Tapp and Robin

[2008] FamCA 212

FAMILY COURT OF AUSTRALIA

ROBIN & TAPP [2008] FamCA 212

FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – CHILDREN – Family consultants
FAMILY LAW – EVIDENCE – Expert evidence

Family Law Act 1975 (Cth) Part VII

APPLICANT: MS TAPP

RESPONDENT: MR ROBIN

INDEPENDENT CHILDREN’S LAWYER: MS. L. BILLEAM

FILE NUMBER: MLF 1781 of 2004

DATE DELIVERED: 18 March 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: Bennett J

HEARING DATE: 18 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms J Turner
Armstrong Collins & Delacy

SOLICITOR FOR THE RESPONDENT: Ms L Kelly
Kelly & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Ms L Billeam

Victoria Legal Aid

Orders

IT IS ORDERED

1. That the further hearing of this matter is adjourned to 9.30 am on Monday 14 April 2008 for a determination of what (if any) further interim orders there should be for the children M born … August 1995 and S born … May 1997 to spend time with the father.

2. That the parties by themselves and by attendances of the said children or either of them do all acts and things necessary to undergo a further assessment by Ms W, Family Consultant, such as will enable Ms W to give evidence in relation to what further (if any) time the children or either of them should be spending with the father. Whether the assessment of the further intervention by Ms W is to be delivered orally to the court on the adjourned date or in writing is a matter entirely within the discretion of Ms W.

3. That this matter is adjourned for telephone mention before the Honourable Justice Bennett at 9.15 am on 31 March 2008 to check on the readiness of the matter for the interim hearing, that the parties have been notified of when he or she and or the children will be required to attend upon Ms W and to take any objections by either of the parties or the independent children’s lawyer to Ms W discussing with each of the said children (at her discretion) the outcome of the criminal proceedings brought against the mother and recently finalised.

IT IS DIRECTED:

1. That the reasons for judgment this day be transcribed and when transcribed a copy be made available to the practitioners for all parties and to the Director of Child Dispute Services.

IT IS NOTED:

1. That the parties will be notified of appointment dates with Ms W which appointments are likely to take place in early April 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1781 of 2004

MS ROBIN

Applicant

And

MR TAPP

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me for mention in anticipation of a final hearing on 26 May, 2008. It concerns two children, M born … August 1995 and S born … May 1997, who live with their mother, Ms Tapp. Mr Robin, the father, is seeking regular time with them.

2. The children are each hostile to the father and the family is being assisted by a contact centre, through a Parenting Orders Programme.  M is seeing her father once a week on a Thursday, at the contact centre between 4.30 and 6.30pm.  The father currently sees S when he (S) practices tennis on Wednesday afternoons between 4.30 and 6.30 pm. 

3. S suffers from cystic fibrosis.  The pressure on the family is considerable due to S’s ill-health, much reduced life-expectancy, to the need for frequent hospitalization.  S also requires physiotherapy and medication and a high level of care and attention.

4. M is the more hostile of the children toward the father.  The father of the children is not confident that M’s behaviour could be contained by him if he were to see her outside the contact centre.  The mother, who has been the primary carer of the children since birth, does not object to the children spending time with the father, but struggles with residual anger toward the father arising from the break down of the relationship and the separation.

5. It was submitted by the father that the mother pleaded guilty to two charges of assault arising from an incident on October 31^st, 2006 when the mother and M assaulted the father, and the father's partner.  The father alleged that the mother was required to enter into a bond, to undertake an anger management course and undertake some community service. 

6. Today, by telephone Ms Billeam appeared as the independent children's lawyer (ICL), Ms Turner, solicitor, appeared on behalf of the mother; Ms Kelly, solicitor, appeared on behalf of the father.  The father attended by telephone, too. 

7. The ICL has had some discussions with the contact centre with a view to establishing whether S might spend more time with his father.  She put a proposal, the origins of which are in dispute, that in addition to Wednesday afternoons, the father could spend further time with S from 7.30 am to 2.30 pm on Saturdays, which is another tennis practice session. 

8. The ICL also suggested that the children’s time with the father could be increased through a program provided by D Counselling Service, of five activity days conducted on alternate Sundays, commencing on 4 May 2008.  The ICL has distributed information concerning the program to the contact centre and the practitioners for the parties.  If the family want to participate in this, it would be necessary for the parents to attend an information session. The next information session for the forthcoming series takes place on 29 April 2008.

9. The ICL’s proposal was that M attend the D Counselling Service activity program with S.  It is an activity program based on physical exercise and physical activity, such as rock climbing and other exciting sporting activities.  I expressed some concern that M’s involvement could lead to a disruption to the activities, if she engaged in behaviour which was abusive or disrespectful of her father, and the capacity of this to reduce S’s enjoyment of time with his father.

10. The ICL’s view, not based on any expert opinion, was that M may moderate her behaviour if she was participating in a program run by other people in the company of other children, their parents and facilitators or coordinators.  I do not share that confidence and it is a matter about which I would appreciate the views of Ms W (the family report writer), if she is able to see the children before the adjourned date.

11. The mother has said that, at the moment, M feels rather disadvantaged.  I understand her to mean that M feels marginalised because she is only seeing her father on Thursdays at the contact centre, whereas her brother is seeing him on Wednesdays at his tennis practice.  While it is not beneficial for a child to feel marginalised or left out, circumstances may demand different arrangements for different children.  What is in the best interests of one, might not be in the best interests of the other. 

12. Whether these proposals emanated from the contact centre or came from the father and was adopted by the contact centre subsequently, or at all, matters little.  The parties pre-occupation with this issue illustrates the deep running antagonism and mistrust between the parties suggests an inability by some to prioritise the needs of the children over their own physical and emotional needs.

13. The trial is presently scheduled for 26 May 2008. That may be premature.  I will not take any steps to vacate that hearing now. The trial date can be reconsidered when I have a clearer view of the arrangements between the children and their father.

14. I have read Ms W’s family report of 16 July 2007.  She observed the relationship between the children and the father to be fractured.  I recall my earlier concern that the parenting which the children have received to date may carry life long emotional implications for them, in terms of role models, understanding of acceptable and anti-social behaviour and very significantly, the capacity (or incapacity) of each to enter meaningful and fulfilling relationships later in life with adults and children.  I refer to parenting by both parents, as well as by members of their extended family.

15. Returning to the dispute, the ICL submits that the contact centre has no difficulty with the father spending time with S on Wednesday afternoons, on Saturdays from 7.30 am to 2.30 pm and on each alternate Sunday for the activity program run by D counselling service.  Ms Turner, for the mother, submits that it should be either the D counselling service program or Saturday tennis but not both.  That is the issue which I will determine on 14 April 2008 by way of a brief interim hearing.

16. I have adjourned the matter for a further interim hearing before me so that a further updated report can be prepared by Ms W.  If she considers it appropriate and practicable, I suggest she meet with the children soon and be in a position to deliver an oral or written report on the adjourned hearing date, including any recommendation as to what time should be spent with the father until trial.

17. I am informed that the mother has been in contact with Ms G at the contact centre.  If she thinks it is appropriate, Ms W may speak with her and make further inquiries in relation to the D counselling service program. 

18. There is one other matter which I would ask the parties and Ms W to consider prior to the adjourned date, which is an explanation to the children of the outcome or effects of the criminal proceedings recently faced by the mother.  The incident which gave rise to the charges must have been a significant event in the lives of the children, particularly in M’s life.  As I recollect, on occasions M endeavoured to convince her father to drop the charges against her mother, which he refused to do.  I cannot say whether M did this on her own initiative, or at the behest of the mother.  Having regard to the sort of behaviour to which M was exposed, as an observer and a participant, it seems to me desirable for the court to have an expert perspective on the best way forward for M, and the impact of those events on the time she is to spend with the father.

19. There will be a further telephone mention at 9.15 am on 31 March 2006 at which reasons for the interim hearing will be assessed and Ms W’s availability advised.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  3 April 2008