Seiler and Vogler (No 2)
[2014] FamCA 1092
•5 December 2014
FAMILY COURT OF AUSTRALIA
| SEILER & VOGLER (NO 2) | [2014] FamCA 1092 |
| FAMILY LAW – CHILDREN – with whom a child spends time with – interim orders – where mother seeks an extension of time with the children – children currently living with father and spending supervised time with the mother – best interests of the children – need to maintain a meaningful relationship to be balanced against high level of anxiety shown by children – orders made providing mother with limited overnight time on alternate weekends. |
| Family Law Act 1975 (Cth) s 60CC |
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Seiler |
| RESPONDENT: | Mr Vogler |
| INDEPENDENT CHILDREN’S LAWYER: | Alderman Redman Lawyers and Mediators |
| FILE NUMBER: | ADC | 3201 | of | 2009 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 24 November 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | The Family Law Project |
| COUNSEL FOR THE RESPONDENT: | Ms Hurley |
| SOLICITOR FOR THE RESPONDENT: | Barnes Brinsley Shaw Lawyers | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Alderman Redman Lawyers & Mediators |
Orders
That the children J born … 2002 and L born … 2004 spend time with the mother as follows:-
(a) Each alternate weekend from 10am Saturday to 5pm Sunday;
(b) From 2pm on 25 December 2014 to 5pm on 26 December 2014;
(c)That paragraph 1 (a) of the these orders shall be suspended for the month of January 2015 and without altering the rotation, the children will spend time with the mother from 10am Saturday until 10am on the following Monday of each alternate weekend;
(d) Such further and other times as the parties may agree.
That the handover of the children shall occur with the mother collecting the children at the commencement of her time with them from the location of J’s sports matches or at M Restaurant, Suburb N in the event that J is not playing sport, with the father to collect the children from the mother’s home at the conclusion of their time with the mother.
That the parties do all things necessary to enable J to continue to consult with Ms C of O Psychology at such dates and times as recommended by Ms C.
That the parties are otherwise restrained and an injunction is granted restraining each of them from taking the children to any psychologist, counsellor or therapist other than as provided for herein, save as may be the subject of agreement between the parties.
That the interim proceedings do stand dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seiler & Vogler 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 |
FILE NUMBER: ADC 3201 of 2009
| Ms Seiler |
Applicant
And
| Mr Vogler |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 13 June 2014 I delivered extensive reasons in respect of interim proceedings arising from the Amended Initiating Application of the mother Ms Seiler filed 19 November 2013 and the Response of the father Mr Vogler filed 9 May 2014. The issues before the Court involve J born in 2002 and L born in 2004 (“the children”).
Leading up to the hearing the parties generally agree that there was resistance on the part of the children spending meaningful time with the mother. The parties have opposing views as to the basis for the children’s apparent reluctance to see their mother.
Orders were made on 13 June 2014 which provided for the children to attend upon a child psychologist for therapeutic intervention, with the focus of such therapy to:-
(a)Create a healthy parent and child relationship with the mother;
(b)To ameliorate any distress and/or anxiety occasioned by the children;
(c)To reinforce with the children:-
(i)That neither of them is at risk of harm from the mother;
(ii)That they are not at risk of being removed from the care of the father;
(iii)That they will not be physically disciplined or be the subject of any inappropriate conduct by the mother; and
(iv)To explain the import and effect of this order.
The therapeutic intervention was to be completed within a short compass and thereafter the children would spend time with the mother as follows:-
(a)Each Wednesday from the conclusion of school to 7.30pm;
(b)On each alternate Saturday from 10am to 5pm;
(c)Such further or other times as the parties may agree.
The time spent with the mother was to be initially the subject of supervision by her partner Mr R.
It was intended that there be a period of time to enable the therapeutic intervention to take effect and if successful, the restoration of the relationship between the mother and the children.
The orders specifically provided for the mother to have liberty to bring an application on or after 20 September 2014 seeking an increase in time that the children spend with her.
By Application in a Case filed 29 October 2014, the mother seeks the following orders:-
(1)That the children [J] born … 2002 and [L] born … 2004 spend time with the applicant mother as follows:-
(a)Each Wednesday from the conclusion of school until 7.30pm;
(b)Each alternate week from the conclusion of school Friday until the commencement of school the following Monday;
(c)For one half of each school holiday period;
(d)Such further or other times as the parties may agree.
The father filed a Response on 19 November 2014 seeking that other than the Wednesday time, the balance of the mother’s application be dismissed and in lieu thereof the following orders to apply:-
(1)That the children spend the time with the mother as follows:-
(a)Each Wednesday from the conclusion of school until 7.30pm;
(b)Each alternate Saturday from 10am to 5pm;
(c)Such further and other times as the parties may agree.
Additionally, the father’s response provided for arrangements in respect of handover and importantly, the further consultation between J and Ms C.
BACKGROUND
I rely upon but do not intend to repeat the history as set out in my reasons delivered 13 June 2014.
The mother’s application is supported by her affidavit filed 29 October 2014. The mother admits to a somewhat faltering start in that whilst her first visit with her children took place on 16 July 2014, there was a misunderstanding on her part and she failed to collect the children from school on the second occasion namely, 23 July 2014.
Thereafter, the mother asserts that she has spent time with the children pursuant to the orders each Wednesday and on alternate Saturdays.
She summarises her time with the children as enjoyable and positive. She has not observed any distress or anxiety on the part of the children and the range of activities undertaken are unremarkable and appropriate. Importantly, the children appear to have resumed a relationship with the extended maternal family.
There is some allegation raised by the mother that on those occasions when the parties have had cause to communicate, the tenor has been unpleasant.
It is because the mother considers that her time with the children had been progressing well that she sought to negotiate additional time with the father but when met with refusal, the current application was filed.
The father relies upon a detailed affidavit filed 19 November 2014. He alleges that following the initial meeting between the children and Ms C, they were highly resistive to spending time with their mother and their demeanour and attitude is summarised in paragraph 6 of his affidavit:-
Following their session with [Ms C], both [J] and [L] continued to refuse to spend any time with their mother at all. They begged me not to allow their time with the mother to take place. They told me words to the effect that they were too scared to spend time with their mother and that they were worried about their mother’s conduct and behaviour towards them, even in the presence of the mother’s partner [Mr R].
Following the initial visit with the mother on 16 July 2014, the father reports that the children were negative and disparaging of the time that they spent with the mother and her family. If the father’s recitation of the children’s presentation is accurate, there is cause for concern.
The father says that both he and his partner make “consistent efforts to encourage and positively support the children’s relationship with their mother”. Despite their best efforts, the children’s attitude appears not to have changed.
The father is concerned as to a deteriorating physical and mental presentation of the children. He refers to J “constantly crying uncontrollably”, losing weight, feeling unwell and missing days at school. L complains of a range of nebulous physical ailments including feeling sick and wanting to vomit. The father attributes a re-occurrence of eczema on L’s leg and stomach to the distress that the children have experienced at the resumption of time with the mother.
Such was the father’s concern that he sought assessment from a general practitioner for J and the recommendation was that J undertake a mental health care plan.
Following a visit between the children and the mother on 6 September 2014, the children report that “it was the worst visit so far”. The father relays an alleged conversation between the mother and the children which apparently caused the children to be afraid and ultimately, they were overcome by their distress.
Allegedly the children reported that the mother attempted to comfort them when she observed that they were upset but this was considered by the children to be disingenuous.
As a result of the children’s report to their father, he arranged for J to consult with Ms C on 28 October 2014 being the day before the mother’s Application in a Case was filed.
Under various headings relating to the father’s perception that the mother lacks insight into the needs of the children, he sets out a number of examples which he argues demonstrates that the mother is simply not receptive to the needs of the children and presents with her own agenda.
The parties have a dramatically different assessment of the children’s experience following the resumption of time with their mother.
Objectively, there would appear to be little basis to explain the presentation of the children. I do not consider that there is any evidence to support the contention that the children are at risk of harm from their mother, or indeed that the mother would remove the children from the care of the father. There is no suggestion that they have been physically disciplined and even at its highest, I am not satisfied that the mother’s conduct could be considered inappropriate. That does not mean that the children are not distressed, upset or anxious arising out of their contact with the mother, but it raises a significant issue as to what might be a cogent basis to explain their behaviour. I have no doubt that the mother cares deeply for the children and to the extent that they have the view that she does not have great love and affection for them, it is clearly without foundation. The very fact that the children were resistive to spending time with their mother and the necessity for the orders made 13 June 2014 is in and of itself demonstrable of an underlying malaise.
REPORT OF MS C
J attended upon Ms C on 28 October 2014 and 13 November 2014 consequent upon a mental health plan dated 15 August 2014.
The Independent Children’s Lawyer sought a brief report and that was provided dated 19 November 2014 and forms annexure to the affidavit of Ms P of 24 November 2014.
The presenting problem was recorded as “anxiety associated with Court ordered visits to mother”.
The Kessler psychological distress scale (K10) indicated J was suffering severe distress. Ms C did not consider that J’s presentation to her was inconsistent with that result.
Ms C opines that J is “on the borderline of experiencing clinically significant symptoms of depression”.
Ms C sets out a number of examples allegedly provided by J evidencing the mother’s behaviour that J finds distressing. It is a matter of contention as to whether the examples would represent sufficient basis for what would appear to be a somewhat extreme reaction on the part of J. There is less discussion in respect of L.
Ms C expresses concern that any order the Court might make must be sensitive to the emotional fragility clearly evidenced by the child. J should not be overwhelmed and if possible there should be a synergy between the orders of the Court and the continued therapeutic intervention of Ms C to ensure that J (and if necessary L) are empowered with appropriate coping strategies.
The general summary is that a family assessment review should take place before there is any substantial adjustment in time.
ORDER SOUGHT
Notwithstanding the orders as set out in the Application in a Case, the mother does not now press paragraph 1 (a) namely, she does not seek to spend time with the children on each Wednesday from the conclusion of school until 7.30pm. It is clear that the constant movement of the children between the parties is recognised by the mother to create logistical and emotional difficulties.
The Response of the father is to continue the current arrangement subject to J continuing with the therapeutic intervention offered by Ms C.
The parties agree the handover arrangements should take place from J’s soccer match, or the restaurant known as M Restaurant situate in the main street of Suburb N, with the father to collect the children at the conclusion of their time with the mother.
THE LAW
I bring to account the direction of the Full Court in Goode & Goode (2006) FLC 93-286 as to the appropriate legislative pathway when dealing with interim parenting applications.
I am mindful of the provisions of section 60CC and I note that the considerations brought to account in my reasons delivered 13 June 2014 are applicable to the considerations that I am obliged to make in these proceedings.
The substantial mistrust and inter-parental conflict that I found existed on the last occasion would appear to be still present and may again be influencing the inter-relationship between the children and their parents. Regrettably there has not been any improvement in my earlier finding that there was a distinct lack of goodwill between the parties.
I am obliged to consider the best interests of the children and to promote a meaningful relationship, but in circumstances where the children are protected from abuse or family violence.
The significant issue that now presents itself is not necessary the attitude of the children, but that there may be a high level of anxiety and emotional fragility being displayed by J.
A cautious approach is therefore required, but the ongoing involvement of Ms C at least in respect of J, appears to provide an appropriate safety net.
CONCLUSION
Taking into account the circumstances as presently exist, I consider that there is much benefit to the children in maintaining the relationship that currently, but perhaps falteringly, is now in place.
It is important that the children understand the relationship with their mother is to be fostered and supported because of the benefits that inure to a child of having a meaningful relationship with his or her parents.
I consider it is appropriate for there to be a slight change to the current arrangements. The mother does not wish to pursue the time that the children spend with her on each Wednesday, but seeks that there be an overnight period introduced. She seeks from Friday after school to Monday morning. I consider that such an extension may be a bridge too far for the children, but given there is no adverse comment in respect of the children spending overnight time with their mother, it may well enhance the experience of spending time with her.
I propose therefore to order that the children spend time with their mother each alternate weekend from 10am Saturday to 5pm Sunday.
Whilst I have not heard any submissions in respect of the Christmas period, I propose to order that the period between Christmas Eve and Boxing Day be divided between the parties with some further increase in time for the mother towards the end of the Christmas school holidays.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 December 2014.
Associate: P M Malone
Date: 5 December 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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