Summers and Ritchie

[2009] FamCA 992

FAMILY COURT OF AUSTRALIA

SUMMERS & RITCHIE [2009] FamCA 992

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

C & C [1998] FamCA 143
Goode & Goode (2006) FLC 93-286
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
Knibbs & Knibbs [2009] FamCA 840

APPLICANT: Ms Summers

RESPONDENT: Mr Ritchie

INDEPENDENT CHILDREN'S LAWYER: Ms Bint

FILE NUMBER: BRF 2385 of 2006

DATE DELIVERED: 5 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 5 October 2009

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Byrne
Whitehead Payne Lawyers

INDEPENDENT CHILDREN'S LAWYER:

Ms Bint

Legal Aid Queensland

Orders

1. The Application in a Case filed by the Mother on 31 August 2009 is dismissed.

2. The Contravention filed by the Father on 24 September 2009 is adjourned before Justice Bell at 10.00am on 1 February 2010 in the Brisbane Registry of the Family Court of Australia.

3. Within 7 days of today, the mother do all such things, sign all such documents and pay all such fees so as to facilitate the intake process at the O Contact Centre for the purpose of the father spending time with the child … born … April 2004 commencing at 12 noon on Sunday 1 November 2009 and monthly thereafter.

4. To supplement the orders made by Justice Murphy on 11 August 2009 at paragraph 8, the mother shall attend the appointment at the office of Dr H scheduled for 10.00am on 7 December 2009 as earlier notified by the Independent Children's Lawyer in that respect.

IT IS NOTED that publication of this judgment under the pseudonym Summers & Ritche is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2385 of 2006

MS SUMMERS

Applicant Mother

And

MR RITCHIE

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties’ child was born in April 2004.  She is but five.  Her parents have been arguing about the parenting arrangements for her for the vast majority of her short life. 

2. This matter has a sorry history that includes significant recalcitrance on the part of the mother in providing time for the father to spend with his daughter. 

3. That sorry history of the matter can be seen exemplified not only by the length of time that the parties have been litigating in this court, but also by orders made by Bell J on 8 July 2009.  

4. His Honour ordered, in what was plainly exasperation at the recalcitrance of the mother in providing the father with time to his daughter, that time be facilitated and supervised within the meaning of section 65L of the Act by the Family Court Child Dispute Services. 

5. However, as part of that order, his Honour ordered that a recovery order issue for the recovery of the child, but that the recovery order lie in the registry and that it be executed if the mother failed to deliver the child “on each and every occasion as is required in order 1 hereof.” 

6. It need hardly be said that an order in those terms is highly unusual and the reasons for his Honour making such an order are, as it seems to me, apparent from the long history of this matter and the recalcitrance of the mother included within it.

7. Consequent upon that order, a family consultant, Ms B, prepared a memorandum, commonly known as a Children’s and Parents’ Issues Assessment Memorandum, relating to the time ordered pursuant to section 65L by his Honour. 

8. I am, of course, aware that, in the instant application, as in all applications in respect of parenting orders, that, notwithstanding the fact that these proceedings are conducted in a busy duty list, with all of the limitations inherent which that implies (see for example, C & C [1998] FamCA 143) that I must, nevertheless, apply the objects, principles and considerations in arriving at any conclusions in these interim proceedings. Those principles were, of course, underlined in the decision of the Full Court in Goode & Goode (2006) FLC 93-286.

9. I will refer, then, to what Ms B had to say in the memorandum to which I have just made reference in some detail in a moment.  Before doing so, however, it is necessary to point out that this matter has been and remains in Bell Js docket and came before me on 11 August by reason of his Honour being on an extended period of leave and the matter being said to have some urgency at that time. 

10. It is important to note that, as part of the orders I made on 11 August 2009, was an order that this matter be adjourned for further mention before Bell J who is, of course, completely cognisant of this matter’s long history, at 10 am on 1 February 2010. 

11. On 11 August 2009, I made a series of orders, all of which, of course, were made within the context to which I have just made reference.  Included among the orders made by me was an order that the child spend supervised time at the O Children’s Contact Centre on one Sunday in each month. 

12. I interpose here that, in the application then before me, the father had sought fortnightly time, which might be seen, broadly speaking, to be consistent with what Ms B had indicated in her memorandum. But, in an attempt to accommodate what the mother was saying at that time were difficulties inherent for her in providing time on a fortnightly basis, and my concerns that any such difficulties for the mother might, as it were, spill over onto the child, I ultimately made an order for the time to occur monthly. 

13. I was also cognisant, in making that order, of the fact that the order required each of the parties to travel an approximately similar distance, O being approximately halfway between the parties’ respective residences.

14. I provided, given the history of this matter, for a first period of time to occur at 12 noon on 12 September 2009 and for the time to occur monthly thereafter.  That initial period of time did not occur. 

15. The father has made contact with the O Contact Centre on at least three occasions.  Ms Bint, who appears as the independent children’s lawyer, has made contact with the O Contact Centre to ensure that their processes are such that they can accommodate the order made by me. 

16. Ms Bint informs me from the bar table this morning (as to which see generally Division 12A of the Act) that the O Contact Centre is ready, willing and able to facilitate the orders made by me, save that, before those orders can be put into place, the mother needs to attend for the intake process required of her by that contact centre. 

17. The mother has failed to do so. 

18. After the orders were made by me, the mother filed a Notice of Appeal and an application seeking a stay of those orders. 

19. Subsequently, the mother filed a notice of discontinuance of that appeal, and therefore, the application for stay consequentially lapsed.  The Application in a Case seeking the stay did, however, seek further orders, and I have assumed favourably to the mother, that the Application in a Case sought orders additional to or alternative to the application for a stay, although one reading of the application might be to the effect that the orders were, in fact, supplementary to the assumed stay.

20. Accordingly, the application today proceeded on the basis that the mother was seeking an order that my orders of 11 August 2009 be “discharged immediately and replaced with original orders made by Bell J on 31/7/2009”. 

21. The reference to the orders made by Bell J on that date is an error and should read 31 July 2008.  It needs to be observed that many applications, and many court orders, have proceeded since those orders were made by his Honour, not the least of which are the orders made by his Honour to which I have earlier referred. 

22. A number of other orders are sought in that application.  Many of them relate to, firstly, a demand by the mother that the father undergo drug testing and orders the mother seeks supplementary thereto. Secondly, the mother seeks orders directed towards the father’s parents. An order is sought that they “are to have no contact.” 

23. An additional order in a similar respect is that “(The father) and his parents are not to attempt to contact me via the telephone or by any other means.  They are also not to approach me or my children outside of the structured contact centre.” 

24. An additional order goes on to provide, “They are not to send any letters or mail to my mailing address.  The only contact (the father) is to have is within the structure of the contact centre or via his solicitor.” 

25. Of course, it needs to be observed that, if contact does not take place as ordered, then as a result of those orders, there would be no contact or communication of any type or form between the child and her father. 

26. It seems plain that that is the intent behind the application and is the position of the mother.  I am reinforced in that belief by passages from Ms B’s report, to which I will make more detailed reference in a moment. 

27. Finally, as part of that application the mother seeks an order that the independent children’s lawyer, Ms Walsh, “is to be removed from this case and another children’s representative be appointed in her place.” 

28. Two initial observations should be made.  First, this application is being heard less than two months subsequent to orders made by me on 11 August 2009 at which many, if not all, of the issues the subject of the current application were canvassed and dealt with in my orders.  Second, this matter will return for management by Bell J, who, as I have said, is fully cognisant with its history, in about three months’ time. 

29. Accordingly, any and all applications made by the mother fall to be considered within that framework and, in terms of their application, should be seen as applying for a period of approximately three months until such time as the matter comes back before Bell J. 

30. Ms B prepared the memorandum to which I have earlier made reference, on 10 August 2009.  In that document Ms B reports on each of the ordered 65L supervised periods of time undertaken in accordance with Bell Js order. 

31. In respect of the very first of those occasions after the order made by his Honour, Ms B observes as follows: 

    “When I arrived on the ground floor I could hear (the mother) speaking in a very loud and agitated voice stating words to the effect of:

    “This is wrong on so many levels ... I should not have to be here ... The Court will not listen to me ... My child should not have to go through this.”  The child, […], was standing beside her mother holding onto a doll’s pram.  Her affect was flat and unemotional.  When spoken to she responded politely and was happy enough to accompany myself up to the childcare room on level three.”

32. In what I consider to be a guardedly understated comment, Ms B goes on to say:

    “(The mother) was advised not to speak about her perceptions of court matters in front of the child and that she would have an opportunity to voice her opinion privately once we had [the child] settled.  (The mother) continued to speak over the top of myself, ignored my advice not to talk in front of the child, and continued to criticise the court and the father throughout the process of signing [the child] into the childcare room.”

33. It is tempting to observe that, if that is the behaviour of the mother at a time when she knows she is under the scrutiny, as it were, of a family consultant, who is an expert in matters of child development, one wonders about how she might behave, and what she might say about the father, when she is left alone with the child. 

34. Ms B’s report goes on to comment on the fact that, by the end of the supervised session:

    “[the child] was relaxed and smiling but still reticent to give her (paternal) grandmother a hug and definitely resisted giving (the father) a hug.  (The mother) was still in an agitated state and still loudly protesting about having to be at the Registry and still stating that “This is wrong on so many levels” in front of the child.  It was noted that [the child’s] affect had become flat and non-emotional once again.” 

35. Further behaviour of the type just described by Ms B was also noted again by Ms B on the second of the supervised occasions.  Ms B reports:

    As I entered the secured room I overheard (the mother) informing the security guard (in front of the child) that, “They took my son away from me.”  (The mother) was crying and was visibly upset.  I observed [the child] to be sitting on a chair away from her mother.  Again, her affect was flat, though she looked a little flushed.

36. During the course of her submissions to me today, the mother submitted that the father’s application was really an application made under the guise of, or at the direction of, an application for time by his parents. She cited as an example of that something said by Ms B in her report. 

37. The passage to which the mother refers is as follows:

    “(The father) tried in vain to engage with [the child] but she would not respond to the bulk of his questions.  His affect was still stiff and not warm and he sat on a chair and watched [the child] explore the room, attempting to engage with her by asking her what she was doing.  [The child] began to slowly relax and respond to some of his inquiries and then announced that she wanted to set up a picnic.  This would have been an excellent opportunity for (the father) to get down on the floor at [the child’s] level and attempt to engage with her, however, he chose to continue to sit on the chair and look down on her.  Again, I stress that this behaviour of the father may be apparent because of his lack of experience in dealing with children.”

38. I would also observe that, by reason of the actions of the mother, the father has, certainly in recent times, had little, if any, opportunity to interact with his daughter. 

39. What I have described as the recalcitrance of the mother, a topic to which Bell J directed his attention on earlier occasions also, was also the subject of discussion by Ms B with the mother.  Ms B reports:

    Again, I tried to explain to (the mother) that her non-compliance with previous court orders and her non-attendance to court-ordered assessment appointments was hindering the court’s attempts to decide what is in the best interests of [the child] and that, had she co-operated with the court in the past, it might have been possible to have reached a satisfactory outcome that ensured that [the child] was indeed safe, but was afforded the opportunity of knowing and having a safe relationship with both her parents.  (The mother) continued to talk over the top of me and I cannot be certain that she heard what I said. 

40. Ms B goes on to report on the supervised time scheduled for 7 August 2009 and notes that, on that occasion, the mother did not attend, as the court order required her to do. 

41. Ms B reports that the father was (understandably) upset by this failure by the mother to attend.  Ms B reports that, in light of the mother’s non-attendance, she attempted to contact the mother via telephone but there was no answer.  She left a message requesting that the mother return her call, but the mother has chosen not to have any contact with Ms B since 31 July 2009. 

42. Ultimately, Ms B assessed that the child was not ready to have unsupervised time with her father and his extended family.  She recommended that there be regular supervised time so that the child could be afforded the opportunity of getting to know her father within what Ms B described as a safe environment. 

43. It needs to be observed that, yet again, court orders for the father to spend time with his daughter have not been complied with. 

44. Today, the mother raises a number of matters which, she says, make it effectively impossible for her to present the child as ordered by the court.  She says that she is without a car, that she cannot afford it and that it would necessitate her and the child catching the bus from where she lives to O and that would need to occur at 3 am. 

45. I find it interesting that the mother asserts that the only means of she and the child travelling to O from a place approximately 1½ hours away for the purposes of facilitating time between the father and the child once a month should involve the time, trouble and expense which she alleges.

46. If that proposition was to be sustained on an interim basis, it would need evidence significantly more cogent and persuasive than that adduced by the mother.   

47. The mother says that she wishes to return to orders made by Bell J on 31 July 2008.  There are, in my view, a number of profound difficulties with that course of action. 

48. First, and by no means the least, is that the mother simply seeks, as it seems to me, to ignore that which has occurred between the making of that order over 12 months ago and the current position confronted by the child today. 

49. Secondly, the orders specify supervision by a person who the mother says is not a friend, nor socially or otherwise connected to her in any way. But, further exploration with the mother indicates that, very shortly after the order was made specifying that person as a supervisor (with such time to occur in the town where the mother and child reside) it broke down.  It broke down because the mother made allegations about the father’s behaviour. 

50. The prospect of that time breaking down if it were to occur in the manner mooted by the mother, whether with the named supervisor or any other alternative supervisor in her home town, are so high, in light of what has transpired in the last 12 or 15 months, as to make such a suggestion almost farcical. 

51. I see there is no prospect whatsoever of regular time being availed of if the proposal put forward by the mother was implemented. 

52. I do not accept that the mother would find it impossible to avail the child of the time ordered by this court to take place at O Contact Centre for two hours each month. 

53. I consider that the mother’s arguments in respect of it are specious and without foundation. 

54. I consider that, more likely, the mother’s behaviour is consistent with her often expressed, and observable, recalcitrance to provide any time between the child and her father, let alone being supportive of it, as the Act, in circumstances such as these, clearly requires her to do.

55. A number of the orders sought by the mother relate to drug testing. 

56. Ms Bint, who appears for the Independent Children’s Lawyer today, submits that the father has indicated in the past a willingness to undergo drug testing but, in circumstances where he has spent no time with his daughter and where the mother’s behaviour has indicated in the past that the likelihood of regular time occurring was slim, that there was little point in testing occurring. 

57. It needs to be observed, and observed clearly, that this court always attempts to act in a way that, whether parties like it or not, proceeds conservatively when issues of safety arise, particularly where the possible presence of disinhibitors such as drugs might be present. 

58. What is plain from the orders made by me on 11 August 2009 is that the issue of safety was uppermost in the court’s mind and clearly taken into account in the terms of the orders made.  All time is to take place at a contact centre.  The court can take notice of the very strict requirements of contact centres, including the O Contact Centre, in ensuring the safety of children placed in their care (almost always) via court order. 

59. I do not accept for one second that if anyone at the O Contact Centre had the slightest concern that the father was affected by drugs, or might be affected by drugs, that they would facilitate time between the father and the child. 

60. The orders sought by the mother are, in the circumstances contemplated by the orders of 11 August 2009, unnecessary and I decline to make them.

61. Next, the mother seeks an order specifically contrary to an order made by me at paragraph 5, namely that the father be at liberty to forward to the child cards, letters and gifts. An additional order directed the mother to ensure that any items sent by the father would be given to, or read to, the child. 

1. The mother offers no sensible argument whatsoever in support of the order proposed that tis order that should discontinue.

2. I reject her application in that respect.

3. The mother also seeks orders restraining the father’s parents in the manner earlier outlined.  The father’s parents are not parties to these proceedings.  They have not been served with any application directed to them. 

4. I can see no evidence before me whatsoever that suggests that any order ought be made, in any event. Further, as Ms Bint submits, it is unlikely that the O Contact Centre would permit third parties to attend periods of time but, whether that is right or not, I reiterate what I said earlier about the responsibilities exhibited by the O Contact Centre in ensuring the safety of children in their care and I have not the slightest doubt whatsoever that they also would do so when it came to the issue of any time between the paternal grandparents and the child. 

5. For those reasons I reject those orders sought by the mother.

6. Finally, the mother seeks an order that Ms Walsh be discharged. 

7. The rarity of an order discharging a properly appointed Independent Children’s Lawyer has been commented on in early decisions of this court, most notably by Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045.

8. I have referred to that decision and to other principles relating to the proper discharge by a court of an Independent Children’s Lawyer in a recent decision of Knibbs & Knibbs [2009] FamCA 840. I repeat the applicable principles there enunciated in the context of this case.

9. I have no evidence whatsoever before me that suggests that any ground for removing Ms Walsh as the Independent Children’s Lawyer is made out. 

10. The substance of the allegation seems to be that Ms Walsh did not facilitate drug testing for a period of time and that there was no contact between Ms Walsh and the mother for a period of time.

11. Those things occurred, as submitted by Ms Bint, at a time when the father, at least for a substantial period of time, was not spending any time with his daughter.  I have referred to the issue of drug testing in this context earlier in these reasons and I repeat in this context what I there said. 

12. There is no foundation, on the evidence before me (even allowing the mother, as I did, to provide significant evidence not contained in affidavit material by reason of the matters referred to in Division 12A of the Act) to suggest any basis upon which Ms Walsh should be removed.

13. I also dismiss that application.

14. The earlier order made by me should be carried into effect.

15. I order accordingly.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  21 October 2009