ROMAN & FRYE

[2021] FamCA 656

FAMILY COURT OF AUSTRALIA

ROMAN & FRYE [2021] FamCA 656

FAMILY LAW – CHILDREN – Interim hearing as to parenting arrangements for the child – Where the child has previously been diagnosed as being on the autism spectrum – Where despite her day to day challenges the child has spent majority of the Court ordered time with her father – Where the mother asserts the child is returning home at the conclusion of the time spending and exhibiting difficult behaviours and is “unrecognisable” – Where the mother seeks a significant reduction in the child’s time with the father – Where the Court cannot be satisfied on the evidence that such a reduction is in the child’s best interests – Where it was submitted that it may be beneficial to have the child’s dog attend on the weekends where the child is in the care of the father – Orders made continuing the time spending arrangement noting that the child’s dog will be delivered up for that purpose by the mother and returned to the mother at the conclusion of the child’s time with her father.

APPLICANT: Mr Roman

RESPONDENT: Ms Frye

INDEPENDENT CHILDREN’S LAWYER: Ryder Family Law

FILE NUMBER: ADC 2009 of 2017

DATE DELIVERED: 14 May 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 14 May 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Kate Chisholm Family Lawyer

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Adelta Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Upon Noting That

The parties are agreed that X’s dog Z will accompany her on the weekends she spends with her father pursuant to these orders and that such an outcome would be achieved by way of the father’s partner Ms E collecting Z from the mother or her agent from F Cafe at 4.00 pm on each alternate Friday during school term times commencing 21 May 2021 and be returned to the mother by the father at the conclusion of X’s time with him and shall also accompany X during the July school holiday time with her father.

Orders

1. That paragraphs 3, 6 and 7 of the order of 14 December 2020 do continue until further order SAVE AND EXCEPT that the conclusion time in paragraph 3(a) shall be 2.00 pm.

2. That in addition to the time referred to in paragraph 1 hereof X spend time with her father during the July 2021 school holiday period as follows:

   (a)from the conclusion of school on 2 July 2021 to 10.00 am on 6 July 2021; and

   (b)from 3.00 pm on 14 July 2021 to 10.00 am on 18 July 2021.

3. That on or before 30 August 2021 each party file and serve one (1) affidavit only not to exceed five (5) pages in length as to the progress of X’s time with her father.

4. Directions be adjourned 6 September 2021 at 9.15 am.

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 Roman & Frye 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 ADELAIDE

FILE NUMBER: ADC 2009 of 2017

MR ROMAN

Applicant

And

MS FRYE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes back before the Court today with respect to arrangements for X’s time with each of her parents.  I do not want to repeat at any length the history of the matter.  I did so before making orders in December.

2. We are really back here to see what is happening with X’s time with her father.  It has, in the main, progressed in accordance with the orders.  It is common ground that on four occasions X has gone home early and I am pleased that that has occurred.  I am hopeful that it gives the mother confidence that the father listens to X and actually when things are out of control and where she cannot be settled – and I see both parties have had advice from Ms B as to means by which they can help X calm and settle her emotions – that they are being listened to and home she has gone, and that will inevitably happen from time to time in this matter.

3. X has challenges.  She has been diagnosed as being on the autism spectrum.  I understand that she is more properly described as being on the high-functioning end of the autism spectrum, but that spectrum is hard for children.  It is hard for them to adjust to changes.  It is hard for them to really cope with the normal day-to-day exigencies of life, if you like, and it is a challenge that will follow her throughout her life.

4. What I am perfectly satisfied about is that we have two parents who love X;  that there is nothing in the file that I have seen to date that would suggest that X should not have a meaningful relationship with each of her parents and, in fact, with her particular challenges that she faces, the reality is that the more people who have a close relationship with X and help her the better.

5. The mother was anxious to very, very significantly curtail the time that X spend with the father.  Having read in detail each of the affidavits filed most recently by the parties, the father on 7 May and the mother on 11 May, I am impressed about both of them seeking assistance from Ms B in terms of helping X.  I am concerned that the mother’s solution to the problems is a reduction in X’s time with the father, which is how this matter came to develop over a period of time in any event.  but I am not satisfied that X’s complaints really go to the issue of the father’s care, but, rather, what seems to be – and this is certainly relayed by X to Ms B – the issue of being in control of her life.  To some extent that is understandable, but X is only 10 and a half.

6. As I say, she has the challenges to which I have already referred but even with those challenges it is important for X to understand that she cannot always be in control of her life.  If she does not learn that lesson now, things will only get worse for her when she becomes a teenager and then an adult when things will happen in life that she simply cannot control.  If the parties keep working with Ms B and taking on board the advice she gives to each of them about how best to assist X in self-regulating, I am sure that will be to her benefit.

7. Ms Lewis came up with the idea of how things worked better when Z, the dog, went with X.  I am very pleased, having sent the parties out to discuss how we could get Z to the father’s house on weekends, that a solution has been arrived at and I am quite satisfied that that, at the very least, will help.  Whether it fixes things is a moot point, but it will, I suspect, certainly give a greater degree of familiarity to X in the household.  One can only hope that the dog and the cat do not fight.

8. I am going to continue the order as it currently is.  I am going to make the school holiday order.  I would ask, Ms Lewis, that your client be absolutely clear about what food Z is to have – not eat the cat food – and if Z has any special dietary requirements then Z needs to have whatever his or her dietary requirements are because this should be an enjoyable time for Z as well as everybody else.  I will bring the matter back, after the July holidays, perhaps in late August.

9. Ms Lewis, at the commencement of her submissions, pressed for the contravention application that is lying on the file to be listed for hearing.  I am not prepared to do that.  I think there is – I see that as being no solution, quite frankly, to a complicated problem.

10. All that a contravention application does is give one party or the other the satisfaction of a finding that the other party had not done what they were supposed to do. The penalty that is usually imposed is to enter into a good behaviour bond to comply with orders of the Court.  That actually does not work terribly well with children who have special needs, because it has the potential to punish children as opposed to punish – for want of a better word – the parties.  What is needed is a more constructive way forward.

11. I am also concerned that the mother, having entered into a consent order for whatever reason when the matter was before Judge Heffernan in July 2019 to attend upon counsellor Ms C with respect to assistance with her level of anxiety, in fact never saw Ms C again.

12. In the latter half of 2020 – over 12 months later – she attended upon Dr D, a psychologist, and has not attended for a further three appointments this year, apparently due to commitments for X.  Again, that seems to me to be a convenient explanation as to why the mother has not attended.  It does not indicate a genuine desire to actually work through the issues so that she is in a better position to assist X with the challenges she has.

13. I am not going to make any orders for her to attend upon a psychologist or a counsellor because, quite frankly, they are often regarded by people in this Court as hoops to jump through to get to the next stage of proceedings.

14. If, however, when I come back next time, I find a report on the file from the mother’s psychologist indicating that the therapy is not just to deal with the mother’s panic attacks and the impacts of trauma, but is a wider ranging therapeutic intervention to assist her to support X – which was clearly the intention of the order of 30 July 2019 – that will be a matter that will impress me.  It will indicate that the mother has had the insight to see what positive steps she can make.  Ongoing criticism does not solve X’s problems.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 14 May 2021.

Associate:

Date:  4 May 2022