Roberts and Waters

[2011] FamCA 493

FAMILY COURT OF AUSTRALIA

ROBERTS & WATERS [2011] FamCA 493

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Ms Roberts

RESPONDENT: Mr Waters

INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

FILE NUMBER: PAC 2983 of 2009

DATE DELIVERED: 9 June 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan J

HEARING DATE: 9 June 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr B. Mackay,
Bell Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stanford,

Stanfords Solicitors

Orders

1. That these proceedings are adjourned to 10am 8 August 2011 before

   
   

   Justice Loughnan.

1. That leave is granted to each party to attend on the adjourned date by telephone provided they give notice to the Court and the other party.

Notations:

A.That unless advised to the contrary the Court will attempt to telephone the father some time on the morning of 8 August 2011 on the mobile number provided in his Notice of Address for Service filed 2 June 2011.

B.That the purpose of the listing on 8 August 2011 is to ascertain whether the father wishes to continue in the proceedings. If he does the Court is likely to order that there be a Chapter 15 expert, to request Legal Aid NSW make arrangements for the appointment of that expert and to adjourn the matter to a date after the provision of the expert report for fixing the matter for final hearing.

C.That the reasons for judgment given this day will be taken out.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC 2983 of 2009

Ms Roberts

Applicant

And

Mr Waters

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, B who is three years of age.  The matter has been on foot for too long. The proceedings started in June 2009, and it has taken since then for the matter to get to the stage of a final trial.  The matter was listed for the first date of the less adversarial trial in February and for some reason there was no appearance for the father. The matter was adjourned to today’s date.

2. Today, both parties appeared and the mother was represented.  The issue is a relatively and deceptively simple one. B lives with the mother, spends day only time with his father and the handovers are supervised.  The father is anxious for overnight time with his son to commence straight away and the mother is concerned about the commencing overnight time, in part because the father now lives further away, having moved to Canberra. She has concerns in relation to that distance itself, the problems that the parties have in communicating and conflict being exaggerated because of the distance. I gather that the mother is also worried about the extra travel if the child has to come back to her during a visit.

3. These are not insurmountable issues. I gather that prior to the father’s move, the parties lived an hour apart and are now two and a half hours apart.

4. I intended to make orders today for B’s lawyer to make inquiries of the Legal Aid Commission about the appointment of a Forensic Psychologist or Psychiatrist, to prepare a family report which would include a mental health assessment of the father and the mother.  That is relevant because the father says that - and I don’t mean to be offensive about this - perhaps because of things in the mother’s past, she is set against promoting the relationship between the child and the father and will never be happy about that relationship. For her part the mother says she is concerned about the father being angry and upset and the impact that might have on the child.  She also has peripheral concerns about the physical circumstances of the new household. They are not insurmountable problems.

5. Thus the first issue is to have a report provided.  The parties are not likely to be able to afford to contribute to that exercise, therefore there is a question of Legal Aid funding.  It was suggested by Ms C, who saw the parties a couple of years ago as Family Consultant, that perhaps a halfway house would be for each of the parties to obtain a mental health assessment from their own Psychiatrist or an assessment from a jointly consulted Psychiatrist. That could be supplemented with a Family Report by her or by another Family Consultant. The answer to the question about legal aid funding will take a few weeks. I was intending to allow that process to occur, to make consequential orders assuming that funding is available and allow the parties to relist if that did not eventuate.

6. The father spoke passionately today about his frustration over the two years that the matter has taken to get to this stage. He is sure that the problems are all the fault of the mother and nothing that he has ever done could have contributed to them.

7. During the hearing today the father left the courtroom saying that he wants to sign the child over to the mother and not take any part in the proceedings.  Sometimes people say things that they don’t really mean. I gather that the child has a nice interaction with the father now and that comes in circumstances where the early contact was difficult. When Ms C saw the parties in 2009 the boy reacted strangely to the father. It sounds like they have a good relationship now. 

8. That suggests that it would be in the boy’s interest to have a proper relationship with the father. The father says that he now lives two and a half hours away and he can’t keep making trips to Sydney and staying overnight while providing anything for the boy. The father opposes the current child support assessment and even with the help of his partner has been unable to navigate the departure process. I can understand why he would be frustrated and upset. I gather from what he said to me today that he is not a person of great sophistication and so the management of the paperwork is a real problem for him.

9. So I really don’t know where the matter is heading today. I have indicated to the parties that I will adjourn the case to a date in August, just to find out whether the father wants to continue or not. From my point of view it would be a poor outcome if he just walks away. I accept that it might be that at this stage he cannot cope with the financial and other pressures.  He told me that he is on workers compensation leave from his work and it might be that it is all too much. Things might improve and he might he able to take up the proceedings again.  I suppose a good thing about it is, the door is never completely shut in relation to children’s arrangements.  B will get older.  The controversy about when he starts having overnight time will diminish as he gets older and more mature and more capable of telling his parents what he wants and how he feels about their conflict and is more capable of self protection. Eventually the current issues won’t be such a problem. For example the distance between Canberra and Sydney will be an irritation rather than something that is a real problem.

10. That is a long-winded way of saying, even if the father does pull out now there is no reason why he can’t, when he is in a position to do so, come back and say to the court, “Well, now I do want to take part in the proceedings and play a greater part in B’s life.” The mother is on the record today saying she wants there to be a relationship between the father and the child.  It may be, as he says, that she wants the opposite, but if so, she is on record today saying she supports their relationship. That is a child-focused, sensible, understandable and proper attitude.

11. I am disquieted by what has happened today.  The father’s partner is in court today. I will take out these reasons for the assistance of the parties, and particularly of the father. In that way he can have a think about it. I will give him leave to attend by phone on 8 August.

12. The purpose of the listing on that date is to ascertain whether the father wishes to continue in the proceedings.  If he does, the Court is likely to order that there be a Chapter 15 expert; to request the Legal Aid Commission to make arrangements for the appointment of that expert;  to order that the matter would be adjourned after the provision of the expert’s report for fixing the matter for final trial.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 June 2011.

Associate:     

Date:              28 June 2011