the contact centre on that date.  If she did, in fact, establish contact with the contact centre rather than merely leaving a message, it is somewhat puzzling why a month later on 13 July 2015 the father was informed by staff of the contact centre they had received no contact from the mother.   

13. Nevertheless, there were subsequent visits achieved between the child and the father at the contact centre, though those visits were far from regular.

14. To resume the chronological narrative, on 15 July 2015 the father telephoned the home of the mother and was able to speak with the child.  During the conversation on that occasion the child said to the father “I don’t like you.  I never want to see you”.  The father asked the child whether she had had fun with him at a venue on a prior occasion and the child said that she did not.  The father found her response puzzling, because he felt that his former visit with the child at that venue was “generally positive” and that the child “positively engaged” with him during that visit.

15. On Saturday, 18 July 2015, the father met with the child at the contact centre.  He encouraged her to accompany him to a nearby park for lunch, but the child said to him “No.  I’m not leaving with you”. 

16. At a subsequent visit at the contact centre, on 19 July 2015, the father was advised the child would not leave the mother and the child was expressing a wish that she did not want to leave the contact centre with the father, as the orders provided.  As a consequence, the child did not visit the father at all that day.

17. On 29 July 2015, the father telephoned the mother’s home to speak with the child and he had a short conversation with her on that occasion, but during their conversation the child said to the father “I don’t want to talk to you and you’re a bully” and “You’re telling me what to do on the weekend and I don’t want to go near you ever again.  I’m not going to see you at the contact centre again”.  She also told the father that she wanted to “stay home now with mummy and daddy”.  The reference to the person “daddy” in that conversation was a reference to the mother’s current partner, not the father.

18. On 1 August 2015, the father attended the contact centre for another visit but was advised the child would not leave the mother and that the child was expressing a wish not to leave the contact centre with him.  Again, the child did not visit with the father at all that day. 

19. On 2 August 2015, the father again arrived at the contact centre.  Again he was advised that the child would not leave the mother and that the child was expressing a desire not to leave the contact centre in the company of the father and so, again, they spent no time together that day.

20. On 12 August 2015, the father telephoned the mother’s home to speak with the child and on that occasion they had conversation to the following effect:

    Child:            “You wrecked my life”. 

    Father:          “How did I do that”? 

    Child: “By getting me to go into town and I don’t like town, and I   don’t like you.  You’re a bully”. 

    Father:          “Why don’t you want to go there”? 

    Child: “Because I don’t like you and you’re a bully and you hurt my mum once and that is not nice”. 

    Father:           “Oh, I didn’t hurt anyone”. 

    Child:            “Yes, you did when I was a baby”. 

    Child “…yeah, and you wrecked my life and you’re not my dad which you always tell me”.

21. On 15 August 2015, the father again attended the contact centre but was advised the child would not leave the mother and was expressing a desire not to leave the contact centre with him and, as a consequence, the child and he did not spend time together that day. 

22. On 16 August 2015, the same scenario eventuated.

1. The point had been reached by then where the orders made in June 2015 were well and truly failing. 

2. The parties spoke with one another on 19 August 2015 about the problem.  During that conversation the following comments were exchanged:

   Mother:         “So what do you want me to do, [Mr Ridley]”? 

   Father: “Well, I want you to come to any appointments that I make with a psychologist with the child”. 

   Mother: “No.  It’s got nothing to do…it’s a five year old little girl. She doesn’t want to see you.  You’re pushing and pushing and pushing at her.  You are going to break her.  You are going to do more damage than any good could come of it”. 

3. Unsurprisingly, the father reached the following conclusion, to which he deposed in his affidavit:

   I am concerned that the mother is attempting to alienate my relationship with the child and align the child against me.  I am concerned that the mother is coaching the child on what to say to me during telephone conversations which are affecting my time with the child.

4. The mother has a quite different perception to the problem from the father.  She deposed:

   I believe I have made a genuine attempt at making the child available for contact and that I have taken all reasonable steps to ensure the child spend time with [Mr Ridley] [sic].

   She also deposed:

   I do not believe I am alienating the child.  I have worked hard to make the orders work.  The child is still refusing to spend time with the father, even with support and encouragement from me.  I am concerned as to the effect on the child if she is pushed and pushed to spend time with the father.

5. The mother plainly acknowledges the need for the child to have a positive relationship with the father.  She deposed in her affidavit:

   I am seeking as final orders that the child spend time with [Mr Ridley] when she is ready to do so.

6. The problem is, that is unlikely to ever happen unless there is a dramatic change to current circumstances. 

7. Although the evidence is so far untested, the probable inference arises that the child feels conflicted loyalties to her parents and is attuned to the mother’s adverse sentiment about the father.

8. The mother was counselled in the ex tempore reasons delivered in judgment in December 2014 not to let the child call the father by his Christian name and to stop the child from referring to her current partner as “dad”. 

9. The following comments were made in those reasons:

   39.One concerning aspect of the evidence is that the child has been encouraged or at least permitted to refer to the mother’s partner as “daddy”.  The father is often referred to by the child, the mother and the mother’s partner by his Christian name “…”.  The family consultant opined that every child needs to be aware of their accurate identity and it is beneficial for children to have such awareness as early as possible in their lives.  In her opinion, given the child’s lack of certainty about her paternity, it is important that the child is now assisted to acquire clarity about the father’s accurate role in her life as soon as possible.

   40.The family consultant was also concerned the child had been “made aware of adult issues” by the mother, which the family consultant felt had “clearly impacted on her capacity to feel completely comfortable in her relationship with the father”.  In light of those unchallenged opinions, it seems important that the child’s valuable and significant relationship with the father should be promoted.

10. The evidence adduced suggests the mother has not heeded that warning.  In her own affidavit the mother deposed to saying to the child, in reference to the father:

    You could tell [Mr Ridley] about your horse, [B], and maybe go for a drive and find a horse that looks like [B].

    and:

    Go in and show [Mr Ridley] you picture [sic].

    and:

    Perhaps [Mr Ridley] can finish it off with you.

11. It is clear the mother is still referring to the father by his Christian name in discussion about him with the child.

12. The mother also deposed in her affidavit as follows:

    When it comes to time with [Mr Ridley], I do not say to the child, “It is up to you, sweetheart”.

13. Whether or not that is true, it seems more than likely the child feels as though she is placed in a position where she must choose to endorse one filial relationship in preference to the other – perhaps even abandon the other filial relationship. 

14. The mother deposed she has never said to the child that she does not want her to see the father and she deposed to her honest belief that she has always tried to encourage the child to see the father.  It might be so, but it is difficult to accept those propositions without reservation, as some of the tendered exhibits imply otherwise.

15. Exhibit ICL1 demonstrates that in April 2015 the mother asserted to the staff of the child’s school that the new surname should be used in lieu of “Ridley” for the child, notwithstanding the child’s surname is “Ridley”.  The new surname is the mother’s maiden name and is the name she has adopted since her separation from the father. 

16. Exhibit F4 demonstrates that in May 2015 the child was well aware of the conflict between her parents.  On 6 May 2015, the child told a staff member that she was aware the father had “hit my mum”.  The staff member asked the child if she had witnessed that incident and the child responded “No.  My mum told me that”, which is suggestive of the mother’s involvement of the child in the conflict between the parties.

17. Exhibit ICL2 demonstrated that in June 2015 the mother, or some person at her direction, informed staff at the child’s school that the child was to be referred to by the mother’s maiden name. 

18. Exhibit F1 demonstrated that in July 2015 at the contact centre, the child stated to a staff member that she had seen “[Mr Ridley] punch her mum”.  The notes of the contact centre staff indicate that the child referred to the father by his Christian name and she added “He’s not my dad.  My dad is in the waiting room with my mum”. Such sentiments expressed by the child at the contact centre, in circumstances where she must have known she was about to visit with the father, are suggestive of her being influenced to make critical remarks about the father. She had not been dissuaded from referring to him by his Christian name.

19. Exhibit F3 demonstrates that in August 2015 staff at the contact centre felt the need to implore the mother to “actively and verbally encourage the child to spend time with the father”.  I draw the obvious inference that the staff of the contact centre felt she was not doing enough to support implementation of the orders.

20. Importantly, it was conceded by the mother during submissions that the child has uneventfully spent unsupervised, overnight time with the father on a couple of occasions over the last couple of weeks.  Clearly enough, the mother has been able to make that happen. The inference is available that occurred because the mother was fearful of the repercussions today if her non-compliance with the existing orders was perpetuated.  The fact the mother has recently been able to successfully encourage the child to spend unsupervised and overnight time with the father tends to demonstrate that her past failures to do so are without reasonable excuse.

21. The evidence suggests the child’s relationship with the father will wither to nothing if no changes are made to the current predicament.  The best hope for the child’s retention of meaningful relationships with both parties is for her to live, at least temporarily, with the father and to have respite from the mother’s actual or perceived influence.

Best Interests – Additional Considerations

1. Other than the allegedly deficient attitude of the mother towards retention and promotion of the child’s relationship with the father, no other factors under s 60CC(3) of the Act were addressed by the parties as relevant to the outcome of today’s proceedings.

Parental Responsibility

1. The mother alleged historical family violence committed against her by the father. I make no finding about it as that evidence is as yet untested. In such circumstances, I cannot be satisfied, pursuant to s 61DA(2) of the Act, that there are reasonable grounds to believe the father engaged in abuse or family violence and so the presumption of equal shared parental responsibility is not rendered inapplicable.

2. However, s 61DA(3) of the Act provides that when the Court is making an interim order the presumption of equal shared parental responsibility applies unless the court considers it would not be appropriate in the circumstances for it to be applied. I so find that it is not appropriate for the presumption to be applied.

3. It seems abundantly clear that the parties’ antipathy prevents them from exercising equal shared parental responsibility and, since I have determined the child should temporarily live with the father, I intend to make no order as to the allocation of parental responsibility, which will lie with the parties as provided by s 61C of the Act.

Residence

1. With no order made for the allocation of equal shared parental responsibility,

   
   

   s 65DAA of the Act is not engaged.

2. For reasons already canvassed, the child should live, at least temporarily, with the father.  An order is made to that effect, but supplemented by other orders that require, firstly, the provision of a report by a family consultant about the nature and quality of the child’s relationship with the father and the extent to which the child derives benefit from that relationship and the capacity of the mother to support and promote the relationship between the child and the father, and secondly, review of the interim orders as soon as possible thereafter, which will occur on Thursday 10 December 2015.

3. The child will not spend time or communicate with the mother in the meantime, unless the father exercises parental responsibility to allow it.  He will be the judge of that, depending upon the manner in which the child settles with him over the coming days and weeks. 

4. When the parties and child present to the family consultant on 30 November 2015, the child will be seen with the parties by the family consultant, free from any influence of the mother or members of the extended maternal family.  The family consultant’s opinion about the quality of the child’s relationship with the father is then more likely to be accurate and reliable.

5. For those reasons I make the interim orders pronounced a short time ago. 

6. In addition I adjourn the father’s Application-Contravention to the same date for further procedural directions and I note that the substantive proceedings are next before the registrar on 20 November 2015 for further procedural directions.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on

13 November 2015.

Associate: 

Date:  23 November 2015