UHLMAN & MORTON

[2018] FamCA 55

FAMILY COURT OF AUSTRALIA

UHLMAN & MORTON [2018] FamCA 55

FAMILY LAW – CHILDREN – Parenting Orders – Child very young and no relationship with father.  Parties consented to arrangement for supervised contact centre arrangement.  Court refused to endorse the order.  Parties changed direction and began a therapeutic approach with a psychologist.  Explanation for orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Uhlman

RESPONDENT: Ms Morton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2173 of 2017

DATE DELIVERED: 24 January 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paolini

SOLICITOR FOR THE APPLICANT: Aberdeen Lawyers

COUNSEL FOR THE RESPONDENT: Ms Wiener

SOLICITOR FOR THE RESPONDENT: AAB Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brand

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

Orders

1. That BY CONSENT the father’s application for contravention filed 15 December 2017 is struck out.

BY CONSENT IT IS FURTHER ORDERED:

2. That paragraphs 2 and 3 of the orders made on 3 August 2017 are suspended until further order.
3. Subject to the confirmation by Ms B that it is in the best interests of C born … 2015 to attend for contact with the father under supervision at a contact centre and on what basis, that time occur at the D Contact Centre in Suburb E commencing on a date to be arranged by Ms B (if practicable) after 4 February 2018 on such basis as the contact centre can arrange.
4. That upon a date fixed by Ms B, the mother attend upon Ms B with the child and follow all lawful directions of Ms B.
5. That the father attend upon Ms B at times to be arranged and follow all of her lawful directions.
6. That the costs of Ms B be paid by the father.
7. That the Children’s Contact Centre is requested to provide a report to the Independent Children’s Lawyer and the parties in due course.
8. That the reasons for these orders be transcribed and be placed on the court file.
9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Uhlman & Morton 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 MELBOURNE

FILE NUMBER: MLC 2173  of 2017

Mr Uhlman

Applicant

And

Ms Morton

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons explain the orders made on 24 January 2018 albeit they were made largely by consent of the parties.

2. C was born in 2015.  She is the child of Mr Uhlman (“the father”) and Ms Morton (“the mother”).  The mother and the father were in a relationship for a very limited period of time.  They commenced living together in November 2012, married in 2013 and separated in 2015.  It will be self-evident that the child was born four months after the parties’ relationship came to an end.  It is common ground that the child has not seen her father since she was three weeks old.

3. What happened in the parties’ relationship is controversial.  The mother asserts family violence, improper conduct in a workplace environment and that the father had a “psychotic” episode at some stage.  The father’s position is that these are disputed and he has explained them.  I am not in a position to make any findings of fact about any of these matters.  Needless to say, the relationship between the parents is non-existent.  Such is the situation that there is no communication about the child and each points the finger at the other for that problem.  For example, the father says that had there been a sensible discussion, his relationship with the child would now be well-established.  There is little the court can do about that problem and in reality, it does not matter who is at fault here, as the focus of the court’s inquiry is on the best interests of the child.  Thus, whatever the facts are, there is no relationship between the child and her father.

4. In March 2017, the father issued his own application seeking a variety of parenting orders.  Of a final nature, he sought the following order:

   Such orders in regards to parenting as the Court thinks proper in the circumstances.

5. As I understand the father’s position, that application was made because he wanted to develop a relationship with the child before any litigation.  The mother filed a response on 1 May 2015 in which she said:

   That the mother be excused from further particularising the final parenting orders she seeks pending the release of the family report.

6. It is trite to say that both parties were shadow boxing.

7. The father’s application sought interim orders that he have the child in his care for one hour on three occasions per week for the first three weeks followed by two hours for the following six weeks and then building up over a period of time.  He proposed that his time be at the home of his father.  When that application was filed, the child was 15 months old and would not have known him.  How he expected the child to have simply gone into his care for any of that period of time, is something of a mystery.

8. In her responding material, the mother sought an order that the parties attend the Suburb F Family Relationships Centre Contact Service and that the father spend supervised time there.  How that would be implemented also remained a mystery bearing in mind the child’s age and what facilities the contact centre could offer to assist in introducing her to her father. 

9. The one obvious thing that was missing, notwithstanding lawyers were involved, was a social scientist for the purposes of creating a relationship that was non-existent.  Whilst the court could make various orders, no-one seemed to address that issue but rather approached the matter in the litigious manner described.

10. The matter came before the Federal Circuit Court on 2 May 2017 where the proceedings were immediately transferred to this court and identified as a “Magellan” matter.  That court was told of an interim intervention order against the father in which the child was not named but another child of the mother was.

11. With the proceedings transferred to this court, they came before the Senior Registrar on 3 August 2017 at which stage and with all parties represented by lawyers, including an Independent Children’s Lawyer, orders were made by consent of the parties that they do all things required to apply to the Children’s Contact Service and that the child spend supervised time with her father once per week on days as nominated.  No-one was able to explain why that order was made bearing in mind that the child was then 20 months old and had still had no relationship with her father.  How that relationship would be developed was presumably left to the contact centre to work out.

12. The parties also agreed to an order that each of them undergo a psychiatric assessment but no-one was able to explain what manifested conduct gave rise to the necessity for a psychiatric examination and even if there was some such conduct, the supervised contact was still to proceed. 

13. As it transpired, the supervised contact arrangement was never implemented and in December 2017, the father brought a contravention application.  That was listed before the court on 24 January 2018 in the Judicial Duty List.  the child was now 25 months old and still had had no relationship with her father.  I repeat my earlier remark about the parties shadow boxing.

14. The matter was transferred to me from the Judicial Duty List on the basis that the contravention application was not to proceed and by consent, I struck it out.  That left no interim issue alive but the parties did indicate that they had a set of minutes some of which was agreed and other parts, apparently not.  It transpired that what the father was proposing, and supported by the Independent Children’s Lawyer, was that the foreshadowed supervised arrangements at the contact centre be implemented.  No-one was able to indicate to me how such a program would work until I made certain inquiries of the solicitor for the father who told me that the discussion that had been held with the contact centre was along the lines that if the child was distressed, the child would be returned to the mother.  Nothing was said about what would happen in the following week or the fortnights thereafter.  the child would therefore have never developed a relationship with her father unless something creative occurred.

15. Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) requires that a court is not obliged to contemplate the s 60CC factors if the parties present a consent order to be made by the court. Whilst clearly under no obligation to vet such orders, in circumstances where common sense dictates that the focus was unusual, if not wrong, I adopted the view that the court should intervene. I expressed concern about the consent orders that had been made in August. The Independent Children’s Lawyer who was not present at the August hearing but present before me indicated that she stepped away from the arrangements to which consent had been given by her predecessor in August. To compound the problems, counsel for the mother indicated that her client did consent to the orders at a time when she was represented but had only done so under “pressure”. The father’s position was that unless the orders were made, he would never develop a relationship with the child and that whilst he wanted such a relationship, he was clearly being thwarted by the mother. As I have already indicated, I am not in a position to make any findings of fact.

16. I indicated that I was not prepared to make the orders which seemed to me to be fundamentally flawed from a best interest principle particularly having no evidence as to what sort of program the child contact centre could provide. 

17. The parties then went outside and arranged for the involvement of a psychologist well known to the court but a debate then occurred as to whether or not the attendance of the parties on that psychologist was a precondition for the commencement of the supervised contact arrangement. In my view, neither of the parties has covered themselves in glory in relation to satisfying the court about best interest principles here. The court could not make findings under s 60CC for example in relation to responsibility as a parent, the nature of the relationship between the parent and the child or the capacity of the parent to fulfil the responsibilities of a parent. All of that evidence remained unsaid notwithstanding the parties were going to attempt to create a relationship between father and child through a perfect stranger (albeit possibly one trained for certain child-related protective issues).

18. Ultimately I indicated that the parties could make a proper application with material to satisfy me how a relationship could be developed and if necessary, the reticence of the mother about wanting to have nothing to do with the father could be tested as her allegations concern serious matters. 

19. The parties ultimately agreed that I should make the orders that have now been made and I have stressed with them that I was not prepared to make them unless they were consenting voluntarily.

20. The father’s position was that he wanted the contact to still occur after the proposed psychologist Ms B created some form of relationship between he and the child on a weekly basis.  I have stressed I am not going to order the contact centre to use its resources other than may be appropriate for reasons that ought already be apparent.

21. The mother’s position was that she did not want to attend upon Ms B more than once a week because of the geographical distance involved in getting the child there.  She would be expected to travel somewhere in the vicinity of two hours to get to Ms B with a child just over two years of age.  I stressed that I would leave that issue to Ms B knowing that the expert has sufficient experience to understand logistical problems of that nature.

22. Ultimately, the court is not abdicating its responsibility to Ms B. It is fulfilling its charter to focus on the matters set out in s 60B of the Act. It is worth noting those provisions. Section 60B provides:

    60B  Objects of Part and principles underlying it

    (1)The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

23. In my view, there is no basis upon which I could find that the orders for the nature of the relationship anticipated in August 2017 were ever in the best interests of the child.  Accordingly I have suspended those orders and the parents have agreed to that suspension.  I propose that these reasons be contemplated by Ms B as soon as practicable so that she can understand my concern about how the parties are approaching the issue.  I make clear that I directed the mother and the father to follow all lawful directions of Ms B who is not under any judicial restraint to decide when she considers the child will be ready for some other arrangement than attending upon her including if necessary, the supervised contact centre arrangement.  To the extent that the parties or either of them do not like such a decision by Ms B, they can make the appropriate application and whoever hears that application can consider these reasons as well.

24. In my view, the orders I have made are in the best interests of the child.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2018.

Associate:

Date:  6 February 2018