Torres and Torres
[2010] FMCAfam 1456
•17 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TORRES & TORRES | [2010] FMCAfam 1456 |
| FAMILY LAW – Parenting – interim – non-compliance with recently made final orders – allegations of suicide attempts by 11 year old child. |
| Family Law Act 1975, ss.60CA, 60CC, 62B, 64B, 65D, 65DA, 67U, 67V, 68L, 69ZT |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS TORRES |
| Respondent: | MR TORRES |
| File Number: | SYC 5754 of 2007 |
| Judgment of: | Monahan FM |
| Hearing date: | 15 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Friend & Co. Lawyers |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Self Represented Litigant |
ORDERS
THE COURT ORDERS THAT:
All extant applications be adjourned to this Court on 4 March 2011 at 10:00am for mention (“the mention hearing”).
The Respondent facilitate the return of [Z], born [in] 1998 (“the youngest child”) to the Applicant by no later than 12 noon on
18 December 2010.
The Respondent facilitate [X], born [in] 1995, and [Y], born [in] 1997 (“the elder children”) to spend time from 12 noon on 18 December 2010 with the Applicant pursuant to paragraph 4(b) of the Orders made on 12 August 2010.
The Applicant have liberty to apply on 24 hours notice should the Respondent fail to comply with paragraphs 2 and 3 herein.
The Applicant as soon as possible obtain a referral from a general medical practitioner to a psychologist for the purpose of commencing therapy to improve her parenting relationships and her parenting skills (“the therapy”).
For the purposes of paragraph 5 herein, the Applicant should either have completed the first session of the therapy or obtained an appointment with the relevant psychologist on or before seven (7) days before the mention hearing.
All current parenting orders remain in full force and effect.
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), the youngest child and the elder children be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(i)Upon appointment, the Independent Children’s Lawyer (“ICL”) file a Notice of Address for Service;
(ii)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the ICL copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(iii)The ICL fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
The ICL conduct an interview with the youngest child prior to the mention hearing.
If possible, the ICL be appointed from Legal Aid New South Wales, Bankstown as they have provided previous independent children’s representation in this matter.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Torres & Torres is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5754 of 2007
| MS TORRES |
Applicant
And
| MR TORRES |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MS TORRES (“the wife”) against
MR TORRES(“the husband”). The wife has filed three applications in recent times. They are:
·firstly, an Application – Contempt on 27 October 2010 that alleges that the husband has deliberately breached various paragraphs of the orders made on 12 August 2010 (“the final parenting orders”) by retaining the child, [Z], born [in] 1998 (“[Z]”) and by not facilitating the wife spending time with the other children, [X], born [in] 1995 (“[X]”) and [Y], born [in] 1997, (“[Y]”) (collectively “the other children”);
·secondly, an Application – Contravention filed on 29 October 2010 alleging multiple breaches of the final parenting orders; and
·thirdly, and more specific to this decision, an Initiating Application filed on 2 November 2010 seeking interim and final orders including an order for the husband to return [Z] and for the final parenting orders to be varied in respect of the spend time arrangements for [X] and [Y];
·fourthly, the wife also seeks the costs of this application.
The wife relies on her affidavit sworn on 26 October 2010 and filed the following day and she was represented at the hearing last Wednesday by her solicitor, Mr Friend, and he also appears at today’s interim judgment hearing.
The applications were all made returnable to the duty list on
15 December 2010 – that is, two (2) days ago. Given that that particular duty list was extremely busy and challenging, the Court only agreed to consider the wife’s request for the urgent orders sought in her Initiating Application, that is, for the husband to facilitate [Z]’s return to her.
This application is opposed by the husband who appeared for himself at the interim hearing of this matter on 15 December 2010 and he again appears for himself today.
In his Response filed on 23 November 2010, the husband opposes the orders sought by the wife in her initiating application and he also seeks various changes to the final parenting orders that were made in August 2010. Most relevant to this interim hearing, he seeks an order for [Z] to live with him and spend alternate weekend time with the wife.
The husband relies on his affidavit sworn on 11 November 2010 and filed on 23 November 2010 and he also relies on three tendered documents to which reference will be made later.
Background
The parties have a long history before this Court and, it would appear, before the Family Court of Australia.
An application for consent orders was filed by the parties on 15 August 2007 but the parties failed to answer various requisitions by the Family Court. The application for consent orders was thereafter dismissed by Registrar Stow-Smith on 21 August 2007. The application for the approval of consent orders made reference to a previous file number – 4136 of 2001 – and orders made by the Family Court of Australia in 2001. The Court has not been able to see that file or those orders for the purposes of this hearing although the file, which is in storage, has been requisitioned. The application for consent orders that was dismissed sought orders for the “[wife] to have ‘custody’” and the husband “to have ‘visitation’” and stated that “‘visitation’ is being slightly amended.”
The next application to be filed was an Initiating Application filed in this Court by the husband on 29 October 2008 seeking orders, inter alia, for [Y] and [Z] to live with him and for the eldest child, [X], to live with the wife. This application was opposed by the wife in her response filed on 3 December 2008. Of note was the order sought by the wife for the child, [X], to be returned to the wife to live with her. These competing applications came before Orchiston FM on 5 December 2008 and on that occasion her Honour made orders including one for the appointment of an Independent Children’s Lawyer (“ICL”). Her Honour also made orders for [X] to live with the husband and [Y] and [Z] to live with the wife.
The matter returned before her Honour on 6 February 2009 and orders were made by consent of the parties and the ICL as follows:
“(1) That the child [Y], born [in] 1997 and [Z] born [in] 1998 spend time with the father from 5:00pm until 7:00pm every alternate Sunday commencing 8 February 2009, with the mother to transport the children to and from the father’s residence at the commencement and conclusion of such a spend time period.
(2) That the child, [X], born [in] 1995, spend time with the mother from 5:00pm to 7:00pm, every alternate Sunday commencing 15 February 2009, with the father to transport the children to and from the mother’s residence at the commencement and conclusion of such a spend time period.
(3) The father do all things to ensure that [X] is made available and shall do all things to ensure that he sees his mother.
(4) The mother shall do all things to ensure that [Y] and [Z] are made available and shall do all things to ensure that they see their father.
(5) Neither parent shall denigrate the other parent to the children or any of them either to or in the presence of the children.[sic]”
The matter returned before her Honour on 18 March 2009 and the parties entered into yet further interim parenting orders by consent. Those orders provided, by way of summary, for:
·the wife and husband to have equal shared parental responsibility for all three children;
·for [X] to live with the husband;
·for [Y] and [Z] to live with the wife;
·for [Y] and [Z] to spend time with the husband from 10:00am until 5:00pm each alternate Sunday, commencing 22 March 2009;
·for [X] to spend time with the wife from 10:00am till 5:00pm every alternate Sunday commencing 29 March 2009.
There were again orders to require both parties to do all things to ensure that the respective children spend time with the other parent and the parties and the children were required to participate in a Unifam “Keeping In Contact” Program and there were also orders made with respect to facilitating telephone time and relating to participation in school and extra-curricular activities.
Orchiston FM also made orders on 18 March 2009 listing the matter for final hearing in October 2009. Given her Honour’s resignation effective from October 2009, the final hearing was re-listed before McGuire FM and the hearing proceeded, on my reading of the file, on 8 October 2009.
It would appear that his Honour adjourned the matter following the final hearing for judgment hearing on 15 January 2010. From my reading of the file his Honour did not release his decision on that day following submissions from the husband that the child, [Y], was now living with him. Given this development, his Honour appears to have adjourned the proposed judgment hearing and made comprehensive interim orders by consent. In summary, those orders provided as follows:
·that the husband and wife have equal shared parental responsibility for all three children;
·that [X] live with the husband;
·that [Y] and [Z] live with the wife;
·that the child or children not otherwise living with a party spend time with that party; and
·that the children and the parties to participate in the Unifam “Keeping In Contact” Program.
The orders seem to replicate much of what was previously agreed to.
On 4 February 2010, McGuire FM made orders in Chambers seeking an updated family report. His Honour also interestingly made the following orders:
“(2) The matter be deemed part heard and be listed for further hearing in Sydney commencing 20 May 2010 at 10:00am with an estimate of two days.
(3) The parties continue to attend and participate in the Unifam “Keeping In Contact” Program as set out in the orders made by Federal Magistrate Orchiston on 18 March 2009.”
When the matter returned before His Honour on 20 May 2010 it would appear that the wife was ill. Consequently, the hearing did not proceed. By way of summary, his Honour made the following interim orders on that occasion:
·that the wife and husband have equal shared parental responsibility for all three children;
·that [X] and [Y] live with the husband;
·that [Z] live with the wife;
·that the children spend time with the other party that they do not otherwise live with; and
·that the parties and the children participate in the Unifam “Keeping In Contact” Program.
His Honour also adjourned the matter for final hearing.
The matter subsequently returned before his Honour for final hearing on 12 August 2010 but on that occasion the Court was advised that the parties had agreed on final orders being made. Those orders were indeed approved by his Honour that day. In summary, the final parenting orders provided as follows:
·that the parties have equal shared parental responsibility for all three children;
·that [X] and [Y] live with the husband.
·that [Z] live with the wife.
Paragraphs 4 and 5 of the final parenting orders dealt with the spend time arrangements:
“4. [X] and [Y] shall spend time with the mother as follows: (a) during school terms commencing on the first weekend of each term, on alternate weekends from the conclusion of school on Fridays until the commencement of school on Monday mornings; (b) the half of each school holiday period by agreement, failing agreement the first half.
“5. [Z] shall spend time with the father as follows: (a) during school terms commencing on the second weekend of each term, on alternate weekends from the conclusion of school on Fridays until the commencement of school on Monday mornings; (b) the half of the school holiday period by agreement, failing agreement the second half; (c) the father shall ensure that Ms P shall not stay overnight at his home at times that [Z] is spending overnight time with him until 31 December 2010. It is noted that Ms P may be present in the home whilst [Z] is present at other times.”
Paragraphs 6 and 7 of the final parenting orders seem to replicate orders that have previously made between the parties. Paragraph 6 states that:
“6. The father shall do all things to ensure that [X] and [Y] are made available and shall do all things to ensure that the children spend time with their mother.”
Similarly, paragraph 7 states that:
“7. The mother shall do all things to ensure that [Z] is made available and shall do all things to ensure that he spends time with the father. The parties also agree to an order to continue counselling and appropriate psycho-therapy as recommended by Unifam.”
Paragraph 8 and 9 of the final parenting orders states:
“8. They also agree to sign appropriate authorities in respect of schools and the like.”
“9. That each parent shall sign the appropriate authority at the children’s schools and at any school which the children may in the future attend, to authorise the school to forward to the other parent copies of each child’s school report and any other document ordinarily provided to parents.”
Paragraph 10 of the final parenting orders is interesting. It states that:
“10. The parents be restrained from (a) discussing with any of the children their views in relation to where they live; (b) discussing any aspect of these proceedings with the children; (c) showing the children any document pertaining to these proceedings; (d) questioning the children in relation to any views alleged to have been expressed by them to date; and (e) questioning the children to excess about activities in the home of the other parent.”
The balance of the orders will not be read into the transcript but they represent, by and large, orders that the parties had previously agreed to in these proceedings.
Issues
The dispute to be considered in this decision is limited to whether [Z] should return forthwith to the wife's care or not. As stated, the Court will consider the wife's other applications on another occasion.
Agreed and Disagreed Facts
The parties agree (or are not in significant disagreement) in relation to the following:
·that there was a disagreement between the wife and the children that occurred on or about 3 September 2010 and the wife admits in her affidavit that she became, and these are her words, “hysterically upset” and took the children to the husband's home;
·that [Z] told the wife on 4 September 2010 that he wanted to live with the husband. [Z], it would appear, came back into the wife's care on or about 6 September 2010. It would appear both parents attended at [Z]'s school that very day;
·that on or about 13 October 2010 [Z] came into the husband’s care where he has remained ever since;
·that [Z] has not spent any time with the wife since coming into the husband's care (i.e. since the commencement of the fourth school term in 2010); and
·that the other children have not spent any time with the wife since shortly after the final parenting orders were made.
The parties also indicated at the interim hearing that they were in disagreement over the following matters:
·whether [Z] had made any disclosures to the other children and to the husband that he had attempted suicide whilst he was in the care of the wife (as the husband would assert) during the period the proceedings were before this court for final hearing.
·whether it was in [Z]'s best interests to remain in the husband's substantial care, as the husband seeks, or to return to the wife's care, as she seeks; and
·that the other children have determined that they do not wish to see the wife (as the husband asserts). The wife does not agree that this is so.
Parties Submissions and the Evidence
Mr Friend for the wife and the husband in person gave submissions to the Court in light of the evidence before the Court. Given other pressing Court business, the Court does not propose to herein summarise the submissions made but the transcript would reflect those submissions.
Law and Discussion
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). Parenting orders are defined in s.64B of the Act. Parenting orders deal with issues or matters such as where the child (or children) is to live; the time a child (or children) is to spend with the other parent or person; or otherwise allocate parental responsibility in respect of children. At this point the Court notes that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Although not specifically sought by the wife, under s.67U of the Act the Court has the power to make a recovery order in respect of a child as it thinks proper. This provision is subject to s.67V of the Act in that, in deciding whether or not to make an order, the Court must regard the best interests of the child (in the present case, [Z]) as the paramount consideration. In this case, the wife seeks an order that the husband return [Z] to her care, presumably pursuant to s.65D.
Section 60CA through s.60CC of the Act deal with how the Court determines the best interest of the child. The most relevant to this particular interim hearing are the primary considerations in s.60CC(2) and, of course, the additional considerations in s.60CC(3) where relevant, and I will consider those considerations shortly.
At this point it is noted that the Full Court of the Family Court of Australia, in the case of Goode & Goode (2006) FLC 93-286, guides this Court’s approach when making interim decisions and interim orders in respect of parenting disputes. At this point, it is noted that in paragraph 81 of that decision the Full Court stated:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
Clearly, this matter is such a case. More specifically, this raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination. That having been said, the Full Court in Goode also stated that the legislative pathway must be followed. In other words, the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed.
The Court is not today asked by the wife to make an order as to parental responsibility. There is, after all, a current and, indeed, final order in place. Interestingly, though, the husband is seeking in his Response that an order for equal parental responsibility be again made in any event. That is also curious because the husband has made some serious allegations about [Z]’s mental health yet he does not oppose [Z] spending time with the wife or her retaining parental responsibility. He simply asserts that [Z] does not wish to return to live with the wife or spend time with her.
Given the circumstances, the Court does not propose to embark on any examination or indeed, re-examination of parental responsibility in its decision. Nor does it intend to consider each party’s request for changes to the final orders. It will only consider the issue about whether the husband should facilitate [Z]’s return to the wife or not and otherwise, performance of the existing final orders.
Primary Considerations: s.60CC(2)(a)
The Court is required under s.60CC(2)(a) to consider:
“…the benefit to the child of having a meaningful relationship with both of the child’s parents.”
At this point let me note that “meaningful” does not mean “equal” but it clearly signifies that both parties should be involved with their children and, consequently, signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is the right of the child’s.
Clearly, the evidence supports the proposition that the wife and the other children are not having any meaningful relationship at this point in time. Indeed, it would appear that the wife has not spent any meaningful time with the other children since shortly after the final orders were made and with [Z] since the commencement of the fourth school term in October 2010.
The Court is required under s.60CC(2)(b) to consider the need to protect the child, or the children, in this case, but specifically [Z], from physical or psychological harm and being subject to or exposed to abuse, neglect or family violence. There is no doubt that it would be in the children’s best interests, and that would be including [Z], to develop a meaningful relationship not just with his father but with his mother. That needs to be balanced in respect of protecting a child such as [Z] or the other children from any physical or psychological harm and the like.
Given the nature of the allegations here made by both parties, and it must be stressed at this stage that they are just allegations at this point, the Court is satisfied nonetheless that there is a need to test the issues of whether [Z] has in any way been psychologically harmed by either of the parties or whether his alleged threats of self-harm have any substance whatsoever. There are issues here warranting investigation and the Court needs to tread cautiously in the arrangements that will be necessary today.
Additional Considerations: s.60CC(3)
As to the additional considerations in s.60CC(3), the Court clearly needs to consider the views of the child and the nature of the child’s relationship, or in this case the children’s relationship, with the other parent. The husband asserts that the children, including [Z], do not wish to live with the wife nor spend time with her. This, of course, is most concerning. It is also contrary to the updated family report and the recommendations of Ms M in paragraphs 31 through 42, inclusive. More specifically, in respect of [Z], Ms M states in her report at paragraphs 39 through 42:
“39. [Z] told me he does not wish to spend any time with his father and he does not feel comfortable around him. He said this is because of what he did. He explained that his father had lied to him and his mother about Ms P and he had told them he had thrown her out and would not have her back. He said that his father had referred to Ms P as a ‘resource’. He also told me that ‘we [that is he and the mother] were disgusted’ when they saw
Ms P was coming to the report interviews with his father. [Z] told me ‘he has really hurt me emotionally’ and then added that his father had not hurt him directly but had rather hurt him through his mother and his grandmother. He said that his father had taken the kids away from her [that is the mother] and that she had raised them for years. He told me that [X] and [Y] should live with him and the mother and that he prays to God that ‘I’m not going to live with him’.
“40. [Z] said that it had been okay spending time with his father on alternate weekends prior to [Y] going to live with his father but told me that circumstances had changed since [Y] had lived with her father and he no longer wants to spend time with his father. [Z] became visibly upset when he spoke about the possibility of him spending time with his father.
“41. [Z] told me that his mother ‘is a good mum and that she is loving and caring and that she never tries to hurt me emotionally’ and that all his mother wants is for him to be happy. He told me that ‘we [that is, he and his mother] love [Y]’ and told me that [Y] had promised him that she would not leave. [Z] said: ‘If I left her [that is, his mother] her life would be shattered.’
“42. [Z] told me that his father is ‘bad person who is cruel’ and his father had ‘twisted his brother’s and his sister’s minds’. He said that his father is ‘a person I would not like to be proud of as my dad’. He told me that his mother thinks that dad is ‘ruthless and everything bad’.”
The husband asserts that, on or about 3 September 2010, [Z] disclosed to him that he had attempted to end his life by suicide when he was living with the wife. The husband also asserts that this disclosure was allegedly made by the child to his siblings in the year or so prior to the child disclosing this to the husband, that is, during the period that the final hearing was taking place. What is clear is that neither [Z] nor the other children disclosed this to either the family consultant, Ms M, or the ICL. The husband also asserts that he acted upon [Z]’s disclosure by raising his concerns with [Z]’s school and by taking [Z] to his general practitioner who gave a referral for the child to attend with a clinical psychologist. The husband also took the child to the [omitted] Hospital. Indeed, the Court allowed him to tender into evidence three documents in respect of this.
The husband also referred to contacting the Department of Community Services and prior to the commencement of delivery of this decision he gave the Court the following references. He asserts that on 4 September 2010 he had a conversation with a “[omitted]”, receipt number 1-PJ9MJT; on 7 September 2010, a conversation with one “[omitted]”, receipt number 1-PK891E; and on 9 September 2010, a discussion with one “[omitted]”, receipt number 1‑PL6UDR.
As indicated a moment ago, the husband was allowed to tender into evidence three documents. The first document was a mental health assessment, presumably from his general practitioner, Dr F, dated 13 November 2010. That became Exhibit “RF1”. The second document was a triage form from the [omitted] Hospital dated 20 November 2010. It became Exhibit “RF2”. And the third document was a report of Ms L, clinical psychologist, dated 15 December 2010, that is, the day of the interim hearing, and that became Exhibit “RF3”. These documents were allowed into evidence over the objection of the wife’s solicitor.
Clearly, s.69ZT(1) of the Act gives the Court an enormous discretion to deal with documents being tendered that might, in a non-child related proceeding, fall foul of the Evidence Act 1995 as to their admissibility. Of course, pursuant to s.69ZT(2), when read with sub-s.(4), the Court may give such weight, if any, as it thinks fit, to evidence admitted as a consequence of a provision of the Evidence Act not applying because of s.69ZT(1). The relevant criteria, of course, is set out in s.69ZT(3), which will not be read into the transcript.
The material was allowed into evidence because at face value it supports the husband’s assertion that [Z] has made certain disclosures about attempted suicides. Indeed, Exhibit “RF3” reveals that the child indicated four suicide attempts in the last five years, that is, between the ages of seven and 12, but of course there is no evidence that he made similar disclosures of this kind to either Ms M or the ICL. The timing of these disclosures is also curious. Whilst the husband asserts he became aware of the alleged suicide attempt on or about
3 September 2010, it appears that he never raised this matter with the wife, or indeed with this Court, until he filed and served his recent affidavit.
The husband claims he spoke to the school, yet there is no evidence that any notification was made by the school to the Department of Community Services. Perhaps that evidence does exist. That evidence was not before me at the interim hearing. It is also clear that [Z] returned to the wife’s care following this alleged disclosure and returned to the father’s care after an incident in October 2010 between [Z] and the wife. It is also curious that the husband waited until November 2010 to seek medical and psychological assistance for [Z]. The tendered documents suggest that the GP, Dr F, became aware of [Z]’s alleged psychological problems on 13 November 2010. That is a date after the husband was served with the wife’s three applications.
This is clearly the case. Why? Because the husband’s affidavit in support of his response states that it was affirmed on 11 November 2010, even though it was not filed until 23 November 2010. In other words, while the husband made allegations about [Z]’s disclosures of alleged suicide attempts in his affidavit, there is no independent evidence that [Z] has said this to a third party until 13 November 2010, when he allegedly saw Dr F and obtained a referral to Ms L. The Exhibit “RF2”, the triage form from the Sydney Children’s Hospital, states the date as 20 November 2010, and of course in her report dated 15 December 2010, that is, the day of the hearing itself, Ms L, the clinical psychologist, states that her clinical assessment of [Z] took place on 11 December 2010. Consequently, it is open for the Court to question the authenticity of the assertions by [Z] despite the serious nature of what he has allegedly said. The Court notes that [Z] turns 12 next Sunday.
As to the other relevant additional factors, there is no doubt that what the husband asserts the children are saying to him is quite different to what they told the family consultant in April this year.
As to the “willingness and ability of the parties to encourage a close and continuing relationship between the children and the other parent”, that is a critical factor here. The husband has made a unilateral decision to withhold the children from the mother. There are issues of concern raised with children being withheld by parents for whatever reason. Clearly the Court has been unable to test the parties’ evidence because the hearing was conducted during a busy duty list without the benefit of cross-examination.
The Court is required to consider the “likely effect of any change in the child’s circumstances”. Clearly, there needs to be some change here. The present situation cannot continue. We cannot have children being withheld by parents for whatever reason without a proper examination of the reasons for it.
As to “any other fact or circumstance”, the wife asserts that the husband is motivated by child support considerations. This assertion is untested. There is also evidence from the wife herself that is disturbing about the way she handles disputes with her children. She admits questioning the children about the living arrangements in direct contravention of the final parenting orders and becoming hysterical in arguments with the children. That is her own evidence.
Conclusion
Having considered the respective applications and submissions, in light of the available evidence and the relevant statutory provisions, the Court is satisfied that despite the serious allegations made by the husband, the evidence would not support that [Z]’s mental health concerns drove him to withhold the child from the wife since October 2010. The fact that he waited until after the wife had commenced these proceedings and served the documents upon him before taking [Z] to any health professionals suggests that he was initially unconcerned about the alleged suicide attempts or, more likely, has influenced them. Paragraph 42 of the family report, (which is quoted above) is confronting. That said, the Court has concerns about the wife and her parenting of the children, particularly [Z].
The final orders are just four (4) months old. They followed a lengthy court process, including not one but two family reports, a part‑hearing of the matter over two days, and the input of an ICL, but more importantly, they had the consent of the parties. Within weeks, they were not being complied with by both parties. These orders should not be torn up by this interim decision without there being reasons for doing so. I am not satisfied that the evidence presented by the husband meets that test. Certainly, at this stage, [Z] has made some serious disclosures, but their timing is highly questionable.
There will be orders today for the husband to cause [Z] to return to the wife by no later than 12 noon, tomorrow, 18 December 2010.
The final orders, of course, provide for the other children to spend time with the wife in the first half of the long summer school holidays this year. The husband admits they are not spending that time. He will, therefore, be directed to facilitate them spending time with the mother from 12 noon on 18 December 2010 in accordance with the orders. In the event that this does not occur, the wife will have liberty to seek to relist the matter before this Court on 24 hours notice, and otherwise request the Court to make a recovery order. The Court is confident that that will not be required.
Given the concerns that the Court has, the Court will list the matter for mention in the new year and make an order today for the reappointment of the ICL, if available, or a new ICL, if the former ICL is not available, in respect of the Initiating Application and Response only.
The Court does not propose to consider the other applications filed by the wife at this stage, but will consider listing them for hearing at the mention hearing.
The wife will be required by the orders made today to consult with her general practitioner as soon as possible and by no later than seven (7) days prior to the mention hearing to obtain a referral to a psychologist to deal with her parenting skills problems. The Court will ascertain at the mention hearing the status of that referral and whether that counselling has commenced.
There will be orders of the Court to reflect this decision and the right to settle the reasons for this decision is reserved.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 12 January 2011
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