Thoma and Wykes (No. 2)

[2007] FamCA 1615

FAMILY COURT OF AUSTRALIA

THOMA & WYKES (NO. 2) [2007] FamCA 1615

FAMILY LAW – CHILDREN – With whom a child spends time with – Orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Thoma

RESPONDENT: Mr Wykes

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1371 of 2005

DATE DELIVERED: 7 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 7 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. Glaister

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr D. Meehan

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Orders

1. All previous Orders be discharged.

2. The Mother, the Father and the child R born on … April 2001 attend upon Mr D for the purpose of family therapy, as directed by Mr D.

3. The Mother and Father each bear the costs of family therapy, such costs not to exceed a total cost of $1,440.00 for each parent.

4. The family therapy shall be as directed by Mr D and shall:

   (a)Be for the purpose of reintroducing the child to spend time with the Father;

   (b)To improve communication between the Mother and the Father;

   (c)To assist the parents with the implementation of these orders; and

   (d)Address the issue of Christmas 2007 time between R and the Father.

5. That the Independent Children’s Lawyer shall write a briefing letter to Mr D and shall provide a copy of these Orders together with a brief explanation of the history of the matter and of these proceedings and provide a copy of that letter to the Mother and the Father.

6. The Mother and the Father have shared parental responsibility for the child.

7. The child live with the Mother.

8. The Mother shall deliver the child to Mr D rooms at … at 4.00pm Monday 10 December 2007 and as directed by Mr D.

9. The child spend time with and communicate with the Father as follows:-

   (a)At times and in ways as directed by Mr D between Monday 10 December 2007 and concluding on 7 March 2008

   (b)By telephone at 5:30pm each Wednesday with the Father to telephone the child on the Mother’s land line telephone or to the Mother’s mobile telephone, which the Mother shall ensure is operational at all relevant times, in the event she is away from home at the time of the call.

   (c)The Father shall make the child available for telephone contact with the Mother during the holiday periods as agreed and in default of agreement at 5.30pm each Wednesday with the mother to call the Father on the Father’s mobile telephone, which the Father will ensure is operational at the relevant times.

   (d)As from 7 March 2008

   (i)During school term periods from the conclusion of school on Friday until 4:30pm Sunday (or at 4:00pm during winter) on each alternate weekend.

   (ii)For on half of all school term holidays as agreed and in default of agreement from the conclusion of school on Friday until 11:00am on the middle Saturday.

   (iii)For eighteen (18) nights of the long summer vacation commencing 2008/2009 at a time as agreed and in default of agreement commencing on 5 January .

   (iv)If the Father would not otherwise be spending time with the child on Father’s Day from 10:00am Saturday until 4:30pm Sunday and if the Father would have been entitled to spend time with the child on the weekend including Mother’s Day then the Child shall be returned to the Mother’s care by 4.30pm on the preceding Saturday.

   (v)In the event that the Mother has the first half of the Christmas holidays, from 4:30pm on 25 December 2009 to 4:30 pm Boxing Day and in each alternate year.

   (vi)In the event that the Mother has the first half of the Christmas holidays from 4:30pm on 24 December 2008 to 4.30pm (25 December) Christmas Day and in each alternate year.

   (vii)In the event that the Father has the first half of the Christmas holidays by agreement the child shall spend from

   a)   4:30pm on 25 December 2008 until 4:30pm 26 December 2008 and in each alternate year

   b)     4:30pm on 24 December 2009 to 4:30pm 25 December and in each alternate year thereafter.

10. Alternate weekend time is suspended during school holiday periods and shall recommence as if the holiday had not intervened at the commencement of the next school term period.

11. For the purpose of changeover, changeovers shall occur

    (a)If the changeover occurs when school is operating then changeover shall occur at the child’s school.

    (b)Otherwise changeovers shall occur at the Contact Centre in L.

    (c)For Christmas day period the changeover shall be at the McDonalds, B.

12. The Mother and the Father shall keep each other informed of their respective residential addresses and telephone contact details.

13. Each parent shall advise the other parent as soon as practicable of the child having medical treatment of a specialist nature or of any serious injury sustained by the child when in their care.

14. The Independent Children’s Lawyer shall forward a copy of these Orders to the child’s school principal together with a letter requesting the principal to forward to the Father at his application and expense any school documents normally sent by the school to parents.

15. Each parent shall ensure the child has her own bed during overnight periods.

16. The Mother and the Father both be and are hereby restrained from

    (a)denigrating the other parent and their respective extended families within the presence of the child; and

    (b)audio or video taping the other parent unless with the consent of that parent.

17. That neither the Mother nor the Father shall institute proceedings under the Family Law Act with respect to the child unless having first obtained the leave of the Federal Magistrate’s Court or Family Court of Australia.

18. In the event either parent proposes taking the child to counselling or other therapeutic intervention then they shall provide the other parent with 14 days prior notice unless it is an emergency situation.

19. That neither parent shall take the child to CASA without order of the Court.

20. That the Order appointing the Independent Children’s Lawyer be discharged from 21 December 2007.

21. Sections 65 DA(2) and Section 62 B apply.

22. All extant applications be otherwise dismissed and the matter be removed from the Court’s list of pending cases.

23. That the Father have makeup time with R on each school term holidays commencing with the July term break in 2008 and concluding with the term break in July 2009 by extending his time until 4:30pm on the last Thursday.

24. That the Independent Children’s Lawyer shall be requested to forward a copy of the reasons for judgment given by me this day to Mr D as soon as practicable.

25. There shall be no order as to costs.

Notation

1. The parents acknowledge that these orders are contemplated with a view to the proposed family therapy leading to a resumption of time between the child and the Father.

2. The Court notes that this matter proceeded in the Magellan list of cases and concluded with the Mother’s concession that the evidence would not sustain a finding against the Father.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1371 of 2005

MS THOMA  

Applicant

And

MR WYKES  

Respondent

REASONS FOR JUDGMENT

1. The child R is 6½ years’ old.  She was only a baby when her parents separated.  She has always lived with her mother.  She spent gradually extending times with her father until she was seeing him for four consecutive nights from Thursday to Sunday in each second week and for half of school holidays, from part-way through 2004. In December 2006 the father over-held R and the mother obtained a recovery order. She then raised concerns about R's sexualised behaviours and comments suggestive of sexual abuse by her father.  His contact orders with R were then suspended.

2. The father has now not seen R for 12 months except once for the purposes of the Family Report preparation in August 2007.  Until late yesterday, the fourth day of this hearing, it was the mother's case that it was not in R's best interests to spend any time with her father.  She described a history of his violence and abuse towards her - the mother - during their relationship, of violence and abuse since the relationship in front of R at contact change-overs, of relentless litigation and dissension even after final orders in 2002 and again in 2004, and then R’s unexplained sexualised behaviour during 2005 and 2006 followed by disclosures in the latter part of 2006.  She also described R as very fearful of her father, and described her behaviour as improving and settling since she had not been seeing him.  She sought a finding at the start of the case that R had been sexually abused by him. 

3. The father denied any abuse of his daughter.  He described an excellent relationship with her.  He said the mother had consistently tried to thwart the relationship, culminating in her attempted alienation by coaching R about sexual abuse, so that he had been prevented from spending time with her, and the mother had thus achieved her intended interruption to their relationship.  He wanted the previous orders in relation to his time with R to be reinstated, and he wanted makeup time with her during the full extent of all school holidays during the next two years. 

4. By late yesterday, the mother, her sister, the maternal grandmother, and Ms W, a CASA counsellor advocate who had worked with R, had given their evidence.  Ms Glaister, counsel for the mother then said that her client conceded that the evidence was insufficient to substantiate an allegation of sexual abuse, or that the father posed an unacceptable risk of abuse to R.  It became her case then that the child should be gradually re-introduced to her father. 

5. The Independent Children's Lawyer (ICL), through counsel Mr Meehan, supported that course, proposing approximately a three month period of family therapy to support R towards re-introduction, to bring the time she spent with her father into line with the previous orders, and for there to be some appropriate make up time in school holidays. 

6. The father was at first somewhat bewildered by the mother's concession.  He is representing himself and when the case took this unexpected turn he did not have the guidance of a legal representative or family or friends or any support in court at the time.  He expressed his astonishment and a degree of irritation that in the face of such serious allegations, his consistent denials, and his preclusion from seeing his daughter for a year, the case might just stop with the mother's concession so that as he put it his "name would not be cleared" and allegations could be raised again in the future.  I was concerned to ensure that the father had some time to consider what had occurred.  After that time he said that he wanted the case to continue. 

7. I pointed out to the parties some obvious factors that generally the less court fighting the better, in terms of moving forward in re-establishing a relationship between father and child.  And, that even if the case continued, the father had no certainty that his name would be cleared in the manner that he sought or hoped.

8. I also made it clear though that if one party wanted the case to continue then it would need to be heard to conclusion in terms of the remaining relevant evidence.  We adjourned yesterday with a view to resuming this morning with evidence in relation to the truncated issues.  This morning each party presented their own Minutes of proposed orders.  They each asked me for time in order to continue their discussions.  They have now arrived largely at consent orders.

9. It is open to parties to resolve their disputes at any time before or during a court hearing.  Generally speaking it is preferable for a child if her parents can together agree on arrangements and it is generally better for a child if her parents can proceed without litigation.  From those perspectives it was not my role to force these parents to continue their litigation.  Nor is it my role to give any reasons that might inflame the situation.  In my view, in this particular case it is important to record some brief observations.  First I am obliged to give brief reasons in relation to some very small matters that I need to determine on behalf of the parties. 

10. The first issue that arose was in relation to paragraph 8(a) of the proposed minutes.  The issue can be encapsulated as follows.  The parties have agreed that there should be family therapy directed specifically towards R's reintroduction to her father, to improve the parties' communication, to assist the parents with the implementation of these orders, and to address the issue of time between the father and R this Christmas.  They cannot agree though, on the outer parameters of the time before the other detailed orders in relation to the time R will spend with her father will commence.

11. The mother says that the child should spend time and communicate with the father at times and in ways as directed by the therapist Mr D, between 10 December 2007 and 7 March 2008.  The ICL agrees with that.  The father wants a shorter time frame.  He wants it to be between 10 December and about 20 January, when he wants the child to spend some extended holiday time with him.  His concerns are that the mother would try to manipulate the counsellor, and/or coach the child, and he thinks the child needs to be “fast-tracked” into spending time with him. 

12. I will not comment on whether either the mother or the father is right in how they perceive things unfolding for R in the next weeks or months.  I am satisfied that the orders as proposed in this draft, and as supported by the ICL, give Mr D enough flexibility to introduce R to her father quickly, slowly, or in any form that he considers is best for her. 

13. The reality for R is that there is work that needs to be done.  Given that any decision must be in her best interests, I do not propose tying the expert counsellor's hands behind his back.  The brief to him is very clear.  This is about re-introducing the child to her father - not whether she should be introduced, but that she will be re-introduced. It should be done at the pace that Mr D considers appropriate in his expert opinion.  I am satisfied that it has more chance of succeeding if the counsellor is able to work within a three month time frame rather than a one month or five or six week time frame.  If Mr D wants to fast track the re-introduction in the way the father would like, he has the room to do that.

14. The next issue is about the finishing time of R’s time with her father in paragraph 8(c)(i) of the draft orders.  The mother wants the change-over point at B.  The father wants L. The ICL agrees with the father.  All parties agree it will be at a contact centre.  It is a question of which one.  I am satisfied that L is the reasonable choice. It means that the parties will be sharing the driving roughly equally, and that strikes me as appropriate.

15. I am conscious that the father's child support assessment is very low.  I am conscious that the mother is the one who has the lion's share of the financial responsibility for R, but I am also conscious everything needs to work as reasonably and as calmly as it can for R.  Roughly equal sharing of the long distances involved in the driving is important.  I am going to make L the change-over point, and leave the times as previously, 4 o'clock in the winter, 4.30pm in the summer.  If I change that, the mother would get home earlier with R (as she would like) but the father's time with the child would be diminished.  I do not believe that would be in her best interests.

16. The next issue for me related to the makeup time in holidays.  The ICL lawyer has proposed that five days be added to each of the term holidays between July 2008 and July 2009.  The argument for the mother is that it is too soon.  The father says that it is a little slow and it should start in the Easter holidays.  Now that I have determined that Mr D's time frame for working with R should be until March 2008, it is premature to add time to the Easter school holidays.  The extension should start in the July holidays.  Twenty days makeup time is obviously symbolic.  It does not in fact make up for what has been lost in the last year, but it is reasonable, acknowledging that R needs good holiday time with her mother to whom she is very closely attached. It would be a punishment to her if she were taken away from that opportunity for longer than the period suggested by the ICL.

17. I am going to add an order that Mr D shall be given a copy of these reasons today, to assist in his therapy with the family.

18. Towards the end of the submissions the father suggested that sometimes the change-over should be in T not L.  I am going to leave it in L.  These parents do not need any fertile areas for dispute or confusion. Clarity and certainty are of particular importance. 

19. I noted earlier that in this particular case it is important to record some brief observations.  That said, I am conscious that I have not heard all the evidence, most particularly the cross‑examination of the father.  I acknowledge that my observations are therefore in the context of his evidence being at its highest - untested - and the mother's evidence having been thoroughly tested and concessions having been made.

20. My first observation is that R's life has been absolutely enmeshed in litigation.  She has been consumed in the litigation that has been around her.  Her parents have litigated on and off in the Federal Magistrates Court since 2002, and more recently in this court.  Several rounds of final orders have been made.  The mother has brought various applications for recovery orders.  The father has applied for contravention orders.  They have had Supreme Court proceedings in relation to property (through no fault of their own unfortunately the jurisdiction has been divided).  They have conducted child support litigation.  They have had debt issues between family members, in a Magistrates’ Court.  They have had intervention order proceedings being litigated between various family members.  They have had criminal court proceedings involving a conviction of the father for an assault on the mother, but then a successful appeal by him to the County Court. And for the last year they have been locked in this absolutely bitter dispute revolving largely around the sexual abuse allegations.

21. The mother's concession that the sexual abuse allegations could not be sustained on the evidence was realistic.  There were parts of her evidence that did not impress me and I was left with some concerns as to her over-protectiveness of R at times.  R was breast-fed until very late, she was taken to a psychiatrist at one year of age, she was often carried to change-over points which were bound to be fraught because she suffered separation anxiety in any event.  R's mother refers to her father almost entirely as "[… the father’s first name]", not "dad" or "daddy".  R seems to have been discussing what should be spoken about with "the judge" from a very early age. That said, again I emphasise that I have not heard the father cross‑examined.  But even on his material put at its highest, I expect there were aspects of his evidence that were going to fail to impress me as well, and I will touch upon one in a moment.

22. I also had some concerns that there was a degree of “gamesmanship” from time to time in the mother's approach, for example, the stand-off that occurred at a changeover between the general store and the pub in the local area. 

23. On the one hand I was pleased to see the mother and R surrounded by very close and loving relatives.  On the other hand, there was some concerns about partisanship particularly when it came to an alleged disclosure in March 2007 between R and her aunt.  At a time when the mother said the child had not even spoken about her father once since she had stopped seeing him, she allegedly made a spontaneous disclosure to her aunt, co-incidentally just before the CASA counselling was going to stop.  I found that suspicious.

1. I also had some concerns surrounding the evidence of Ms W, in the sense that given the policy or philosophy underpinning her centre's work, being to fully accept the concerns raised by the mother.  It was arguable that the child's comments were interpreted in that light, perhaps without taking into account, as holistically as might have been done, the objective markers around everything that the child said.  The evidence I heard could not lead me to conclude that the mother had deliberately brain-washed the child.  Putting her case at its lowest and not having heard the father tested, it seems probable that she was prepared to believe the worst about the father, and that behaviour and comments by R in that context might well have been seized upon so that small pieces of evidence snow-balled into more serious allegations, at a time when she was genuinely worried about contact and its affect on R. Events were then to some extent taken out of her hands when she had the CASA and DHS people offering support for the concerns that she expressed. 

2. What is clear is that R is currently very anxious and frightened about spending time with her father.  There is sufficient material for me to conclude that it is probable that R was the subject of enormous hostility between her parents and enormous and ongoing conflict at changeover times. I accept the mother's account when she talks about hostility, and sometimes even violent exchanges at change-overs.  It appears to have been a dreadful situation for R, with her mother holding onto her and her father trying to prise her from her arms.  It is something that I think both parents have participated in and that it is likely that the only finding that I would have been able to make is that blame lay on both sides.

3. It would be naive to believe that R has not been affected by the on-going litigation, the extraordinary tension and hostility at change-overs, by some negativity in her mother's household towards her father, and now a year’s interruption in her relationship with him.  It is for those reasons that I regard it as particularly important that R have the help that she needs towards being re-introduced to her father and towards seeing him consistently.

4. I am pleased with the orders ensuring that the parents will not be brought into contact with each other.  I am pleased with the orders that will ensure that they do not litigate without the leave of the court.  I say to both of them that despite this long and sad history R is still very young.  She deserves the opportunity to feel safe, to be loved by, and to love and enjoy both her parents, and I hope that the parties will genuinely take full advantage of the family therapy that is now to be offered.  The stakes for them are very high: not in terms of winning court cases, nor in terms of scoring points against each other, but in terms of the mental and emotional well-being of their little girl. 

5. I will make orders in accordance with the Minutes of orders dated today's date.  I direct they remain on the court file and the solicitor for the applicant mother will prepare the orders within seven days.

6. There will be no order as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date: 7 December 2007