TOMERFORD & TOMERFORD

[2011] FamCA 240

FAMILY COURT OF AUSTRALIA

TOMERFORD & TOMERFORD [2011] FamCA 240

FAMILY LAW - CHILDREN – Interim parenting orders – whether the time spent by the children with the father should be reduced – where there were interim orders already in place – where those interim orders were made in anticipation of final hearing in three and a half months – where final  hearing was delayed – a conservative approach is taken and allegations made against the father are accepted until they can be tested at final hearing – where the father has made repeated applications in relation to abuse of the children by the maternal grandfather – where the father enrolled one of the children in another school without consulting the mother or notice to the children – the children spent extended overnight time with the father – the children experienced heightened anxieties as a result of these circumstances – finding that the children’s time with the father should be reduced to day time visits only – where the Independent Children’s Lawyer and the mother requested supervised time – supervised time would increase the children’s anxieties – supervision not required

Family Law Act 1975 (Cth) s60CC

APPLICANT: Ms Tomerford

RESPONDENT: Mr Tomerford

FILE NUMBER: NCC 600 of 2009

DATE DELIVERED: 11 March 2011
Ex Parte

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 11 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas of Counsel

SOLICITOR FOR THE APPLICANT: Dom Velcic & Co

COUNSEL FOR THE RESPONDENT: Mr Greenway of Counsel

SOLICITOR FOR THE RESPONDENT: Viney Williams Solicitors

INDEPENDENT CHILDREN’S LAWYER Ms K Wooi

Orders

1. That the Court varies Order 1.2 of the Orders made 28 July 2010 so that it reads:

   “That the children spend time with their father failing agreement otherwise each alternate Sunday from 10.00 am to 4.00 pm commencing Sunday 13 March 2011”.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 600 of 2009

Ms Tomerford

Applicant

And

Mr Tomerford

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case filed on behalf of the mother, Ms Tomerford.  Other than procedural orders, the main order sought is for time between the children and their father to be reduced to four hours each alternate Sunday and for that time to be supervised at Contact Centre 1 in Town 1. 

2. The children in question are B, born in April 2005 and C, born in December 2006.  B is almost six and C is just four.

History of the matter

1. The parties have been separated for two years.  They married in 2001 and separated on 19 January 2009.  The mother and the children, then aged three and two, went to live with her parents in Town 1.  The father filed the first application in March 2009.  In April 2009 the father moved to live with his parents in the Newcastle area. 

2. Interim orders were made by consent on 5 May 2009.  They provided for the children to live with their mother from 5.00 pm Tuesday to 12.00 noon Sunday, and with their father from 12.00 noon Sunday to 5.00 pm Tuesday.  This was a pattern of five nights with mother and two nights with father. 

3. On 30 June 2009 those orders were discharged and fresh interim orders were made by consent in a similar pattern;  that is, five nights with mother, two nights with father, but in a different order of days:  2.00 pm Saturday until 9.00 am Thursday with the mother;  9.00 am Thursday to 2.00 pm Saturday with the father. 

4. In September 2009 the father filed a Notice of Risk in relation to allegations that the maternal grandfather had engaged in inappropriate conduct towards C.  On 1 October 2009 orders were made by consent including:

   6.The parties are hereby restrained from taking the children to any medical appointments in relation to allegations of sexual abuse, Police or welfare authorities, without the leave of the court, following an application by the Independent Children’s Lawyer.

   7.…

   8.The father is hereby restrained from bringing any further application in relation to abuse of the children, [B], born […] April 2005 and [C], born […] December 2006 without first obtaining the leave of the court and in respect of any such application for leave is to file an affidavit in support of any further allegations of that nature (sic).

5. In late January 2010 the parties and children were interviewed by Dr R, the single expert in the matter.  Dr R’s report was released in April 2010.  The report did not support the children living with the father but did support ongoing contact between the children and their father.  On 28 July 2010 orders were made by consent reducing the time between the children and their father.  The orders provided for the father to spend time with the children on alternate weekends from 9.00 am Friday to 2.00 pm Sunday, commencing 30 July 2010.  These are the orders which have continued to date. 

6. The matter I must determine is whether there should be a further adjustment of current interim orders.  Those orders made by consent on 28 July 2010 were in contemplation of a four day final hearing commencing on 16 November 2010.  The matter was not ready to proceed on that day and the matter was re-allocated for a six-day final hearing from 27 June to 1 July inclusive and 4 July 2011. Counsel for the Independent Children’s Lawyer raised the point that at the time the interim orders were made on 28 July, the parties were contemplating final determination by the end of 2010.  That has some significance. 

7. It is unusual for there to be further interim orders made in these circumstances where a final hearing is pending in approximately three and a half months.  The only basis for doing so is if the best interests of the children make it necessary to do so.  The facts which gave rise to the application were that B was enrolled to commence school on 28 January 2011 at School 1.  The mother apparently took the view that the orders of July 2010 would in some way be automatically affected or changed as a result of B starting school.  The mother says she “raised the question” with the father in a telephone conversation, but could not get a response.  Consequently on 12 January 2011, the mother caused her solicitors to write to the father in person as the father’s solicitors had filed a Notice of Ceasing to Act in the Court on 4 January 2011.  The statement made in that letter is as follows:

   As you are aware, [B] commences school on Friday 28 January 2011.  As such, the present orders with respect to the time the children spend with you will not be able to be maintained.  We are instructed to propose that the time the children spend with you be varied to commence at 9.00 am every second Saturday and still conclude at 3.00 pm on the Sunday.  That variation is to commence from 29 January 2011.

8. Counsel for the father made the point, not unreasonably, that this approach was somewhat highhanded and not consistent with the legal position.  Clearly, orders do not change through mere assertion.  However, it was proper to try to negotiate a change at this time.  It would have been reasonable for the parties to acknowledge that with B starting school, there would be a very limited period for the father to spend time with B on a Friday morning between 9.00 am and the time at which school commenced.  The father did not acknowledge that there was any such difficulty in relation to B and there was apparently no counterproposal. 

9. The parties, in my view, missed an opportunity to negotiate a necessary change.  The mother did not make B available at 9.00 am on 28 January, but it is hard to see how she could have reasonably made B available for what was probably a few minutes of time before he was due to start school.  On that first day of school, 28 January 2011, a police officer attended the mother’s residence and spoke to C.  Two weeks later, on 11 February 2011, the father made an ex parte application to the Town 1 Local Court for a recovery order in respect of both children.  It is freely conceded on behalf of the father that the basis for the application was not failure to make the children available for periods of time, but something quite different.  No doubt this will be an issue in the final hearing.  For the purposes of this hearing, the relevant matter is that a recovery order was in fact made on 11 February 2011.  However, I should say that if counsel for the father was suggesting that the registrar of the Local Court at Town 1 advised the father to proceed in a particular way, that seems improbable given that the orders relied upon, namely 5 May 2009 (subsequently discharged), and the grounds advanced in support of the recovery order could only have come from the father. 

10. On 11 February 2011 when the father was next due to see the children, the mother was approached by detectives from the JIRT outside the home of the maternal aunt.  The mother was there with the children.  All parties apparently departed to the mother’s home.  The recovery order from the Local Court at Town 1 was produced at 8.30 pm that night when the children were already in bed.  Agreement was reached between the parties for the father to collect the children the following morning.  Both parents are to be given credit for having reached that agreement in trying circumstances. 

11. The mother attempted to restore the matter to the Local Court in Town 1 on 14 February but was unsuccessful.  She says in paragraph 18 of her affidavit that she rang to speak to the children on more than one occasion and that these requests were refused.  The children were returned by the father to the mother at 7.30 pm on 17 February by agreement.  The impact on the children of their time with the father is set out in paragraphs 21 to 24 of the mother’s affidavit, as follows:

    21.The children returned and appeared relieved to be home.  Both children were very clingy and would become upset when they were not in my presence.  [B] would not leave my side and wanted me to carry him everywhere.  [B] cried every 10 minutes.  [C] said to me when going to bed and whilst crying words to the effect, ‘Why did you keep missing me, mummy?  Weren’t we home when you came to get me?  Why did you forget me?  She also said, ‘Daddy has a new preschool for me and said I have to go to that school with [B].  I want to go to [B’s] school near mummy.

    22.[B] was also clingy and said to me words to the effect, ‘Daddy said I have to go to a new school called [School 2] and it has three kindergartens.   Daddy bought me three uniforms but no black shoes yet.

    23.[B] did not want to go to his new school in [Town 1] on Friday 18 February 2011.  I have real concerns as to the safety of them now when spending time with the father.

    24.[B] has been upset and confused over the extended stay with his father.  He is now unwilling to go to school and wants to stay with me instead.  Previously he had a very positive attitude to school.  [B] said, ‘Mummy, please don’t make me to go to daddy’s anymore.  I didn’t like that big stay.’

Issues

1. In an interim proceeding such as this, the Court should take a conservative approach and accept the allegations until they can be tested in a final hearing.  On that basis, I find that there has been an adverse impact on both children of their removal from their mother and an extended stay during which they had no contact with their mother in any way.  Therefore there are two concerns which raise welfare issues for the children. 

2. The first is the impact on the children of their removal from the mother for five to six days without explanation or contact, during which period they were also enrolled (at least B was enrolled) in a different school without warning or explanation.  This has apparently led to heightening of the children’s anxieties, a matter which is of particular significance in this case.  In her report of March 2010, Dr R said:[1]

   If the children’s anxious behaviours do not settle, then the frequency of their visits to [the father] will need to be reviewed.  It is important to minimise their distress over loss of their father and paternal grandparents, and their anxieties around the parental discord and legal proceedings.  Both of these sets of emotions will disrupt their development. 

   [1]  Page 17, Dr R’s report

3. The second issue of concern in relation to the children’s welfare is that the father was apparently focused on raising serious allegations of abuse, neglect and parental misconduct in a Local Court that had no knowledge of the history of the matter.  This application was dealt with on an ex parte basis. Although there was a reference to the mother’s solicitor in the application, the application omitted the name of the Independent Children’s Lawyer appointed in the Family Court proceedings.  There was no disclosure of the existence of the order made on 1 October 2009 which restrained the father from making applications in relation to abuse of the children without leave of the Court.  This raises some concern that the father is more focused on the litigation than the welfare of the children. 

Best interests of the children

1. In determining the best interests of the children I will consider the matters in section 60CC.

Primary Considerations

1. There is a benefit to the children in maintaining their relationships with their father, which are meaningful ones, although they have recently been put under strain as set out above.  The children do not require protection from family violence, abuse or neglect. 

Additional Considerations

1. In subsection 60CC(3), the following apply:

   (a)The children are, in a sense, expressing a view that they do not want any more ‘big stays’ with their father and that they feel some fear about being peremptorily removed from the mother again;

   (b)The relationships between the children and the mother, who is their primary carer, are significant and the mother’s anxiety has been heightened by recent events;

   (c)The father and the mother have each promoted the relationship between the children and the other parent, although the father’s recent conduct represents, at best, a lapse of judgment;

   (d)The orders made will result in a change in the children’s circumstances.  On one hand, the children will be assured that they will continue to have regular contact with their father; but, in my view, they will also be reassured by having smaller discrete periods of time without overnight contact;

   (e)There will be some difficulty experienced by the father in having daytime contact only since, given the travel required between Town 1 and Newcastle, the time will need to be spent with the children in the Town 1 area or environs;

   (f)Each of the parents has a capacity to meet the needs of these young children, but that issue will be more fully explored in the final hearing;  and

   (l)The parents have been in conflict for a minimum of two years. There is an urgent need for this matter to be finally determined and, at least at this stage, there is no reason to think final hearing will not commence, as scheduled, at the end of June 2011.

Conclusion

1. Accordingly, I do consider that the period of time that the children spend with their father should be reduced to ensure that the children feel safe and do not have anxieties highlighted by Dr R heightened any further.  In particular B is an anxious child and is vulnerable to increased anxieties. In the early stages of his life, B was raised by parents who were still suffering from the aftermath of the tragic death of their first child. Both were assessed by Dr R to have been both sad and anxious as a result of their child’s death. 

2. Accordingly, there should be no contact between the children and the father through School 1, at which the children were re-enrolled by the mother. Further, the children are likely to feel most safe and content, if there is no overnight contact with the father on the further interim basis and visits are spent in the Town 1 area or its environs. 

3. Supervision was part of the application and was pressed on behalf of the mother and supported by the Independent Children’s Lawyer.  In my view supervision is not required to ensure the children’s safety and I decline to make such an order.  The children were not at risk in their father’s care in the immediate sense.  However, they are at risk of emotional harm while in the care of the father because of his propensity to bring applications regarding alleged abuse of the children and his propensity to enrol them in a different school without forewarning or explanation. Supervision would not prevent the father making a further application without the required leave and without notice to the other parties, no matter how foolhardy it would be for such a further application to be made.  I accept the submission that these proceedings are to ensure the safety of the children, and are not about any form of punishment for the father.  Accordingly, the orders reflect a change to day time contact only, which will be effectively in the children’s local area so that no fear or anxiety is reactivated in the children.  It is at least possible that if the children only saw the father in a supervised context, this would aggravate their fears and the belief that the father is a danger to them. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 March 2011.

Associate: 

Date:  7 April 2011