Shaker and Beliz

[2016] FamCA 952

FAMILY COURT OF AUSTRALIA

SHAKER & BELIZ [2016] FamCA 952

FAMILY LAW – CHILDREN – interim orders – where there is a consent order – where the mother seeks a variation that would reduce the father’s time with the child – where the father opposes the reduction in time and seeks that the order in relation to supervision be discharged – where there is a family report – where consideration is given to the relevant legal principles – where the Court does not consider supervision necessary – where interim orders for parenting arrangements are made – where both parties are directed to complete the Kids R First parenting program and the child is to receive psychological support.

Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Shaker

RESPONDENT: Mr Beliz

FILE NUMBER: ADC 1351 of 2014

DATE DELIVERED: 10 November 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 2 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Thomas Legal

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: John R Quinn & Co

ORDERS

That until further order:-

1. The child B born … 2006 (“the child”) live with the mother.

2. That the child spend time with the father on Saturday and Sunday from 9 am until 3 pm each fourth weekend commencing 19 November 2016.

3. That handovers shall take place at McDonald’s Restaurant, Suburb C.

4. The child shall communicate with the father by telephone each Sunday at 7 pm (South Australian time) with the father to telephone the mother’s mobile telephone … and the mother to facilitate same.

5. The mother provide to the father copies of all school reports, circulars and any other document relating to the child’s schooling.

6. That each parent be at liberty to attend the children’s school functions, activities and events that allow for parental attendance including but not limited to concerts, plays, sporting, open days, excursions, fetes, speech nights, assemblies, parent/teacher interviews, canteen duties and social functions.

7. The mother inform and keep the father informed at all times of the child’s health and/or health related issues, and in the event that the child is required to undertake a medical procedure, consult with the father as soon as is practicable.

8. That the mother inform the father in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the child.

9. That the mother provide to the father a copy of any report prepared by any such specialist medical consultant or relevant health professional within seven (7) days of receipt of same.

10. That in the event that the child is involved in a medical emergency the mother shall notify the father immediately and provide details of the health care professional or medical facility that the child attends.

11. That the child participate in psychological support at the joint expense of the parties with a psychologist as may be agreed between the parties in writing or as ordered by the Court.

12. That both parties are to complete the “Kids R First” course, but that the continued operation of these orders is dependent upon the father completing the said course by 15 January 2017.

13. That the psychologist providing therapy to the child be provided with a copy of the report of Ms D dated 20 July 2016.

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 Shaker & Beliz 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 1351  of 2014

Ms Shaker

Applicant

And

Mr Beliz

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. Mr Beliz (“the father”) and Ms Shaker (“the mother”) are in conflict as to the interim parenting arrangements for B born in 2006 (“the child”).

2. The father commenced the proceedings by Initiating Application on 24 July 2015 seeking orders that the parties would have equal shared parental responsibility for the child, but reserved his position to seek more detailed orders pending the release of a family report.  By Response filed 7 October 2015, the mother sought orders that the child live with her and subject to certain conditions be permitted to travel out of the Commonwealth of Australia but in particular to Pakistan.

3. The mother’s response is silent as to the arrangements, if any, that she proposes for the child to spend time with the father.

4. By consent order made 19 October 2015, the parties agreed that the child would spend time with the father on each third weekend from 9 am to 3 pm on each of the Saturday and the Sunday of each weekend, but with the further condition that his time was supervised by Ms E.  An order was made for the preparation  of a family assessment report and the proceedings were adjourned for further argument to 16 February 2016.

5. The parties filed further extensive affidavit material in anticipation of the adjourned date.  The affidavit of the supervisor was generally positive in respect of the supervised time.  The child is recorded to have been happy and comfortable in her father’s presence.  For his part he attested to the closeness of his relationship with his daughter and but for her preoccupation with the prospect of the father taking her away from the mother, the father and the child appeared to enjoy their time together.

6. The mother’s observations were of the child being anxious in the days leading up to spending time with the father.  Nonetheless, the child appeared to manage the visits although she did complain of anxiety, in particular if her father spoke in a derogatory fashion about the mother.

7. On 16 February 2016 orders were made which required the supervision to be in place for the first hour only of the time the child spends with the father and thereafter the time was to occur on an unsupervised basis.

8. On 31 August 2016 Judge Cole transferred the proceedings to the Family Court of Australia and noting that the matter may be listed for directions on 13 September 2016, ordered that the child spend time with the father on Saturday and Sunday from 9 am to 3 pm each third weekend commencing 3 September 2016 and that Mr F supervise the first hour of the father’s time with Mr F spending some time with the child prior to the father’s time commencing.

9. The mother foreshadowed that she would file an Application in a Case seeking to reduce the time that the father spends with the child consistent with the recommendations of the family consultant.

10. The Application in a Case was filed on 15 September 2016 and reflects the mother’s foreshadowed position namely that the father’s time should be reduced to each fourth Saturday from 10 am to 4 pm and whilst initially the mother was prepared for Ms E and/or Mr E to supervise the father’s time with the child, in her affidavit she considered that Mr F should be the only permissible supervisor and that the child’s time spent with the father and the frequency of same should be dictated by the availability of Mr F.

11. By Response filed 28 October 2016 the father sought that the child spend time with him in accordance with the order of 31 August 2016 but without the requirement of any supervision.

12. There was a further concession by the mother that orders could be made in terms of paragraph 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the father’s Response.

13. Both parties have enrolled and/or commenced but not yet completed the “Kids R First” parenting course.  Given the conflict between the parties and the obvious extent to which the child has been impacted by the dispute, it is difficult to understand why the parties have not as yet completed an appropriate parenting course.

14. Accordingly, the issues to be determined are the extent to which the child spends time with the father, whether that time is supervised in whole or in part and the extent to which the parties may provide their consent and input to the child receiving psychological support.

BACKGROUND

1. The parties are each qualified health professionals.  Both were born in Asia.  The parties were married in 2004.  The father migrated to Australia in October 2003 and following their marriage the mother came to Australia in February 2005 on a spouse visa.

2. Whilst the detail is not essential to the resolution of the current proceedings, it is sufficient to note that the relationship between the parties was unhappy.  Each of the parties makes significant allegations about the other.  For his part, the father alleges that the mother may have been depressed and that he considered her behaviour was consistent with a person suffering a mood disorder. In summary, he considered that she behaved in “an insecure and unpredictable manner, and had difficulty adjusting to life in Australia”.

3. For her part, the mother alleges that the father was aggressive and abusive towards her.  In particular, she alleges that the father would threaten not to return the child and he constantly threatened that he would take the child out of the Commonwealth of Australia.

4. The mother alleges significant family violence perpetrated by the father.  He denied that allegation.

5. The parties separated in April 2010.  The child was four years of age.

6. The arrangements for the father to spend time with the child post-separation is unclear as are the circumstances surrounding the reason for the father relocating to Sydney.  The father believed that the family would move to Sydney for a new start.  The mother denies that she had any input or involvement in the father’s relocation.  In any event, the father now lives in Sydney and the time that he spends with the child is necessarily restricted by the difficulty and expense of him being able to make the necessary arrangements to travel to Adelaide.

7. Whilst each of the parties raise issues of family violence, neither counsel submitted that the orders being sought by each of the parties were in any way influenced by their separate allegations of family violence, but rather the focus was on whether the child has been adversely affected by the current arrangements taking into account the recommendations of the family consultant.

REPORT OF FAMILY CONSULTANT

1. Following various orders made, a joint letter of instruction, and an assessment being completed, Ms D published her report on 20 July 2016.

2. The child’s presentation to the family consultant was disturbing.  It is recorded that on meeting the family consultant, the child said that she loves her mother but does not like her father.

3. In the observed interaction with the mother the child spontaneously noted that “she would be coming to see the writer the next day with her father and told her mother that she had explained to the writer that if she is scared of her father, she will ‘lie’ and pretend to have fun, but repeatedly asked the writer not to believe her in those circumstances”.

4. The mother apparently took no steps to intervene and it is reasonable to assume that either the mother gave her implicit imprimatur to the child’s statement or the child would have been entitled to take the mother’s silence at tacit support.  The observations of the child with the father did not reflect the anticipated reluctance of the child to engage with him.  As the period went on, the family consultant observed that the child became more relaxed.  It was not the observations of the family consultant that the child appeared to be “pretending” to engage with the father.

5. It is recorded however that at about the 45 minute mark the child made a swiping gesture across her throat which was a signal to the family consultant to end the session.  The father complied with the direction of the family consultant, but before leaving asked the child whether her school principal had spoken to her in relation to his attendance at the school.

6. When alone with the family consultant, the child described the effect of the father’s question to her being like “a spear in my heart” and that it had scared her “to death”.  The family consultant records that she found the child to be polite and engaging but with a sense of the drama as exemplified by a letter that the child had apparently written to the mother’s lawyer with the intention that it be passed on to the family consultant.  The contents of the letter are informative and as such I set it out in full:-

   Dear lovely Mum’s lawyer.  I have a black hole in my heart because my dad keeps on bothering me and taking my confidence down.  He makes me feel like as if my heart has sliced by an axe.  And the axe that sliced my heart really affected my heart and now I am really concerned that that axe was full of my dad’s evilness.  This is why he is evil and I hate him:

   ·He takes my confidence down

   ·He bothers me in school and makes my cry in school

   ·He makes me hurt and sad

   ·He plays nasty clever bad tricks to make me not want to live with my Mum

   ·He says my reports are bad when I get high marks

   ·He slaps my mum and hurt her also that hurts me

   …You know I don’t want to see him please!!! I’m crying with tears.  I’m so stressed.  Mummy is a very calmful (sic), gentle, caring, loving and forgiving.  She is soooo gentle and loving.  I’m happy with tears.  If I’m stressed she will help me, if I am down she’ll make me go up my Mum is the best Mum in all Mums.

7. It would appear that the child is vigilant for any reference by the father concerning the mother.  It is clearly the child’s perception that the father denigrates the mother and is derogatory in his discussion of her.

8. An example of the extent to which she is confused is exemplified by the child’s rumination as to the father’s true thoughts.  On the outside she observes him to be smiling but she considers that he is “cross from the inside” and that he “hides it”.

9. The conflict is highlighted by the child being asked to provide a balance in her views of her father and in response the child said “yes, he takes me places and makes me happy, but I want him banned from my life”.

10. It appears that the child is reacting to the conflict between the parties and “the difficult questions” she is being asked.  If there were no difficult questions then the child agreed that would be a lot better for her.

11. In somewhat emotive terms, the mother considered that the stress on the child was likely to have a long term impact and that the child was being “destroyed” by the obligation to spend time with the father in circumstances where she did not wish to do so.

12. Each of the parties spoke in complimentary and appropriate terms of the child.  For his part, the father considered that the child was a “very loving, caring and connected child, who has a lot of love and care for her parents, her father and her mother, her friends, her cousins, the people around her”.

13. The information from the school supported the contention of the parties that the child was bright, well behaved and was performing well academically for her age level.

14. Her mother said that she did not adjust well to the prospect of the father attending to her school, although it is difficult to understand the basis of the child’s apprehension.  It may well be founded in the belief of the child that the father has a plan to remove her from the mother.

15. There was significant focus by each of the parties as to the faults and adverse behaviour of the other.  A careful reading of the report would suggest that the parties are obsessed by their mistrust for each other and an inordinate amount of time appears to be spent by each of them focussing on their various negative personality traits.  The mother considers that the father is a compulsive liar and that he will make up things that are “unimaginable”.  She also alleges that he in association with others who attempted to make a complaint about the mother’s professional conduct.

16. The father expressed concern about the mother’s “moral guidance” of the child and focusses on her unpredictable behaviour and restated the allegations set out in his affidavit namely, that the mother was aggressive both towards him and the child.

17. It appears that the father has rationalised the mother’s refusal to promote his time with the child as a reaction to his allegations about her professionally and personally.

18. Each of the parties deny the other’s allegations of family violence.

19. The family consultant observed that the child was becoming increasingly unable to deal with the conflict and that it was manifesting itself as anxiety and stress.  Fortunately it was her opinion that it was “situational anxiety” and specific to her relationship and spending time with the father.  In particular, the child did not appear to show visible signs of stress or anxiety at school or in her academic results and peer group relationships.

20. The concern for the family consultant is that if the anxiety “is not addressed, it risks compromising her otherwise competent development”.

21. This must be seen against the reality of the situation which is that the time the child spends with the father is minimal and as presently ordered does little to assist with the father being involved in the child’s day to day life but rather, he sits very much of the periphery.

22. This is exemplified by the observations of the family consultant concerning the father’s deliberate choice to question the child which was “not sensitive to her emotional state, or child focussed”.

23. The summary of the father’s interaction with the child was considered to be indicative of a “lack of attunement to [the child’s] emotional state/ability to ‘read’ her and his ability/willingness to not cause further stress, are the most significant contributing factors to her anxiety”.

24. The father’s insight into these matters did not impress the family consultant.

25. It is reasonable to consider that the separation by distance of the father to the child is likely to reflect itself by a qualitatively different relationship developing.

26. It is also not of assistance to the child that the mother was considered by the family consultant to involve the child inappropriately in the adult conflict.  It is clear that the mother has shared details of the dispute with the child and it is likely that the child is well are of the mother’s view of the father which is mirrored in the extraordinary letter penned by the child.  The very fact that the child should describe her father as “evil” in circumstances where there could be no justification for that view being considered is reflective of a lack of vigilance on the part of the parents to keep the child removed from the clear dislike that each holds for the other.

27. The family consultant considered that the time should be reduced to one occasion every four weeks in the company of the child’s cousins, with the first hour to be supervised.  Accordingly, the effect of the proposal by the family consultant is to reduce the frequency from every three weeks to one occasion in four, but to place no further restriction on the father in terms of supervision.

28. It was clearly important to the family consultant that the parents complete the “Kids R First” course and that the child obtain psychological support.

29. The father is urged to seek psycho-education, with the report of the family consultant being provided to both the father’s psychologist and the child’s psychologist.  What is meant by this form of counselling is unclear.

PRINCIPLES RELATIVE TO PARENTING ORDERS

1. Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration.  The best interests of the child are met by the application of the objects of s 60B(1).

2. I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3) in order to determine what is in the best interests of the child.

3. In particular, I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that whilst together the father was the perpetrator of family violence.

4. Section 65DAA(1) provides:-

   Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

5. Section 65DAA(2) provides:-

   Subject to subsection (6), if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

6. I am required to bring to account the provisions of s 65DAA(3) as part of my consideration of the appropriate orders that are to be made.

7. I am also obliged to consider that in circumstances where I make an order for equal shared parental responsibility, whether the proposals of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(d).  The Act provides assistance in the determination of “reasonable practicality”. 

8. Accordingly, I propose to adopt the following approach:-

   (1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;

   (2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   (4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

   (5)Have regard to additional considerations under s 60CC(3);

   (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

9. Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) could rebut the presumption.

10. If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC.  If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires the Court to consider whether there should be an order for equal time.  If not, then substantial and significant time.  The test is whether the orders would be in the best interests of the child and reasonably practical.  As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.

11. Section 60CC(2)(b) requires the Court to consider as a primary consideration:-

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

12. The mother considers that the father presents a risk to the child of emotional abuse which may well manifest itself with harmful psychological sequali affecting the child.  The father alleges that the mother has influenced the child to adopt a distorted impression of him and that her presentation as evidenced by her language and her correspondence is both bizarre and worrying.

13. The conflict between the parties is such that communication at any effective level is impossible, but even of the parties were capable of civility, the father’s residence in Sydney makes it difficult for him to have effective input into the child’s day to day management.

PARENTAL ISSUES

1. It is difficult at this stage to assess the extent to which the serious allegations of each of the parties make about the other are likely to be borne out.

2. It is however clear that the child is reacting poorly to the conflict and what is called for is a strategy to balance the concerns that the father has that if left to her own devices, and in circumstances where the mother shows little sign of promoting the child’s relationship with the father, a meaningful relationship will be difficult if not impossible to sustain.

3. The child also needs to feel that her parents are reacting to her concerns.

4. Whilst I am obliged to have regard to the views of the child, in this case it is not the recommendation of the family consultant that all time between the father and the child cease, or even at this stage that it be the subject of strict supervision.

5. Of course, that is not the mother’s position.  She considers that the child’s anxiety can only be relieved by the father’s time with the child being supervised only by Mr F as opposed to a member of the father’s family or some other neutral person.

6. Mr F has limited availability and at the date of hearing the mother’s counsel was only able to indicate three occasions of limited duration for Mr F’s attendance.

7. There was uncertainty as to what was to occur at the conclusion of those three occasions.  It was not clearly understood whether the matter would be brought back for further consideration, whether there would be a further report, or whether the previous orders would be revisited.

8. It is not the view of the family consultant that at this stage that level of stringent supervision is required.

9. The family consultant hopes that if the parties, but perhaps in particular the father, undertakes a process by which he gains some insight into his forceful interaction with the child and that the child benefits from some counselling, then much of the anxiety may be either avoided or ameliorated.

10. There is no consideration in the report of the family consultant to the mother’s proposal.

11. It must be remembered that the parties separated in 2010.  The dispute between the parties and the arrangement for the father to spend time with the child has now been taking place for six years, albeit under a variety circumstances and conditions.  The child is now ten years old and is demonstrably able to elucidate, albeit by unnecessarily florid and emotive language, the activities in which she engages with the father.  To date there is no suggestion that the child is mistreated in the care of the father but rather, the child feels a divided loyalty between the entrenched positions adopted by each of her parents.

12. Given the circumstances of this case and the difficulty in making the necessary arrangements, I do not consider that supervision is necessary or that the child will benefit from an artificial arrangement involving Mr F for what would be a limited period of time.

13. I am of the view that whilst there is advantage in the child spending time with the father on two consecutive days, the frequency of those visits should be reduced to one weekend in four.

14. The continuation of that arrangement will be dependent upon the father completing the “Kids R First” program in a timely fashion.

15. There is also wisdom in the recommendation of the family consultant that the child would benefit from counselling, with an opportunity for the parties to reach agreement as to the identity and focus of the counsellor and content, but in the absence of agreement as may be ordered by this Court.

16. Neither party seeks shared care.  It would not be possible given the father lives in Sydney.  It would not be indicated in any event having given the primary and additional factors in s 60CC careful consideration.

17. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 November 2016.

Associate:

Date:  10 November 2016