RORY & ASHCROFT

[2012] FamCA 705

FAMILY COURT OF AUSTRALIA

RORY & ASHCROFT [2012] FamCA 705

FAMILY LAW – CHILDREN - Interim Orders - Where the Mother voluntarily placed the child into the Father's care in March of this year - Where the Mother is now requesting that the child be returned to her care - Where the Father proposes the Mother only have time with the child on one day each alternate weekend - Where the Father makes adverse allegations regarding the Mother's mental health

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Rory

RESPONDENT: Ms Ashcroft

INDEPENDENT CHILDREN’S LAWYER: Ms Wallace

FILE NUMBER: TVC 396 of 2008

DATE DELIVERED: 21 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 August 2012

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McDonald Leong Solicitors

Orders Until Further Order

1. The child, K, born … April 2008 (“the child”), live with the Mother.

2. The child spend time with the Father every second weekend from Friday afternoon to Monday morning, with the changeovers to occur at the child’s daycare centre.

3. The child is to spend every Wednesday night with the Father, with the Father collecting the child from daycare on Wednesday afternoons and returning him to daycare on Thursday mornings.

4. The parents have equal shared parental responsibility for the child, and in the event that they are unable to agree upon a decision on a major long-term issue, they are to attend a Family Relationships Centre for a mediation in relation to such issue.

5. From the time the child commences formal schooling, he spend time with the parents on a week about basis during the Easter, June-July and September-October school holiday periods.

6. During the 2012 Christmas school holidays, the child spend block time with the Father, provided that the Father is able to take time off from work. In the event the Father is unable to take holidays at this time, then the child is to spend time with his Father in accordance with the term-time arrangements referred to.

7. The parties are to communicate only through a communications book, handed over each week at the daycare centre. Neither party shall use the communication book as a means of denigration or threats to the other parent.

8. Neither parent will contact the child during the time that he spends with the other parent in accordance with these Orders.

9. Neither party is to communicate with the other other than through the communication book except in cases of medical emergency, in which case it is appropriate to either telephone or text the other parent.

10. At changeover, the parent not collecting the child is not permitted to attend the daycare centre or to be anywhere in the vicinity of the daycare centre at changeover time.

11. Each parent will organise activities for the child which will occur during their time only.

12. The Mother is to attend, as a condition of these parenting Orders, counselling for issues relating to domestic violence and is to contact a counsellor within two (2) weeks of the date of these Orders and further is to provide evidence of attending at such counselling to the Independent Children’s Lawyer within three (3) months of the date of these Orders.

13. The Father is to make enquiries with the North Queensland Domestic Violence Resource Service in relation to participation at the MENTER and Safe Dads programmes within two (2) weeks of the date of these Orders, and further must provide evidence of his attendance at and completion of such programmes to the Independent Children’s Lawyer within three (3) months of the date of these Orders.

14. The parties attend for an assessment as requested by the Independent Children’s Lawyer.

15. The matter be adjourned to a hearing before a Registrar for the making of the usual directions for trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rory & Ashcroft 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 BRISBANE

FILE NUMBER: TVC 396 of 2008

Mr Rory

Applicant

And

Ms Ashcroft

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are interim parenting proceedings concerning the child, K, born in April 2008 (“the child”), who is thus four years and four months of age.

2. The Applicant Father and the Respondent Mother commenced a relationship in or about January or February 2007, commenced living together in about April 2007 and finally separated in November 2007. K is the only child of that relationship, and as already noted, the child was born in April 2008, some months after the parties had finally separated.

3. The Father has an adult son, T, born July 1993, who lives independently, and the Father has formed a relationship with one Ms G.

4. The Mother has an older child from another relationship, namely C, who was born in November 2000, and thus now eleven years of age. C resides with the Mother.

5. There were final consent Orders made in this matter on 7 December 2010, which relevantly provided for the child to live with his Mother and spend time with the Father every alternate weekend and every Wednesday night until the child commenced primary school, at which time the Orders provided for there to be a change to alternate week time and half school holidays.

6. The matter has an unfortunate history in terms of conflict between the parents.

7. There was a Protection Order made against the Father in January 2009, which expired in February 2010. On the material, there was, on 24 June 2010, another incident as a result of which the Father was charged with common assault of the Mother which led to a fine, that incident occurring at a changeover on 29 October 2009.

8. Thus it would seem on this history, from the time of the child’s birth until March of this year, the child had the experience of residing in the primary care of his mother. However, in March of this year, the Mother elected to leave the child in the Father’s care. She details in her affidavit the circumstances in which that occurred. On her case, it was the product of her being, she would say, unable to cope with a persistent campaign of intimidation and the like from the Father to that point. The matter is addressed in the Mother’s affidavit material, and is also dealt with at some length in the family report provided in this matter by Ms M, a Senior Family Consultant attached to the Court.

9. It would seem that in the period between the Orders being made by consent on 7 December 2010, that there remained disputed issues between the parties concerning the child’s parenting. For example, an issue for the Father was the change of the child’s surname, and there were significant issues concerning the child’s enrolment in daycare centres and the like. I note that despite the parties attending a mediation on 8 March 2012 at a Family Relationships Centre, the parties were unable to resolve their issues.

10. As noted, on 11 March 2012, the child came into the care of the Father, and on 3 April 2012, the Father filed the current application. By that Initiating Application, the Father sought interim Orders for him to have sole responsibility for the child’s care, for the child to reside with him, and for the Father to be responsible for day-to-day decisions concerning the child’s care. The Father sought a specific Order that he have sole responsibility in relation to the child’s school or schooling, his religious upbringing, and his medical treatment. Notably, by his Initiating Application, no specific Orders were sought either on an interim or a final basis by the Father in terms of the child spending any time with his mother.

11. It is the fact that, between the time when the child came into his father’s care in March 2012, he did not spend any time with the Mother, nor was any time or communication, it seems, facilitated by the Father. I made an Order when the matter first came before me when I was sitting in Townsville on 24 July 2012 for the child to spend time with his Mother each Saturday from 8.00 am until 4.00 pm, with changeovers for that time to occur at the Police Station.

12. The Father, who appears on his own behalf today, submits that the Orders sought by him are as per his Initiating Application, save that the time Order I have just referred to he says should be reduced to alternate Saturdays rather than each Saturday.

13. For her part, the Mother supports the Orders that are proposed by the Independent Children’s Lawyer. On 24 July 2012, when I made the Order referred to, I also ordered for the interests of the child to be separately and independently represented in the proceedings, and I made a request for that representation to be provided urgently. I acknowledge the assistance of Legal Aid Queensland in providing such assistance to enable Ms Wallace to be appointed and to be able to appear today.

14. The Independent Children’s Lawyer has provided an Outline of Case which sets out under subparagraph E of that document some fourteen Orders that are sought by the Independent Children’s Lawyer. In essence, the Independent Children’s Lawyer submits that it is appropriate and in the child’s best interests for him to resume living with his mother and for there to be time and communication similar to the provision that was made in the Orders by consent on 7 December 2010. I should note that the Father did support the making of Orders in terms of paragraphs 11 and 12 of that document, in relation to the Mother attending for counselling for issues relating to domestic violence and in respect of the Father in paragraph 12 for him to participate with the North Queensland Domestic Violence Resource Service in relation to his participation in Programs Provided in respect of that issue.

15. On an interim hearing such as this, the Court is obliged, as it is in respect of final Orders made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), to have regard to s 60CA of the Act, which provides that, in deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

16. Obviously, on an interim hearing, there are many issues of disputed fact which cannot be tested in the manner in which they are tested at a trial. In this matter, like many matters, there are conflicting facts, incomplete evidence and an obvious dispute between the parents as to what constitutes Orders in the child’s best interests.

17. In Goode v Goode (2006) FLC 93-286 (“Goode”), the Full Court of this Court set out in paragraph 82 of its judgment, what is involved in determining interim Orders in a case such as this. I have identified the competing proposals of the parties, and in terms of issues in dispute in the interim hearing, the Father submits from the bar table, in support of his Orders, that there are mental health issues in respect of the Mother that require further exploration, and that she ought undergo or comply with treatment for mental health issues. However, I note that in the Father’s affidavit material (he filed an affidavit on 3 April 2012), he does not raise that as an issue, and more fundamentally, he does not advance to the Court any evidence of such an issue despite the contents of the reports of Ms M.

18. I note that Ms M has provided reports on 25 August 2009, 13 August 2010 and, most recently and most relevantly, the report of 20 July 2012. Ms M there details in her report that there is no evidence to substantiate, on the Father’s side, any assertions he makes concerning the Mother’s mental health. It seems to me that the Father has had sufficient opportunity to advance, given the allegation or the factual basis for the allegation, in the period that this matter has been on foot, and, as noted, there is no evidence upon which I could rely to make a finding or a conclusion concerning any issue concerning the Mother’s mental health. I note that in terms of there being any issue about that, it is the fact that the child was in his mother’s primary care from his birth, which was post-separation of the parties, and that remained the position up until March of this year, and in the interim intervening period, the Orders were made by consent on 7 December 2010.

19. It is passing strange if there were significant mental health issues as to the Father consenting to Orders in those terms, and I note that the child came into the care of the Father not because of steps taken by him in any formal sense, but because of the matters earlier referred to in terms of the Mother taking that step herself, she says, not because of any mental health issue on her part, but because she was essentially overborne by the conduct of the Father to that point. Of course, that is an issue that will remain for testing at a trial on full evidence that can be properly tested by cross-examination, but I simply observe that there is no evidence before me upon which I could conclude that the child’s welfare is in any respect in issue as regards any mental health issue of the Mother.

20. In terms of identifying Orders which are in a child’s best interests, the Court applies the considerations set out in s 60CC of the Act. The primary considerations expressed in s 60CC(2) are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

21. Those primary considerations have some resonance here in the sense that, on the history referred to, the child’s experience of his primary care of his mother was interrupted in March 2012, and, as noted by Ms M, it does not seem that the Father demonstrated any significant insight into the need for the child to maintain a relationship with his mother in circumstances where from 9 March 2012 until the Order I made in July, there had not been any contact between the child and the Mother facilitated by the Father.

22. The current Family Report, dated 20 July 2012, is disputed by the Father in many respects in the sense that he asserts that the author of the report, Ms M, demonstrates bias against him, that she did not include all relevant information which he sought to provide and other criticisms that he would wish to make of Ms M’s conclusions.

23. However, it needs to be understood that on an interim hearing such as this, on the untested evidence the Court has, the Court must place significance upon the views and conclusions of an independent expert such as Ms M because there is no way otherwise for the Court to resolve disputed issues of fact. Ms M, as already noted, has been involved with this family over a significant period, and the report I have just referred to is the third Family Report authored by Ms M. Much of the content of that report resonates with the s 60CC considerations to which I am to have regard.

24. It is clear that in terms of Ms M’s observations about the child that he has an attachment to both of his parents, but his primary attachment as assessed by Ms M is to his mother, which is perhaps unsurprising given the history referred to and given the child’s age.

25. The concern the Court must have even at an interim stage, on the history that I have referred to, is whether, in truth, the Father recognises the benefit to the child of having a meaningful relationship with his mother in circumstances where there was a lack of contact between the child and his mother in the period referred to, and even in the Initiating Application filed by the Father, there is no specific Order sought by the Father with respect to the child’s time with his mother.

26. I made the Order I made in July of this year in order to see a resumption of the child’s relationship with his mother, but the Father submits to me today that such time should be further limited by only taking place on alternate Saturdays which, in terms of a four year old boy, is a significant gap between seeing his primary attachment figure as assessed by Ms M.

27. The child is obviously at an age where he is too young in terms of his maturity or level of understanding to express a view which can be given significant weight, but there are concerning statements made by the child in the course of the Family Report, and as confirmed by the Father in terms of what he told the child at the time the child came into his care in March 2012.

28. I have already noted the nature of the relationship of the child with both of his parents, and clearly it is significant that the child was able to maintain a good relationship with his father in circumstances where the parties separated prior to the child’s birth, and it would seem that despite other issues of conflict between them, the Mother did facilitate the relationship between the child and his father. Both parties complain about lack of compliance by the other in terms of the Orders made on 7 December 2010 in some respects, but it is the uncontested evidence of the Mother that at the end of 2011, she moved to reside in Townsville to better facilitate the ability for the child to have time with his father pursuant to those Orders.

29. Ms M records at paragraph 27 of her report that the Father’s proposal for the child’s living arrangements was, “…sole parental responsibility and live with the Father…” When prompted by the report writer as to whether he considered the child should spend any time at all with his mother, the Father said, “…supervised time initially.” When asked why the child’s time with his mother would need to be supervised, the Father said, “…she has a lot of issues. The child is subject to minor violence. She reefed his arm and hurt his shoulders.”

30. I note at this point that there is no evidence before me of the Mother presenting any risk to the child in terms of violence, but the point here made is that Ms M needed to prompt the Father in terms of whether there was value to the child in terms of a relationship with his mother, and that is of concern, even at this interim stage.

31. I should note that at the time the Mother handed the child into the care of the Father, she wrote him a note saying as follows:

    The items you see here are [the child]’s. Please take them for him as you now have [the child] in your care. [The mother].

    P.S. If you are looking for someone to blame, look in the mirror. The way you treat me is now over. [The child] is yours to take care of. You will see how hard it is to raise a child. Unlike you with your standover tactics, I will step aside. I will not threaten or tell you how badly you are doing. [The child] will be your responsibility. Mummy will always love you, my darling [the child], more than the sun, moon and stars.

32. The Father points to the event of the handover as the Mother, “…abandoning…” the child. Whilst again that is a matter for assessment at trial, it seems to me that on the evidence of the Mother provided to the Court, which I note is not contested by the Father in terms of any response affidavit, the note can be explained by reference to the Mother’s material as to her sense of frustration at the point that she reached against the background to which I have referred.

33. In terms of the nature of the child’s relationships, it is clear on the current report that Ms M assessed a good relationship between the child and both of his parents. For example, at paragraph 51 of her report, Ms M sets out her observations of the child with his father and that those observations led to her making the assessment that it was clear that the Father and the child had a warm and loving relationship, and I have no reason to doubt that that is so.

34. Likewise, Ms M made observations of the child with his mother, and those observations are set out at paragraph 54 and following. Notably, Ms M formed the assessment that I have earlier referred to that the child’s primary attachment figure is his mother.

1. Ms M has provided, under the heading of “Evaluation” commencing at paragraph 59, a very detailed assessment which resonates with many of the s 60CC(3) additional considerations. Notably, she assessed the potential effects upon the child at four years of age of the experience of recurrent parental conflict as he has experienced for his whole life. Ms M has assessed that this places the child at risk of a disruption of the organisation of his emotional experience, and an interruption of his attachment processes to both of his parents.

2. Interpolating from that, it is clear that while the child has maintained a meaningful relationship with both of his parents to this point, Ms M is foreshadowing the very real prospect that if conflict continues between the parents and the child has the experience of that conflict, there may well be an interruption to his attachment processes that currently exist. Notably, Ms M assessed that disruption in those processes can lead to relevant impairments in the child in terms of his development.

3. Ms M assessed at paragraph 76 of her report, as she had previously assessed of the Father, that he continues to display a high degree of covert and overt hostility towards, and a pervasive mistrust of, the Mother. Ms M noted that it was in keeping with this view that the Father proposed living arrangements for the child that did not involve any time with his mother. Ms M assessed that the Father, “…can see little value for the child in maintaining a relationship with his mother.”

4. I am satisfied on the evidence before me that it is more likely than not that the child will be able to maintain a relationship with both of his parents at an interim stage pending a final hearing of these proceedings if he is in the primary care of his mother, as is the contention of the Independent Children’s Lawyer.

5. The Orders sought by the Independent Children’s Lawyer include, in accordance with the presumption in s 61DA, that the parents have equal shared parental responsibility. I am satisfied that it would be in the child’s best interests at this interim stage for the parents to have equal shared parental responsibility, particularly against the background of issues concerning the child’s attendance at preschool or preparatory school. It is relevant that both parents have a role to play in terms of the child’s attendance for his formal schooling, and an Order for equal shared parental responsibility will facilitate that.

6. In terms of an Order for equal shared parental responsibility, as Goode highlights, it is necessary for the Court to consider equal time and, alternatively, substantial and significant time, in terms of Orders in the child’s best interests.

7. Neither parent sought at this stage an Order for equal time or any week about arrangement, nor did the Independent Children’s Lawyer seek such an Order. Indeed, such an Order is not consistent with the assessment made by Ms M set out in paragraph 74 of her most recent report, which is, “From a developmental perspective, it is recommended that a child of four years old should remain with the primary parent the majority of the time. Two to three consecutive overnights with the other parent will usually be well tolerated, as would an occasional week-long holiday.”

8. Quite apart from the child’s age, the issues that I have referred to in terms of the extent of his observation or capacity to observe the conflict between the parties is also a relevant consideration.

9. I am satisfied that Orders in line with the Orders sought by the Independent Children’s Lawyer, whom I note has a statutory obligation to separately represent the child’s best interests rather than agitate the case of either parent, would be Orders which are in the child’s best interests and consistent with the relevant considerations I have referred to pursuant to s 60CC of the Act.

10. I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 August 2012.

Associate: 

Date:  22 August 2012