Temple and Dobrovic (No 2)

[2010] FamCA 723

FAMILY COURT OF AUSTRALIA

TEMPLE & DOBROVIC (NO. 2) [2010] FamCA 723

FAMILY LAW – CHILDREN – application by the mother seeking a suspension of the child’s time with the father – where a lengthy trial concluded and final orders made only a short time ago – where the child has been exposed to ongoing conflict between the parties – where the mother alleges that the child is being physically and emotionally abused by the father – where the father alleges that the mother is alienating the child – best interests – held that it was inappropriate to vary orders that were recently made based on the limited evidence before the Court – orders that the child’s time with the father continue

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Temple

RESPONDENT: Mr Dobrovic

FILE NUMBER: ADC 2920 of 2010

DATE DELIVERED: 12 AUGUST 2010

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: BURR J

HEARING DATE: 12 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MOTHER APPEARING IN PERSON

SOLICITOR FOR THE APPLICANT: NOT APPLICABLE

COUNSEL FOR THE RESPONDENT: MS DICKSON

SOLICITOR FOR THE RESPONDENT: MELLOR OLSSON

Orders

UPON NOTING the possibility of the Court requiring comprehensive reports from both Dr F and Mr L after the appointment of the Independent Children’s Lawyer has been effected:

1. Further consideration of:-

   (a)the proceedings generally;

   (b)the issue of the preparation of a further Family Report, both as to whether or not it is appropriate to order same and if so, who should be instructed to prepare such report;

   (c)the need for the issue of a Recovery Order; and

   (d)the father’s application for costs

   be adjourned to 2.45 pm on Tuesday 7 September 2010 before the Honourable Justice Burr NOTING THAT:-

   (e)this matter no longer forms part of the Court’s Magellan Project; and

   (f)leave is granted to the father to relist the matter on short notice in the event that the mother fails to comply with the delivery of the child into the care of the father pursuant to paragraph 2 of these Orders.

2. The mother do deliver the child C (“the child”) born … September 2003 into the care of the father at 4.00 pm on Saturday 14 August 2010 with handover to be effected at the B Children’s Contact Service UPON NOTING that thereafter the arrangements for the child’s care are to be as ordered by the Honourable Justice Strickland on 22 April 2010.

3. Pursuant to Section 68L of the Family Law Act 1975 as amended the said child C be independently represented and that such representation be arranged by the Legal Services Commission of South Australia and that to expedite the appointment of the Independent Children’s Lawyer (“ICL”) each party do forthwith cause to be furnished to the said Commission a copy of all documents filed herein by that party since 22 April 2010 (being the date Judgment was delivered by the Honourable Justice Strickland in proceedings numbered ADF1736 of 2006) AND IT IS REQUESTED that the ICL so appointed be Mr Graeme Hemsley who was the previous ICL in the proceedings.

4. Within fourteen [14] days of the date hereof the mother do file and serve such further affidavit(s) annexing reports and materials as she wishes, but to include as annexures thereto:-

   (a)any relevant medical certificates and reports from Dr BL;

   (b)a report from Dr F indicating the mother’s compliance to date with the Orders made by Justice Strickland on 22 April 2010; and

   (c)a transcript of, and the original recording of, the telephone conversation with the father on 21 July 2010.

5. The father be at liberty to file and serve another affidavit dealing with the further allegations of the mother and annexing thereto a transcript of, and the original recording of, the telephone conversation with the mother on 21 July 2010.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2920 of 2010

MS TEMPLE

Applicant

And

MR DOBROVIC 

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Initiating Application of the mother filed on 4 August 2010.  In it, by way of both the final orders sought and the interim orders sought, she effectively seeks the suspension of the times that the parties’ child C (“the child”) born in September 2003 spends with the father.  Those times were constructed in orders made by Strickland J on 22 April 2010 after very extensive trial proceedings which lasted for a period of some 11 days or thereabouts.  Not only was the trial quite lengthy and bitterly contested, but the proceedings between the parties have been bitterly contested and disputed since December 2006.  Thus the history of litigation between the parties has almost reached its fourth year. 

2. The child will shortly turn 7 years of age and thus for more than half of his lifetime he has been engaged in bitter and contested proceedings between his warring parents.  I have not had an opportunity to review all of Strickland J’s reasons in full but suffice to say that the child has been exposed to significant conflict between his parents and a significant level of interview, assessment, therapy and counselling such that it seems to have become almost a part of his daily experience and existence.  Now the proceedings are to be agitated yet again and so the child’s experience will continue to be that of two parents intent on engaging in further litigation and promoting their own particular view of what represents the child’s best interests.

3. The mother’s said Application has been met by a Response handed this day to the Court in which the father seeks a raft of orders including that all previous orders of the Court be suspended and that the child now live with him and only have supervised time with the mother.  Thus, in the vernacular, “the gloves are off again” and the parties are intent on spending the next year or two of their lives again in this Court and again ensuring that the child will continue to be engaged in an atrociously destructive process.  The Court cannot avoid that.  For so long as parents of children wish to litigate, then in most instances they are given that right to do so within our system of democracy.

4. The matters that the mother contends now require further proceedings to be pursued and further agitation of all of the issues between the parties was in relation to a general fear that she has that the child is being physically and emotionally abused whilst he is in the care of the father.  It would seem that it is a position that she will never be able to concede as not occurring and it is a continuation of the lengthy process of concern and allegation raised by her over almost four years now.  The specific event though which she relates in her affidavit filed on 4 August 2010 is as to a telephone call that she received and in which she was engaged on 21 July 2010.  In her affidavit and in the responding affidavit of the father handed to the Court this day, there are differing versions of both the content of the call and the reasons why the call eventuated.  The only fact which appears certain is that the child again was exposed to considerable conflict and again became highly distressed as a consequence of the impossible relationship that his parents share. 

5. The mother is committed to the view that it is all the father’s fault and that the child is distressed because of abusive processes adopted by the father.  The father is convinced that the distress which was evident in the child from almost the time that he arrived into his care on that occasion is as a consequence of confusion and alienation generated in the child by the mother.  These are regrettably familiar tales in this Court.  The child’s position though is worse than most children’s in that having suffered through four years of litigation to date, he is about to have the same experience for another year or so. 

6. There are a number of materials that have been provided by each of the parties and some provided by the mother include material from a Ms BL who is a clinical psychologist specialising in sleep problems and issues.  She has provided a couple of brief reports, one of which is dated 29 July 2010 and annexed to the mother’s affidavit filed on 4 August 2010 and the other is a report handed to me this day dated 9 August 2010.  In both Ms BL promotes the view that in her assessment the child is genuinely frightened of his father and does not want to spend any time at his house.  However, there are elements contained in her reports which suggest that the possibility exists of her opinion in that regard having been warped by the information she was provided by the mother and as one example of this, in her report letter of 9 August 2010, she records:-

   “[The child’s] father, has a documented history of violence and has apparently also contacted and threatened [the mother] which would be in direct contravention of the restraining order in place.”

7. With the greatest of respect to Ms BL, she is not in possession of the information that the trial Judge had when he conducted the proceedings.  There has certainly been no input from the father, it would seem, to the history garnered by Ms BL.  It would seem that she is totally reliant upon the information provided to her by the mother.  At first glance it would appear that that information is inaccurate in a number of respects in terms of the detailed findings made by Strickland J in his Judgment of 22 April 2010.  

8. Other material provided by the mother today included a medical certificate dated 30 July 2010 and another one dated 2 August 2010.  They are by two different doctors but from the same practice which is the N Family Practice.  The latter of the two reports is particularly unhelpful in that it gives no indication of why it is that the doctor is of the view that the child is unfit for normal school between 2 August and 6 August 2010.  However, in a letter forwarded by the mother to the father’s solicitor dated 6 August 2010 she provides further information which is confirmatory of the first medical certificate dated 30 July 2010 and which records that the child’s presenting problems were gastroenteritis and croup.  I am informed by the mother that the child is still not at school by reason of those medical issues but she does indicate that he is certainly on the improve.

9. The mother’s allegations, if true, are of concern and will require the Court’s attention.  The father’s allegations as to alienation by the mother are also of concern and will also require the Court’s attention.  However, it is inappropriate and improper, in my view on the evidence provided to date, to vary the orders made by Strickland J on 22 April 2010 after a very lengthy trial.  Those reasons provided by Strickland J are extremely comprehensive and run to some 72 pages.  Whilst the mother informed the Court today that she wished to exercise her right to appeal his Honour’s decision, the record demonstrates that she has not done so and so those orders stand and more significantly, those findings of Strickland J also stand. 

10. The Act obliges me to consider the chidl’s best interests as the guiding factor in making any determination. That arises pursuant to Section 60CA of the Act. Section 60CA of the Act then guides me to the numerous provisions that are recited in Section 60CC. In my view, given the recent decision of Strickland J and the paucity of information that the Court has from independent sources presently, it is both unnecessary and inappropriate for me to make individual findings under all of those sub-headings in Section 60CC. I have nonetheless had regard to them in a general way. The issues though remain starkly those presented by the two primary considerations, namely the competing issues of establishing meaningful relationships between parents and protecting the child from harm.

11. I will make a number of orders now which advance the process and will hopefully give the Court a better indication of what might represent the child’s best interests in the short term leading regrettably to what seems to be another bitterly contested trial between the parents.

12. Conscious of the child’s recent illnesses documented by the medical certificates before the Court, I am reluctant to order that he return to his father’s care immediately as pursuant to Strickland J’s orders the next occasion that he is due to be placed in the care of the father is tomorrow.  I am informed from the bar table that the father has relatives visiting from interstate for this coming weekend and it was anticipated at the time those plans were made that the child would be in the father’s care and those relatives could enjoy some time with the child.  As the Family Law Act reflects and as social scientific research demonstrates, exposure by children to extended family members is an important component of their development.   

13. I note too that handovers which do not take place at school occur at the B Children’s Contact Service and if that service is not available, then at the H Police Station. 

14. Allowing the child an additional day or two to recover from ailments which can prove to be significant and debilitating, I believe it would be appropriate that the father enjoy what he is entitled to enjoy pursuant to Strickland J’s orders but countenancing the medical issues that the child has had and from which he has now only recently recovered, I intend to order that the father’s time to be spent with the child commence on Saturday afternoon at a time that the B CCS can facilitate handovers. 

15. I make the determination that the child ought to return to his father almost immediately and that Strickland J’s orders be complied with not just for the reasons already given, namely that some very serious allegations made by the mother have been explored in great depth by the Court in the past and found in large part to be without foundation, and not just because the mother then did not, on the record, appeal those orders, but also because of observations that his Honour made that are pertinent and particularly relevant to the ultimate findings of the Court but certainly any interim determinations.  I quote the following paragraphs from Strickland J’s Judgment as follows:- 

    “241.The issue then becomes with whom the child should primarily live.  I can say that given my findings as to the mother’s behaviour and her attitude, and the impact that that has had on [the child] and his wellbeing, it would be tempting to provide that [the child] live with his father, but in the circumstance of [the child] having lived with the mother since separation, now some five years ago, and the dramatic changes that a new living arrangement would entail, I am prepared to give the mother one final chance to put the interests of [the child] ahead of her own.  However, that said, it is important that the child is able to spend frequent and regular unrestricted time with his father, and it seems to me that the second alternative proposal of the father fits the bill.  It leaves the primary residence of [the child] with the mother yet provides for the child to spend sufficient time with the father to allow for him to have a major role in his life and including in his schooling.  I consider that it is both in the best interests of [the child] and reasonably practicable to put such an agreement in place.

    245.The mother’s counsel in his final address suggested that the mother had only acted on the information that she was given by Families SA and by the CPS.  For example, given the ‘substantiation’ of the alleged sexual abuse of [the mother’s child T], the disclosures made to Ms [A] by [the subject child C], and the consequent recommendations that there be no contact between [C] and the father, it was not unreasonable for the mother to have acted as she did.  However, I do not accept that submission.  I find that the mother did not just innocently sit by.  She was the protagonist, she did not like the father, and she set out to do whatever she could to punish him, and in the process she used their child [C].  She was not interested in innocent explanations, or indeed any explanations, and she pursued the father regardless.  She simply had to be in control.

    246.As a result of these findings the issue became with whom the child should primarily live, and to repeat I have opted for the child living with the mother but with [the child] having frequent, regular, significant and substantial time with his father.  However, for that to be in [the child’s] best interests the mother must change her attitude towards the father and his relationship with [the child].  This is the mother’s one and only chance to undo the damage that she has caused to [the child] and to his relationship with his father.  To assist her she needs counselling and I note that one of the orders sought by her is just that.  It would also be important that the counsellor have a copy of this judgment.”

16. I will order again the appointment of an Independent Children’s Lawyer and to minimise the child’s exposure to the institutional abuse that frequently accompanies these proceedings, I intend it to be the same Independent Children’s Lawyer as was engaged in the proceedings prior to the delivery of Strickland J’s reasons.  I will further oblige the parties to file and serve further affidavits annexing the various materials that they would want the Court to consider.

I certify that the preceding sixteen (16) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  12 August 2010