Summers and Rendel

[2017] FamCA 855

FAMILY COURT OF AUSTRALIA

SUMMERS & RENDEL [2017] FamCA 855

FAMILY LAW – CHILDREN – Interim orders – Spend time with – Consideration of best interests of the child – Consideration of report by child’s psychologist – Orders made for the child to spend two nights in each three week period until the final hearing – Where further consideration given to the child travelling overseas with the father – Where the parties are agreed to the child travelling overseas – Where orders made by consent permitting the father to travel overseas with the child

Family Law Act 1975 (Cth) ss 60CC, 62G(2)

APPLICANT: Mr Summers

RESPONDENT: Ms Rendel

FILE NUMBER: ADC 1363 of 2016

DATE DELIVERED: 18 October 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGinn

SOLICITOR FOR THE APPLICANT: Nelson & Co

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Clelands Lawyers Adelaide Pty Ltd

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the parties have equal shared parental responsibility for B (“the child”) born … 2004.

2. That the said child shall live with the father.

3. That the said child shall live with the mother as follows:-

   (a)From the conclusion of school on Friday (or 5 pm if a non-school day) until the commencement of school Monday (or if a non-school day 10 am) and in each third week thereafter commencing 27 October 2017 until the commencement of trial on 18 December 2017.

4. For such other time as the parties may agree.

5. That further consideration of the father’s application for leave to copy the material provided under subpoena from C Practice and Medicare Australia is adjourned until the first day of the final hearing.

BY CONSENT IT IS ORDERED THAT

1. That the applicant/father be permitted to take the child B born on the … 2014 overseas from the 12 January 2018 for a period of up to and including fifteen days provided that the father forward to the mother the child's full itinerary including flight details and accommodation details prior to 1 December 2017 and the mother be at liberty to telephone the child on the father's mobile phone and the father to facilitate such telephone contact.

2. That both parties take all necessary steps and sign all necessary documents to ensure that the child, B's passport is renewed as soon as practicably possible.

TRIAL DIRECTION ORDERS

1. That by 4 pm on 17 November 2017 the applicant file and serve upon all other parties:-

   (a)An amended application setting out with precision the orders to be sought;

   (b)The affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that the affidavits relied upon at previous hearings cannot be relied upon as evidence in chief);

2. That the applicant pay all setting down and trial fees by 4 pm on 1 December 2017;

3. That by 4 pm on 13 December 2017 the respondent file and serve upon all other parties:-

   (a)An amended response setting out with precision the orders to be sought;

   (b)The affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that the affidavits relied upon at previous hearings cannot be relied upon as evidence in chief);

4. That no party file any further material other than as provided by these orders;

5. That prior to the commencement of the trial the parties are to determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outline of case;

6. That all parties have liberty to approach the Registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial;

7. That the practitioners for the parties file and serve electronically to … by 4 pm on 15 December 2017 the following:-

   (a)       A concise set of orders to be sought if different from those already filed;

   (b)A list of the applications and affidavits to be read out and if not the whole affidavit the relevant paragraphs relied upon;

   (c)       A list of objections to evidence upon which rulings are required;

   (d)       A bullet point summary of argument in relation to issues in dispute.

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 Summers & Rendel 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 1363  of 2016

Mr Summers

Applicant

And

Ms Rendel

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Summers (“the father”) seeks orders that B born in 2004 (“the child”) primarily live with him and spend time with Ms Rendel (“the mother”) as may be agreed between the parties but in any event subject to the child’s wishes.

2. The formal position adopted by the mother is that the parties have equal shared parental responsibility for the child and that he live with the mother from the conclusion of school on Monday (or 5 pm if a non-school day) to the conclusion of school on Wednesday of the following week (or 5 pm if a non-school day) and with the father at all other times.

3. It is likely that each of the parties may well now seek different orders.

4. The father considers that the only outstanding issues relate to who will hold the child’s passport and the circumstances in which the husband can travel with the child overseas.

5. It is suggested that the mother may well concede that the child should live primarily with the father and spend time with the mother consistent with express terms and conditions and in particular without the child having the ability to determine the extent of time that he spends with her.

6. On 26 July 2017 the mother filed an Application seeking to extend time to file a notice of objection to the copying of her medical records that had been produced under subpoena issued at the instigation of the father and directed to Dr D, her general practitioner and Medicare Australia.

7. By Response filed 7 September 2017 the father sought to dismiss the mother’s application and sought leave to copy the material that had been provided under subpoena.

8. He also sought orders that until further order the parties have equal shared parental responsibility for the child, that he lives with the father and spends time with the mother subject to his wishes.

9. The father also foreshadowed that he intended to travel overseas with the child for a period of three weeks in January 2018, that he wanted to obtain custody of the child’s passport and that general orders should be put in place which better regulate any proposed overseas travel for the child without the need for the mother to give her consent.

10. The mother filed a Reply on 10 October 2017 seeking orders that the child live with her in the month of October from the conclusion of school Friday until the commencement of school Monday and in each alternate week thereafter, in the month of November from the conclusion of school Thursday until the commencement of school the following Monday and in December from the conclusion of school Wednesday together with one half of all school holiday periods.

11. The parties have had the advantage of a detailed psychological report dated 12 October 2016 as prepared by Ms E and annexed to the affidavit of Ms F filed 14 November 2016.

12. Given that the dispute between the parties is limited to the ongoing parenting arrangements for the child now nearly 13 years of age with the ancillary consideration of overseas travel, I considered it was an appropriate case for expedition on the basis that counsel have assured the Court no more than three days will be required for the hearing.

13. On 12 October 2017 all applications for final orders were listed on 18 December 2017 with a further order made pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) requiring the parties and the child to attend upon a family consultant for the preparation of a family report.

Background

1. The mother was born in 1973 and the father was born in 1972. The parties commenced cohabitation in 1995, were married in 1997 and separated on 24 December 2014.

2. There are two children of the relationship namely Mr G (“Mr G”) born in 1999 now aged 18 years and the subject child.

3. The mother has re-partnered and has a child of that relationship.

4. The parties have resolved their property settlement and orders were made on 13 April 2017.

5. The present circumstances are that the child lives with the father and spends time with the mother either subject to his wishes or, as contended by the mother, as the father may determine.

Issues in contention

1. At this stage of the proceedings I was not prepared to give leave for the documents produced pursuant to the subpoena to be copied. The mother maintains her objection on the basis that the documents produced at least by her medical practitioner contain sensitive personal medical information and whilst she did not object to the documents being inspected she considered that leave to copy will not discriminate between relevant medical information and medical information that is sensitive but irrelevant to the proceedings.

2. Both the mother’s and the father’s solicitor have filed affidavits setting out what might be considered the “core information” gleamed from inspection of the subpoenaed documents and at this stage the case has not been made to support copies of the documents being made. It is not yet understood the purposes for which the subpoenaed information will be used but it was suggested that the father may seek expert advice as to whether the information would support an assertion that the mother potentially presents as a risk to the child by reason of prescription drug abuse. It is conceded that the medical records and information do not extend beyond April 2017.

3. The application to copy has been adjourned until the first day of trial.

4. The mother concedes that at present the child spends time with her apparently according to his wishes. She harbours a suspicion that the child may be influenced by the father and she expresses concern that the child’s knowledge of the proceedings and some of the potential evidence that is to be lead in particular surrounding the use by the mother of prescription medication may well indicate that the child has been inappropriately exposed to the father’s view and opinion of the mother.

5. For his part whilst the father agrees that hitherto there had been greater regularity of the child spending time with the mother but since April 2017 the father says that the child was experiencing increasing distress and anxiety during his visits.

6. The parties were sufficiently concerned as to the child’s presentation that they jointly instructed a psychologist to undertake counselling for the child. The father alleges that the counselling was unsuccessful and that the child was distressed at the suggestion that he may be forced to spend time with his mother.

7. The mother considers that the father neither encourages nor supports the child’s relationship with her, did not support the counselling and argues that allowing the child to determine when he spends time with her has been entirely unsuccessful.

8. The mother considers that the father actively engages in conduct that is not supportive of the child’s relationship with her.

Family report

1. The parties jointly instructed Ms E clinical psychologist (“psychologist”) to undertake an assessment in respect of the future care arrangements for the child. Whilst Mr G was included in the assessment given his age, it was noted that the parties agreed he would make his own arrangements in terms of the relationship that he wanted with his parents.

2. Many of the issues that now confound the parties and adversely affect the child were obvious in their presentation to the psychologist. At that time the child was spending about two nights a fortnight with his mother but there were volatile disagreements between them and he considered that she told him lies. An issue at that time seemed to be an inability of the child to accept the mother’s new relationship with her current partner, Mr H.

3. The psychologist formed the opinion that whilst there were clear and evident difficulties in his relationship with his mother, nonetheless the child had a meaningful relationship with her.

4. There was no suggestion that the child would not benefit from maintaining a relationship. The psychologist recorded that the child preferred to live with his father and spend time with the mother for two to three nights per fortnight.

5. The child presented as a troubled child but nonetheless reporting a positive relationship with his parents.

6. It was a common presentation as to the manner in which the mother’s partner had moved into her household and changed the dynamics significantly.

7. The psychologist summarised the child’s presentation as follows:-

   Regarding future arrangements in view of [the child’s] age (soon to turn 12 years), his maturity and the emotional distress he is likely to experience if forced to spend extensive time with his mother and [Mr H] against his wishes, [the mother’s] application for primary care or in the alternative week about care is not considered to be in [the child’s] best interests. [The mother] needs to develop a relationship of trust with the child, who in turn needs to demonstrate respect for his mother. An order for minimal time e.g. alternate weekends, (Friday – Monday) to be extended gradually as agreed between the parents will inform [the child] there is an expectation he will regularly share time with his mother. It is suggested that [the child] might also share a meal with his mother on intervening weeks, which may include in an overnight stay…it is important that [the child] also continue to spend at a minimum alternate weekends (Friday – Monday) with his mother during holiday periods.

Parenting considerations

1. The parties agree that it is in the best interests of the child to maintain a relationship with each of them but in particular the mother. At present, that relationship appears to be either fractured or under some considerable stress.

2. The psychologist considered that the extent to which the child spends time with the mother should not be determined by the child’s wishes. Unless some time is ordered there is little evidence to assist the Court in determining what will be the interim arrangements.

3. The parties and the child are soon to undergo an assessment leading to a family report.

4. At best the opportunity for the child to spend time with his mother is limited to four occasions if considered on a fortnightly basis.

5. In determining the best interests of the child I have regard to the primary and additional factors as set out in s 60CC of the Act.

6. It could not be said that there is significant evidence that the child spending time with the mother would present as such a risk that it would not occur. The matters raised in the psychologist’s report would suggest significant benefit to the child of maintaining a relationship with his mother.

7. There must however be a balance and given the circumstances and history to date it would not be appropriate to disregard entirely the child’s wishes.

8. It is also important that the child understand that it is to his benefit to maintain a relationship with his mother but that it must be on respectful terms. Accordingly I find that the best interests of the child be served by him spending two periods of time with his mother between now and the trial as the parties may agree.

9. The further occasions of time spent will also assist in enabling the family consultant to be better placed to assess issues of significant impact upon the child and relevant to the ongoing parenting arrangements.

Overseas travel

1. The father sought a specific order that he be permitted to take the child overseas for a period of three weeks in January 2018. He has now better defined the period and duration of travel and seeks that the child travel with him to the United States of America for a period of fifteen (15) days to occur between 12 January 2018 and 21 January 2018.

2. The father also agrees that the child will be appropriately supervised by him and will not be left alone during any period that the father needs to attend to his business commitments.

3. Whilst the trial date is scheduled to take place before the anticipated period of travel the father presses the need to secure flight bookings at the earliest opportunity.

4. There has been a considerable history of the child travelling overseas and in particular to the USA. There is no suggestion by the mother that there is a risk of the child not being returned to the jurisdiction. The mother’s concern is that the frequency of overseas travel particularly if left to the sole discretion of the father is unpredictable for the child and disruptive to his education and the relationship that he has with the mother.

5. Whilst there is also a contention by her that the child does not wish to go, what is being requested at present is some sufficient certainty that would enable travel arrangements to be put in place.

6. The parties are now agreed as to overseas travel and I will make orders that reflect their consent.

Conclusion

1. I propose to order that the child will spend time with the mother on two occasions between now and the trial date and that the father will be permitted to take the child overseas for a period of 15 days with the commencement of travel to occur between 12 and 19 January 2018.

2. Following the listing of the trial to commence on 18 December 2017 I propose to make trial direction orders necessarily truncated given the short period available.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 18 October 2017.

Legal Associate:

Date:  18 October 2017