Smeeden and Wulandri (No 2)

[2012] FamCA 475

FAMILY COURT OF AUSTRALIA

SMEEDEN & WULANDRI (NO 2) [2012] FamCA 475

FAMILY LAW - CHILDREN - With whom a child spends time - Interim Orders – Where the mother and her son have retained the child away from the father, contrary to the orders of the Court, for a period of one month and another period of three weeks – Where it is unlikely that if the child has unsupervised time with the mother, he will be returned to his father – orders that the child’s time with the mother and her son be supervised

Family Law Act 1975 (Cth) s60CC

APPLICANT: Mr Smeeden

RESPONDENT: Ms Wulandri

INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce

FILE NUMBER: SYC 7830 of 2009

DATE DELIVERED: 14 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Stewart Cuddy & Mockler

SOLICITOR FOR THE RESPONDENT: In Person

INDEPENDENT CHILDREN’S LAWYER Tiyce & Partners Lawyers

Orders

IT IS ORDERED

1. That all existing orders as to contact and communication between the child K born … February 2002 (“the child”) and his mother be and are hereby suspended.

2. That the child shall spend time with the mother and his brother Mr F at whichever of Contact Centre 1, Contact Centre 2 or Contact Centre 3 might first become available on a subsidized basis, at such times and frequency as might be advised by the first contact centre that becomes available.

3. That initially the child shall spend time with the mother and his brother Mr F on a fee paying basis at Contact Centre 2 on each alternate Friday night for a period of two hours, the father to be responsible for that payment to the Centre at such times as the contact centre shall advise.

4. That the mother and Mr F be and are hereby restrained from approaching any school attended by the child.

5. That the mother and Mr F be and are hereby restrained from discussing these proceedings with the child or any matter arising from these proceedings including where he shall live or what school he shall attend.

6. That in order to facilitate these orders IT IS ORDERED that the father and the mother forthwith make contact with the contact centres as advised by Mr Tiyce and participate in their intake and enrolment procedures

7. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED

1. That this matter is returnable before Registrar Campbell 6 August 2012 at 10 am for directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smeeden & Wulandri (No 2) 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 SYDNEY

FILE NUMBER: SYC 7830 of 2009

Mr Smeeden

Applicant

And

Ms Wulandri

Respondent

REASONS FOR JUDGMENT

1. Before the Court are competing applications relating to the child K, (“the child”) born in February 2002. 

2. This matter has an unfortunate history.  Proceedings in relation to the child’s place of residence were heard before Stevenson J for four days in June of 2011, and judgment was delivered by Her Honour on 8 August 2011.  It was common ground in the proceedings before Stevenson J that the child wished to remain living with his mother, however Her Honour determined, on the basis of all of the factors which she was obliged to consider, to change the child’s place of residence, and that he should live with his father. 

3. In the course of the judgment, Her Honour, inter alia, pointed out that since June 2009, the mother had done little or nothing to facilitate the child’s spending time with, and communicating with his father.  She observed that the mother had denied the father the opportunity to participate in making long term decisions about the child’s life.  Her Honour also, in concluding her judgment, said this, and I quote:

   The mother should understand clearly that the success of the proposed arrangements lies substantially in her hands.  If she jeopardises this regime, there is a very real prospect that [the child’s] time with her could be severely curtailed, and probably take place under supervision.  She should also understand that she is under a legal obligation to return [the child] to the father at the conclusion of all periods of time prescribed by the orders.  It is not for [the child] to decide whether he will return to the father.

4. At paragraph 102 of the judgment, Her Honour referred to the fact that the child is closely bonded to his mother, and likely to suffer emotional pain if he is separated from her, but balanced, on the other hand, is the compelling evidence of risk to the child’s psychological development if there is no change to the present circumstances. 

5. At paragraph 103 of the judgment, Her Honour commented that:

   it is of considerable concern that she appears to be abrogating to [Mr F] part of her parenting responsibility for [the child].  I have no basis for optimism that these entrenched behaviour patterns of dependency entitlement will moderate at any time in the foreseeable future.

6. And at paragraph 104, Her Honour commented:

   I am not persuaded that the mother has genuinely abandoned her very negative view of the father.

7. And Her Honour further said:

   I cannot be satisfied that she is either willing, or able, to foster [the child’s] relationship with his father.  I conclude that he is thus at risk of the serious psychological consequences predicted by [Dr R]. 

8. As a result of Her Honour’s judgment, the mother was allowed a graduating regime of time with the child.  The father, as is detailed in my judgment in this matter, which was delivered on 2 April 2012, gave evidence that there was a pattern of difficulty with the time the child spent with his mother, which commenced almost immediately upon Her Honour’s judgment.

9. The matter came before me on 2 April 2012, seeking an order on the application of the father that the child be returned to him.  By application filed 28 March 2012, the father sought a recovery order.  Ultimately the order that I made was that the father collect the child from his school at the conclusion of the school day, on that day. 

10. The documents which were before me on 2 April indicated that the child had not been returned to the father for some days, indeed, had been out of his father’s care since 5 March 2012.  The mother’s son, Mr F, was caring for the child.  Mr F had caused the child to be taken from the school at which he was enrolled, and to attend at School 3.  He enrolled the child at School 3. 

11. Pursuant to the orders which I made on that day, the father collected the child on 2 April.  However, on 10 April, the child again left his father’s care, seemingly of his own volition, and travelled to the home of his brother, Mr F.  Between 10 April and 30 April 2012, the child was again retained by his mother and Mr F, contrary to the orders of the Court.  It was not until orders were made in this Court for the issue of a recovery order, to involve the police, on 30 April 2012 that the child was returned to the father.  It is urged upon me by the solicitor for the mother to accept that every effort was made in the course of that period of time to return the child to his father.  I do not accept those submissions.

12. It is the mother’s case that the child should either be in her care, pursuant to an order changing the orders made by Stevenson J, or that the time that she spends with the child, pursuant to the orders of Stevenson J should be reinstated. 

13. The father seeks an order that mother’s time with the child be suspended until 4 June 2012.  I pause here to say that I do not see any benefit to the child in a short suspension of contact, and neither do I have any confidence that if contact were then resumed the pattern of behaviour which is exhibited by the mother and Mr F would be any different. 

14. The Independent Children’s Lawyer, on the other hand, urges upon the Court, that the time that the mother, and if he seeks, Mr F, spend with the child should be supervised. 

15. In his submissions in support of his application for a change of the child’s living arrangements, the solicitor for the mother urged me to place weight only upon the child’s wishes.  Unfortunately those are not the only matters which I am required to take into consideration to determine what is in the child’s best interests. 

16. I stress that the evidence upon which I make this determination is untested evidence, and I can make no findings of fact.  However, the fact that the child remained away from his father’s residence on two lengthy occasions, and was only, on each occasion, returned by order of the Court, is not in dispute.  There is a benefit to the child of having a meaningful relationship with both of his parents, but I am not convinced that in the mother’s care, the father has the opportunity of maintaining a meaningful relationship with the child, or the child with the father. 

17. The views expressed by the child undoubtedly are that he wishes to live with his mother.  Those were the views which he expressed, as I have said, prior to the proceedings before Stevenson J.  What I do not know is what influence the mother and Mr F have had upon the child’s forming of those views, and what opportunity the child has had to form a view independently of their influence.

18. In the evidence before Stevenson J, Dr R commented upon a positive relationship evidenced by his interviews with the child and the father, even at the time when the child was expressing a wish to live with his mother.  I therefore cannot place any weight on any view which has been expressed by the child. 

1. I have no doubt that the child has a loving relationship with both of his parents, and a loving relationship with his brother, Mr F.  Section 66CC(3)(c) refers to:

   the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

2. In the proceedings before Stevenson J, Her Honour made findings in relation to that issue which were adverse to the mother.  There is nothing in the evidence before me which could persuade me that the mother’s attitude towards the child’s relationship with his father has changed, or that she is likely to facilitate, or encourage, that relationship.  Neither am I persuaded that there is anything in the evidence which suggests that Mr F is willing to do either of those things. 

3. Insofar as I am required to consider the capacity of the child’s parents, and any other people, to provide for the needs of the child, I expressed my concern about the actions of the mother and Mr F in retaining the child, contrary to the orders of the Court, away from his father for periods of, on one occasion, almost a month, and on the next occasion, three weeks.  Similarly, those actions, on behalf of the mother and Mr F, do not speak well of their attitude to the responsibility of parenting. 

4. Therefore, on a consideration of the section 60CC factors, in my view, it would be preferable to make an order that is less likely, at least in the short term, to lead to the institution of further proceedings in relation to this child.  It is my view that if unsupervised time for the mother and Mr F is allowed, the events which have already occurred will simply be repeated.  There is no evidence before me which suggests that if the child has unsupervised time with the mother he will be returned to his father.  She does not give that assurance, either through her solicitor, or in her affidavit. 

5. The mother’s son, Mr F, swore an affidavit in these proceedings on 8 May 2012.  He deposes, in paragraph 4, to the child’s arriving at his home at about 6.30 in the morning of Tuesday, 10 April.  There is no doubt that the child, himself, had decided to go to his brother’s home.  The brother’s response to that was to allow the child to come into his home, and then to go back to sleep.  The brother, Mr F, says that he perceived that the child had been dropped off by his father to stay for a week with him and the child’s mother.  There is no doubt that the period of time which is referred to was school holiday time, but to suggest that it was likely that the father would deliver the child to the home of the child’s brother at 6.30 in the morning, with no prior correspondence or communication in order to start school holiday contact is inherently unlikely. 

6. At no time, until the Court gave judgment on 30 April 2012, and indicated that a recovery order would issue, did Mr F make any attempt to return the child to the father.  In fact, he enrolled the child in another school and completely ignored the orders of the Court.  His affidavit gives no assurance, or comfort, that if he has unsupervised time with the child, the child will be returned to the father.  On the contrary, it is likely that the cycle of events will continue, and that the child will be allowed, or even encouraged, to stay away from his father.

7. This disruption to the child’s relationship with his father, with his schooling, and with his stability, cannot be permitted to continue, and I am satisfied that the only way in which the child’s stability can be assured, and he can be permitted, in the short term, to have a relationship with both of his parents, is if his time with his mother and Mr F is supervised. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 May 2012.

Associate:

Date: 8 June 2012