Tracy and Tracy

[2019] FamCA 960

FAMILY COURT OF AUSTRALIA

TRACY & TRACY [2019] FamCA 960

FAMILY LAW – CHILDREN – Best interests – Where no contact between the child and the mother is in the best interests of the child.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Tracy

RESPONDENT: Ms Tracy

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

FILE NUMBER: SYC 1151 of 2014

DATE DELIVERED: 21 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 6, 7, 8, 9, 10 May 2019, 21 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT: El Baba Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Lazarus Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

Orders

1. The father shall have sole parental responsibility for the child X born … 2008.

2. The child shall live with the father.

3. The father shall give permission, consent and shall otherwise facilitate:

   (a)       The mother receiving school reports, paediatric reports and any reports from a doctor or clinician relating to X;

   (b)       The mother’s attendance at annual speech nights and the mother has given notice she will attend all speech nights;

   (c)       The mother having access to the school portal;

   (d)       The mother receiving X’s school photographs; and

   (e)       The mother knowing X’s school.

4. The father is restrained from advising, reminding or otherwise insinuating to X that he was abused by the mother or abandoned by his mother.

5. The father is restrained from advising any person or institution that there has been a finding by a court or by anyone in authority that X was abused by the mother when he was in her care or abandoned by his mother noting the father believes this to be the case.

6. The parties shall at the time of the making of these Orders exchange their email addresses and mobile telephone numbers and shall update the other within seven days of any change and the father is ordered to provide the mother’s details to X.

7. The father shall keep the mother informed of any change of residential address of X.

8. The mother shall not approach X at the event specified in Order 3.b. or otherwise make her presence known to X. (Noting that this Order does not restrain the mother from attending X’s school and meeting and communicating with his teachers from time to time in the absence of X).

9. The mother is restrained from attending X’s school at any time other than in accordance with Order 3.b. or to attend a pre-arranged appointment with a member of the school staff outside of school hours and is to notify the father by text message at least 3 days prior to her attendance at the school.

10. The mother is at liberty to forward X a letter/email/card/gift each three months and a birthday present and Christmas present to X care of the father’s address and email address and the father shall immediately hand to X such correspondence and gift. The father shall advise the mother by text message that he has handed such to X within 24 hours.

11. The father shall:

    (a)       In the event that X requests to speak to the mother by telephone shall ensure that X communicates with the mother;

    (b)       In the event that X requests to see the mother shall immediately send a text to the mother and arrange a meeting between the mother and X;

    (c)       Advise the mother of any medical emergency within 12 hours of such emergency relating to X and the mother may attend the hospital where X is admitted;

    (d)       Use his best endeavours to facilitate a relationship between X and his mother.

12. A copy of these Orders be provided to the principal of any school that X attends and any treating medical professional.

THE COURT NOTES THAT:

(a)       The mother has given an undertaking not to approach X at school and not make her presence known to X at any time while at the school.

(b)       X will be attending B School in Suburb C in 2020.

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  Tracy & Tracy 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 SYDNEY

FILE NUMBER: SYC 1151 of 2014

Mr Tracy

Applicant

And

Ms Tracy

Respondent

REASONS FOR JUDGMENT

1. It is to the parties’ credit that they have entered these consent orders, but this is an exceedingly sad matter. It is sad for X. It is particularly sad for his mother as well. The child’s position in relation to his relationship with and time with his mother has done a 360 since 2015/2016, when it is reported that he seemed to adore his mother and was living with her.

2. We now have the spectre of a situation in 2019 where skilled professionals working at a contact centre were unable to have this boy aged 11 even get out the car on some occasions or wait at a contact centre to spend time with his mother, the only mother he has, or will ever have.

3. I have read the report of the contact centre of their last attempts to have X spend time with his mother. The contact centre, as always, went above and beyond their obligation and duty to try and facilitate this time even going to the extent of buying him his favourite food and drink.

4. Despite the father telling me in his Affidavit at paragraph 54 that:

   I want the child to have a relationship with his mother. I encouraged him to spend time with his mother at the contact centre – that I wanted to do everything I could to attempt to facilitate contact.

5. The notes and report from the contact centre tell me an entirely different story.

6. The father’s comments to the contact centre on 5 July 2019 being a conversation with the coordinator are as follows:

   He (X) is pissed off at her, because his mother has not given him his toys and clothes.

7. That:

   He was abandoned by his mother in 2016 and she made no effort to see him or try and amend the relationship by giving him his belongings.

8. I pause. I do not accept that that is what the evidence supports at all.

   Abandoning the child and the abuse of the child – was finally removed by the department, and the case was reported to have a high classified – high risk of harm.

9. There is scant evidence of physical harm by the mother to the child. The mother was having a different time emotionally in 2016, the child was living with her, and that the father has to put it mildly, gilded the lily to persons in authority.

10. That:

    He has been diagnosed as being on the autism spectrum, but seeing his psychologist Ms D has helped the child, and she says he doesn’t have autism and has PTSD.

11. X may well have PTSD. This is a little boy caught between an ugly battle between his parents – a high conflict relationship, and he has done what all children ultimately do in such relationships, chosen, for his safety, one parent over the other, and that choice has been facilitated by his father allowing him to do this.

12. The father described X as battle-scarred. I can imagine the coordinator was somewhat alarmed at this and asked the father to further elaborate what he meant by that. He replied the child tried to, threatened to kill himself three and a half years ago, and he was very upset at his last meeting with his Independent Children's Lawyer when he was informed he was going to speak to his mother and then asked his father, “How do I hang myself with a belt buckle?”

13. The father said that the Independent Children's Lawyer is apparently reported to have said to X that he was going to start spending time with his mum, he would be safe, and his dad would support him in doing this.

14. I see no evidence of any support by the father for this child to spend time with his mother at the contact centre. None whatsoever. It is not words I am looking at, it is actions.

15. On one occasion, the father removed himself 800 metres down the road. Hardly an action supporting his son. Simple words such as, “This is good for you, son. I want you to see your mum. Nothing is going to happen to you. It’s really important you see your mum. She loves you, and sometimes, mate, you have to do things you don’t want to do” are the words that you use to encourage your children to do something they do not want to do, not walk 800 metres down the road.

16. The father said to the co-ordinator his “two main roles here” was “to comply with Court orders and get X through this safely”. Well, he has got X through this safely. He has not spent any time with his mother, and from the father’s point of view, that is getting X through safely. He has not complied with Court Orders though.

17. I formed the view that the father has done little to support X’s relationship with the mother and is possibly incapable of doing so. In those circumstances, I am tasked, as I was tasked to make a very difficult decision, being that a no time order is an order in this child’s best interests and is the focus on X’s needs.

18. It was apparent to me that he must remain living with his father, for apart from the clear deficit of being incapable of supporting the child’s relationship with his mother and inability to acknowledge and understand the importance to X’s psychological and emotional health of having a relationship with both his parents, his father is parenting him well in other areas of his life and that is clear. He is doing well at school. He father is focused on his son. He has a good group of friends. He is attending outside activities, and in those respects X’s life and his independent life is progressing well and he is being given a good opportunity to make the most of the capacities he has.

19. However, the sadness in not having a relationship with his mother and the consequences for X is something only time will tell, and thus there are no winners here, there are only losers, and perhaps X is the greatest loser.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 21 November 2019.

Associate:

Date: 21 November 2019