SMITH & DUKE

[2014] FamCA 1175

FAMILY COURT OF AUSTRALIA

SMITH & DUKE [2014] FamCA 1175

FAMILY LAW – CHILDREN – Interim – where father forcibly removed child from school during handover – mother seeks a suspension of time between father and child – best interests of the child – distressing and volatile handover – long history of unsuccessful handover attempts – need to protect the child to be weighed against the benefit of a meaningful relationship – orders made for the father to spend limited time with the child.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-287
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Smith

RESPONDENT: Mr Duke

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4833 of 2009

DATE DELIVERED: 23 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Jordan & Fowler Barristers and Solicitors

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Christopher Ganzis and Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

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

Orders

1. That until further order paragraphs 3, 4, 5 and 8 of the orders made 21 January 2014 be suspended.

2. That B Duke born … 2006 shall spend time with the father as follows:-

   (a)       For a period of 90 minutes commencing 6pm on 24 December 2014;

   (b)       For a period of 90 minutes commencing 6pm on … January 2015;

3. For the purposes of paragraph 2 (a) and (b), the child shall spend time with the father at such restaurant venue as may be designated by the father.

4. That pursuant to s 62G (2) of the Family Law Act 1975 (Cth), the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purposes of the preparation of a Family Report to be completed and released by 15 April 2015.

5. The matter be listed for a First Day Hearing at 9.15am on 23 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Duke 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 ADELAIDE

FILE NUMBER: ADC 4833 of 2009

Ms Smith

Applicant

And

Mr Duke

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 14 November 2014, Ms Smith (“the mother”) filed an Initiating Application seeking orders that paragraphs 3, 4, 5 and 8 of orders made 21 January 2014 be discharged.  By way of interim relief the mother sought that the same paragraphs of the order be suspended.  On 17 December 2014, Mr Duke (“the father”) filed a Response seeking that all previous orders in respect of the child L born … 2006 (“the child”) are discharged and that the child shall live with the father who shall have sole parental responsibility.  The interim relief sought by the father provided for a suspension of the orders of 21 January 2014 and that the child should live with him and spend supervised time with the mother as may be agreed.

2. At the hearing of the interim proceedings, counsel for the father applied to amend the interim orders such that whilst the final orders remained suspended, he would only seek to spend time with the child for three hours on either 24, 25 or 26 December 2014 and for the same period of time on a date and time proximate to the child’s birthday in January 2015.

BACKGROUND

1. On 5 December 2014 I delivered reasons in respect of a hearing arising from an Application for Contravention of orders filed by the father on 31 July 2014.  Those reasons reflect the history of the matter and the circumstances surrounding orders made 21 January 2014.  I do not propose to repeat the matters as set out in paragraphs 9 to 17, but it is worth noting that there does not appear to be any abatement of the level of mistrust between the parties self-evident during the hearing.

2. On 21 November 2014, orders were made that suspended the operation of paragraph 3 (b) and (c) of the orders of 21 January 2014 and put in place orders that would see the child spend time with the father commencing 28 November 2014, 3 December 2014 and Friday 12 December 2014. For the purpose of the order handover was to occur at the McDonald’s Restaurant, Anzac Highway and importantly an order was made pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”) to appoint an Independent Children’s Lawyer (“ICL”).

3. It is not controversial that the child did not spend time with the father pursuant to the orders.

DOCUMENTS RELIED UPON

1. Since the orders of 21 November 2014, the parties have been highly active in the litigation.

2. The mother relies upon the following documents:-

   (1)Initiating Application filed 14 November 2014.

   (2)Affidavit of mother filed 20 November 2014.

   (3)Affidavit of Ms D filed 16 December 2014.

   (4)Affidavit of Ms T filed 16 December 2014.

   (5)Affidavit of Ms N filed 15 December 2014.

   (6)Affidavit of Ms U filed 20 November 2014.

   (7)Affidavit of Mr R filed 16 December 2014.

   (8)Affidavit of the mother filed 18 December 2014.

   (9)Affidavit of Mr W filed 18 December 2014.

3. The father relies upon the following documents:-

   (1)Response to the Initiating Application filed 17 December 2014.

   (2)Affidavit of father filed 20 November 2014.

   (3)Affidavit of father filed 17 December 2014.

   (4)Affidavit of father filed 19 December 2014.

   (5)Affidavit of father filed 19 December 2014.

   (6)Affidavit of Ms K filed 19 December 2014.

MATTERS RELEVANT TO THE CURRENT APPLICATION

1. The mother alleges that on 19 November 2014 she prepared the child for school together with a bag of items given that he would be spending time with his father pursuant to the orders.  The mother says that the child was aware of the arrangements. 

2. At the conclusion of school on that day, Mr R, the school principal and Ms U, a parent of another child came to the mother’s home and advised that there had been an incident at the school which culminated in the father removing the child from the school in circumstances that Mr R and Ms U considered were against the will and wishes of the child.  The mother later received a telephone call from a police officer who reported that he had attended the father’s home and formed the view that the child was not in any “imminent danger”. The mother was further contacted by Ms N, a teacher, who allegedly apologised for the school’s inability to prevent “forcible removal” of the child.

3. Ms D is an employee of the school who observed the father and his partner enter the school office at about 3 pm.  The child’s teacher brought the child to the school office and observed the interaction between the father and the child.  It is her observation that despite what appears to be appropriate and encouraging conduct on the part of the father, the child remained resistant to leaving with him. She later heard a commotion and observed the father carrying the child in a way that suggested the child was struggling and was being forcibly taken by his father.

4. Ms N is the child’s class teacher for the 2014 academic year.   She has had some involvement with the child’s parents and is generally aware of the conflict and dispute that now embroils the child.  She is also aware from a discussion with the school principal that there is a Family Court order which makes provision for the child to spend time with his father.  She sets out some history of her involvement with the attempted handovers from the school front office.  Ms N has been involved on about fourteen occasions and the general summary of her evidence is that without there being any overt or troubling behaviour by the father, the child nonetheless has been highly resistant to seeing his father or spending any time with him pursuant to the orders.

5. Ms T is a business manager at the child’s school.  She was in attendance on 19 November 2014 and observed the father attempting to entice the child to go into a room with him.  She observed the father picking the child up and the struggle that then ensued. She alleges that the child was crying and demonstrably distressed.  The father was attempting to calm the child but with little effect.

6. Mr R had participated in handovers on a number of occasions, the last of which was 19 November 2014.  It is his observation that the child refused to go with the father and on one occasion observed the father block the school gate to prevent the child leaving the school grounds, noting that the mother’s residence is across the road.

7. On a number of occasions he alleges that he did all that he could to encourage the child to go with the father but in his words it was “hopeless”.

8. Following a report that the father had forcibly taken the child out of the school office, he then observed a car being driven by the father’s partner back into a loading zone in the school car park.  The father and the child were in the back seat and it is the observations of the Principal that the child was struggling to free himself.  The level of concern was such that the Principal went to the driver’s side window, knocked hard and shouted for the driver to stop.  The car did not stop and the Principal observed that the car left the school car park at speed.  The affidavits of the mother and her partner both filed 18 December 2014 provide the history of the attempted handovers on 28 November 2014, 3 December 2014 and 12 December 2014.

9. The father has a different version of the events of 19 November 2014  He asserts that he and his partner were ready and prepared to take the childn from the school for an overnight visit.  When the child was ready they walked to the car and the child sat in the back seat with the father.  He does accept at paragraph 13 of his affidavit filed 20 November 2014 that “[The child] was resisting coming with us.  We talked to him and calmed him down”.

10. The father further alleges that he and his partner continued to speak with the child and that he was satisfied the child was not distressed.  The child was taken to the father’s home, shown his room, the father’s dog and given something to drink.

11. The child ate a proper meal and then engaged in some computer play before finally going to bed at about 8.30pm.  It is the father’s observation that the child was not distressed, and in the morning enjoyed a proper breakfast before being taken to school.  It is the father’s observations that the child was “relaxed and cheerful”.

12. The father’s observations are mirrored by his partner.

13. Unfortunately, the father agrees that the orders for further time made 21 November 2014 did not occur.  It is his position that the mother arrived at the allotted handover times in an agitated and hysterical state.  It is his observation that the mother did nothing to assist or encourage the child but rather, presented in such a way that the child would not have understood that his time with his father was supported by his mother. The mother says that she did all that was possible to promote time with the father.

14. Whichever version of the events is accurate is not a matter that I am able to determine at this stage.  What is obvious is that the parties are unlikely to be able to communicate with any level of civility and perhaps of greater harm is that the child remains completely unprotected from the parental dispute and conflict.

SUBMISSIONS

1. It is the father’s position that the mother continues to show a total disregard for the orders, certainly as and from 21 January 2014.  Whilst supporting different interim orders, the father’s affidavit of 17 December 2014 sought a change in the orders such that the child would live with the father and spend supervised time with the mother.  The basis for such a dramatic application is the breakdown in any confidence that the father had that the mother would be supportive of a relationship between he and the child.  He submits that unlike the mother he is able and prepared to support her relationship with the child as distinct from her conduct.

2. The mother’s position is that she has done all that she can and whilst she is not able to determine what the problem is, the fact that a difficulty exists is incontrovertible and the father’s behaviour in pursuing the orders when it is clearly not supported by the child is damaging.

3. Counsel for the mother strongly submitted that there has been no meaningful time spent between the father and the child for a very long time and certainly not since the orders of 21 January 2014.  She submits that the mother and her partner have cooperated in respect of all possible permutations that would be consistent with the child being encouraged to see his father.  Notwithstanding those efforts, there has been no improvement in the dysfunctional relationship between the father and the child.

4. So distressed is she by the handover events and the upset that she says the process is causing to the child that she now refuses to have anything to do with the physical handovers.

5. The father is entirely dismissive of the mother’s protestations.  Counsel for the father alleges that the mother has done nothing to assist the process and in the absence of an allegation, a disclosure or a reporting of adverse conduct on the part of the father there is nothing to explain the child’s oppositional and resistive behaviour other than the obvious namely, that the mother is deliberately undermining the child’s relationship with his father.  The Court is reminded that in all of the affidavit material there is no adverse allegation directed against the father and to the extent that at least some of the events of 19 November 2014 were already before the Court, orders were made on 21 November 2014 that the child spend time with the father on three set occasions during the period of the adjournment and pending the appointment of the ICL.

6. There is no concession by the father that the child was stressed or distressed on his overnight visit and I think by implication denies that there was any overt force used against the child.

7. The father does concede however that he has not answered the affidavit of the school principal by formal affidavit.

8. Whilst it is difficult for me to decide matters of credit, I find that the father did resort to force on 19 November 2014 in order to remove the child from the school premises and into the waiting car.  I am not however satisfied that the child was necessarily unduly distressed once he arrived and was settled at the father’s home.

9. In summary, it is argued that notwithstanding there is a demonstrably poor history of compliance with the orders of 21 January 2014 there are no allegations that the father’s behaviour has had any adverse impact on the child.  I accept that submission.  Other than a recitation of the failed attempts to effect handover and have the child spend time with the father, there is no allegation of inappropriate abusive or poor conduct on his behalf.

10. Equally, what cannot be denied is that for whatever reason and notwithstanding many attempts, the child spending time with the father has been wholly unsuccessful.

LEGAL PRINCIPLES

1. I have regard to the “legislative pathway” as set out in Goode & Goode (2006) FLC 93-287. At paragraph 82 of the judgment the following is stated:-

   In an interim case that would involve the following:-

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interest, considering making an order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. The difficulty in this case is the agreement between the parties that the child is not spending time with the father, but with no agreement or indeed understanding as to why that might be.  The father alleges that the mother is intent on damaging irreparably his relationship with the child.  The mother considers that the father has a total lack of insight as to the needs of the child and that she has done all she can reasonably be expected to do to encourage the relationship.

3. It is clear however that the current circumstances are untenable for the child. Irrespective of who is at fault (if either), the current state of affairs which sees the child involved in a distressing and volatile attempt at handover spanning now 11 months since the making of the orders is not an acceptable outcome for the child.

4. The father may well be entitled to a high level of frustration at having his relationship with the child fundamentally disrupted in circumstances where there is no explanation that would place the child’s reluctance into an acceptable context.

5. However by the amended orders that he now seeks, there is recognition that the current orders have become unworkable and more importantly, may be having an adverse impact on the child.

6. To some extent my remarks mirror the submissions made by counsel for the ICL.  There is no criticism of the father’s behaviour and indeed genuine regret that the orders which promised so much have resulted in so little.  There is however a recognition on the part of the ICL that ultimately whatever the sensitivities of the parties are, the Court’s focus must be on the child’s best interests.

CONSIDERATIONS PURSUANT TO SECTION 60CC

1. As is so often the case, the tension arises in respect of a consideration of the primary matters in s 60CC (2) (a) namely, the importance of the child maintaining a meaningful relationship with his parents, but in doing so to ensure that the child is not at serious risk of  psychological or emotional harm.

1. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J commented on the definition of “meaningful” and said:-

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship” is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitative one.  Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405 the Full Court said at paragraph 119:-

   We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.  We note however that s60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents.  If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship has not been established between a child and a parent at the date of trial.

3. I therefore must weigh up the competing primary considerations namely the benefit to the child of having a meaningful relationship with both his parents and the need to protect him from physical or psychological harm.

4. I have also had regard to the additional considerations under s 60CC (2) (b).  At this stage I place significant weight on what appears to be the wishes of the child and that is to limit his exposure to his father.  I do so with caution noting that there has not been any explanation by the child as to what would be the basis for that view.  Nonetheless, the recent history throughout 2014 must be given weight.

5. I also consider that the very fact that time has not been spent between the child and his father does not necessarily reflect adversely on the need to maintain a relationship.  I am concerned in this case that if there is no time between the child and his father that may well have the real effect of entrenching the current level of dysfunction in circumstances where there is no explanation for the child’s resistive and reluctant behaviour.

6. The mother’s position is that there should be no time spent between the child and his father and that the operative provisions of the order of 21 January 2014 should be suspended.  The father seeks limited time with the child in circumstances that provide for an entirely safe environment.

7. To the extent that there have been occasions whenthe child has been prepared to spend time with his father in the presence of others, I see no reason why the child should not spend limited time proximate to Christmas and his birthday.

CONCLUSION

1. Accordingly, I propose to make orders in terms as sought by the father, but with the time reduced from three hours to one and a half hours.  I propose to allow the father to select the restaurant venue and it is at the election of the father as to whether he allows any other person to remain during his time.

2. The order of 21 January 2014 will be suspended and I propose that the matter be brought back for mention in four months’ time following the preparation of a s 62G (2) report.

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

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 December 2014.

Associate: 

Date:  23 December 2014