Tomerford and Tomerford

[2017] FamCA 1132

FAMILY COURT OF AUSTRALIA

TOMERFORD & TOMERFORD [2017] FamCA 1132

FAMILY LAW – CHILDREN – With whom a child lives – Orders – Where the father sought interim orders for a change of residence to the father – Where the parental situation had become fractious, hostile and destructive for the children – Where at hearing the father proposed time for the children with the father to be in a supervised contact centre each alternate weekend – Ordered the children spend time with the father at a supervised contact centre each alternate weekend for no less than two hours

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Tomerford

RESPONDENT: Ms Tomerford

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

FILE NUMBER: PAC 1885 of 2017

DATE DELIVERED: 19 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 18 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McIntosh

SOLICITOR FOR THE APPLICANT: Nolan’s Law

COUNSEL FOR THE RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE RESPONDENT: Blue Water Legal Sydney

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

Orders

By Consent, it is ordered

1. That Orders 13(g), 15, 16, 21 and 22 of orders made by consent on 29 June 2011 relating to B born … 2005 and C born … 2006 (“the children”) are suspended until further order.

It is further ordered

1. That as soon as practicable but in any event within 10 days of the date of these orders the mother and the father shall do all acts and things to enrol in and do the intake processes for Contact Centre 1 Contact Centre at Town 1 (with the intention that the father shall spend time with the children at both Town 4 and Town 1 contact centres).

2. That the father shall spend time with the children each alternate weekend for no less than two hours commencing 6 January 2018 at Town 1 Contact Centre 1 or such other commencement date convenient to the centre.

3. That the time and dates the father spends time with the children are subject to the availability at the Town 1 and Town 4 contact centres and in the event the times and dates are changed by the contact centre, then the changed times shall be the times the father spends with the children.

4. In the event that one or the other of the children are unwell the mother is to arrange for the child that is not unwell to be delivered to the contact centre and shall provide within 24 hours a medical certificate from the child’s treating doctor and shall request of the treating doctor to specify and particularise with clarity the illness from which the child is suffering.

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 Tomerford & Tomerford 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 NEWCASTLE

FILE NUMBER:       PAC1885/2017

Mr Tomerford

Applicant

And

Ms Tomerford

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by Mr Tomerford, the father, for interim parenting orders.

2. The matter came before me in a duty list yesterday 18 December 2017.

3. On 22 April 2017, the father had filed an Initiating Application for discharge of current orders, which had been made on 27 and 29 June and also 7 July 2011.

4. The interim orders sought were for a change of residence to the father, time with the mother for two hours each alternate Friday at a contact centre in Newcastle, costs of same to be paid by the mother, telephone calls for the children with the mother twice per week and a new school for the children in the Newcastle area.

5. The orders proposed at hearing were very different. The orders set out are contained in Exhibit 1 and propose time for the children with the father, supervised in a contact centre in Town 1, each alternate weekend for no less than two hours. All else to remain the same.

6. Counsel for the father submitted that after the release of a Child Inclusive Conference Memorandum on 26 October 2017, the father reconsidered his position and changed his instructions accordingly. It is commendable that he reacted in that way after reading information about the children, particularly their “emotional fragility”. Clearly, the father had hoped that the matter could be resolved on an interim basis and progressed for another trial by his proposal. A reference[1] in the Child Inclusive Conference memorandum could have given rise to that inference:

   The mother proposes the children live with her, and as a way to assess if the children are able to spend time with the father, then they should spend supervised time with the father at [Contact Centre 1] at either [Town 1] or [Town 4].

   [1] Child Inclusive Conference Memorandum dated 26/10/2017, page 2

7. Through her counsel, prior to submissions, the mother denied that she had said what is reported. Further, she does not support any time between the children and the father. Her proposal in her Response to an Application in a Case is that the children live with her and spend time with their father, as ordered by the Court.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The [Applicant] father

   (a)Initiating Application filed 22/04/2017 (amended by Minute of Order dated 18/12/2017[2]);

   [2] Exhibit 1

   (b)Affidavits of the father filed 22/04/2017 and 11/12/2017;

   (c)Affidavit of the father’s wife Ms F Tomerford filed 11/12/2017;

   The [Respondent] mother

   (d)Response filed 30/05/2017;

   (e)Affidavit of the mother filed 29/05/2017;

   (f)Affidavit of the maternal grandfather Mr D filed 29/05/2017;

   Reports

   (g)Child Inclusive Conference Memorandum dated 26/10/2017.

Short History of Relevant Events

1. The father is 57. The mother, 43. They married in 2001 and were divorced in 2010. There were three children of the marriage. The eldest child died as an infant. The parties separated almost nine years ago. The two children, then aged three and two, lived with their mother. The mother moved with the children to live with her parents in Town 1 and has continued to live there with them. The children are now aged 12 years eight months and just 11. The father moved to live with his parents in the Newcastle area. The father remarried in 2011. He continues to live in the Newcastle area with his wife, Ms F. They have apparently lived independently of the paternal grandparents for about the last two years.

2. In the period between May 2009 and July 2011 when the matter was finalised, there were approximately 11 sets of orders in this matter, some of them discharged by consent, many of them by consent in any event.

3. On 1 October 2009, there was, by consent, an order restraining any further abuse allegations raised by the father on behalf of C without leave of the Court. That allegation has been a thread through these proceedings. In any event, the matter was determined partly by consent and partly by the Court in mid-2011.

4. Since then there has generally been compliance by both parties. The mother refers to the periods of time spent by the children with their father as having “rarely proceeded smoothly.” [3]

   [3] Affidavit of the mother filed 29/05/2017, par 6

5. The children have seen a psychologist, the treating practitioner, changing from time to time over the past six and a half years.

6. Orders 17 and 18 of the 29 June 2011 orders, by consent, provided for a psychologist to be appointed to assist the parties with advice and guidance as to the operation of the orders and, if appropriate, expansion of the father’s time with the children.

7. There is a dispute between the parents over the operation of those particular orders. The mother says she advised the father “… of these engagements, but he has played no part in their treatment.”[4] 

   [4] Affidavit of the mother filed 29/05/2017, par 10

8. The father asserts that he has “never been given the opportunity to be involved in their treatment.”[5]  That may be an issue for final trial, if there is one.

   [5] Affidavit of the father filed 11/12/2017, par 6

9. From early 2016, the mother was concerned about reports from the children about their treatment by the father. For instance, that the father was being cranky and yelling, embarrassing them in front of third parties and intentionally hurting B.[6]  The father denies that he has behaved in that way. The mother alleges that the father has not been attentive to the children’s physical care,[7] which is also largely denied by the father other than one occasion on which he says there was some minor sunburn.

   [6] Affidavit of the mother filed 29/05/2017, pars 21 & 22

   [7] Affidavit of the mother filed 29/05/2017, pars 23-25

10. There are also allegations of denigration raised by the mother which the children have told her are in the form of posters and PowerPoints about bad mothers, displayed in the father’s household.[8]

    [8] Affidavit of the mother filed 29/05/2017, pars 27-34

11. B refers to the father in this way, “He just always complains and he hates you”.[9] 

    [9] Affidavit of the mother filed 29/05/2017, par 30

12. The father denies denigration or making such statements about the mother.

13. In April 2013, the mother alleges that she received a call from the Department of Family and Community Services advising that a sexual abuse allegation had been made by the father in relation to C and the maternal grandfather.[10]  That allegation did not proceed to any action being taken.

    [10] Affidavit of the mother filed 29/05/2017, par 40

14. Again, on 18 May 2015, the mother received a call from the Department of Family and Community Services with a similar allegation.[11]  The father generally conceded that he has made complaints to authorities where he has considered that it is in the best interests of the children to do so.[12]  The re-raising of allegations no doubt inflamed a situation where the maternal grandfather has been complained about in the past.

    [11] Affidavit of the mother filed 29/05/2017, par 42

    [12] Affidavit of the father filed 11/12/2017, par 26

15. In November 2016, there was a letter from the father’s solicitor about the issue of entry into the car.[13]  This issue has been most troublesome for the children and represents a destructive contest between the parents. Generally, aged as they were in November 2016, 11 and 10 years, the children were able to get in the car by themselves. That was the father’s position. The mother was in the habit of putting them in the car and ensuring their seatbelts were done up. There seems no obvious reason why she should not have been able to do that. Nevertheless, the parents became incensed by the other parent’s position on this topic.

    [13] Affidavit of the mother filed 29/05/2017, Annexure F

16. In November 2016, there was a letter of complaint by the father[14] that C had spat in his face, had broken his new glasses. He raised the spectre of deliberate alienation by the mother of the children’s affections away from him. The correspondence continued,[15] again about the car and how changeovers were to be managed.

    [14] Affidavit of the mother filed 29/05/2017, Annexure G

    [15] Affidavit of the mother filed 29/05/2017, Annexure H

17. On 9 December 2016 the police attended on the mother’s home. She was asked to go to the police station and served with an Apprehended Domestic Violence Order.

18. From January 2017, it was apparent that the mother began to be reluctant to comply with orders. She blamed the father “for belligerent and aggressive attitude to the children at changeover.” She did not make an application to vary the orders at that time, although an application was foreshadowed by her solicitor.

19. The parties continued what appears to be an absurd argument; the mother wanting the children to get in the car together, with one child sliding across the backseat; the father and his wife being adamant that they should each enter via their own door. The practice of videoing changeovers began and the father refers to having video evidence of this issue. It is easy to see why the children must have come to dread changeovers in this circumstance.

20. The father makes allegations that the mother has been physically aggressive to him, thrown bags at him, pushed him, and damaged his wife’s car by tearing the back pocket of the passenger seat. This is denied by the mother and by the maternal grandfather on behalf of his daughter. The situation had clearly become fractious, hostile and destructive for the children.

21. In relation to this application, supervision is now proposed by the father for himself and the children in a centre. The Independent Children’s Lawyer (“ICL”) is opposed to such orders being made, as is the mother.

22. The Family Consultant who prepared the Child Inclusive Memorandum had read all of the filed material, but, by inference, nothing else, including the extensive history, dating back to May 2009, which includes two reports by Dr R which were taken into account in final orders in mid-2011.

23. The ICL has spoken to the children very recently. They expressed their opposition to spending time with their father. Certainly, they would not agree to spend time with their father in the presence of the Family Consultant.

24. The ICL is against restarting time after at least eight months, if not longer, without a re-introduction process. I readily accept that the children have expressed those views and that they have probably enjoyed respite from the hostility on display between their parents and, to a lesser extent, their maternal grandfather and the father’s wife.

25. What is proposed is that supervised time would start next Saturday, the Saturday before Christmas. In my view, that would have the potential to spoil the whole of the Christmas period, given how uncontained the dispute has been at changeovers.

Considerations & Conclusion

1. I will turn now briefly to those sections of s 60CC of the Family Law Act 1975 (Cth), which I have taken into account in this matter.

The need to protect the child/children from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The relationships between the children with their father are intact, but are under tremendous stress. At this time, the children are expressing the wish to relinquish that relationship, B more strongly than his sister. Safety for the children from psychological harm arising from emotional abuse is a consideration here.

2. The children have been in the past described by Dr R as anxious, particularly B, who the doctor described as an anxious child, raised by anxious parents who had been severely affected by the death of their firstborn. She also referred to B as particularly stressed by sudden changes and transitions. The situation, in the doctor’s view, six, nearly seven years ago is that the situation was somewhat fragile. She described C as a more resilient child.[16]  Accordingly, a period of supervised time to eliminate the children being exposed to their parents’ and others’ behaviour at changeover seems the appropriate course.

Any views expressed by the child/children and any factors (such as the child/children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child/children’s views

[16] Reasons for Judgment dated 7/07/2011, pars 59 & 60

1. I take into account the views expressed by the children to the Family Consultant, and note that both refused to see the father and had what the Family Consultant described as “identical grievances against the father”, which they outlined. The children are a boy who is almost 13 and no doubt at high school next year, and a girl of 11, about to start her last year of primary school. Their views can, to some extent, be taken into account, but I am not in a position to understand whether they are protesting their situation or genuinely wish to give up their relationship with the father.

2. I take the view that it would be wrong to end the relationship between the children and the father without the opportunity for supervised time in circumstances where changeover has been so fraught that it may be at least a part of the explanation for their current views.

3. Orders are made accordingly.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 19 December 2017.

Associate: 

Date:  19 December 2017