Upton & Everett

[2021] FamCA 241

FAMILY COURT OF AUSTRALIA

Upton & Everett [2021] FamCA 241

File number(s):	PAC 2364 of 2011
Judgment of:	REES J
Date of judgment:	29 April 2021
Catchwords:	FAMILY LAW – PARENTING – Application by the mother to discharge orders providing for contact between the father and children – Where the children haven’t spent time with their father in over six years – Where the matter proceeded undefended – Where the Court gave considerable weight to the child’s views – Orders providing for contact between the children and their father are discharged.
Number of paragraphs:	35
Date of undefended hearing:	29 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr Longworth
Solicitor for the Applicant:	Hogg & Associates Lawyers
Counsel for the Independent Children's Lawyer:	Ms Messner
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

PAC 2364 of 2011

BETWEEN:

MS UPTON

Applicant

AND:

LEGAL AID NSW

Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	29 APRIL 2021

THE COURT ORDERS:

1.That Orders 4, 5, 6, 7, and 8 made on 26 August 2015 in relation to E born … 2003 and F born … 2006 are discharged.

2.That the mother have liberty to provide a copy of these orders to the school that F attends.

3.That a copy of these reasons for judgment be provided to the father and paternal grandparents.

4.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Upton & Everett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. These proceedings concern parenting orders in relation to two children, E who was born in 2003 and is almost 18 years old; and F who was born in 2006 and is almost 15 years old (“the children”). They have an older sibling who is 20 years old.

2. The children’s parents are Ms Upton (“the mother”) and Mr Everett (“the father”).

3. On 26 August 2015, orders were made after a defended hearing lasting 11 days in which the paternal grandparents were the second applicants.

4. When the substantive hearing commenced, the children had not spent time with the father for some considerable time.

5. The orders provided for the children to live with the mother and for E and F to spend time with the father under professional supervision. The paternal grandparents were permitted to participate in the contact with the children.

6. The mother was given sole parental responsibility for the children.

7. The children were to attend a protective counsellor.

8. When the orders were made, F was nine years old.

9. The orders provided for the supervision to be changed when F started secondary schooling at which time the paternal grandfather would be the supervisor.

10. Supervision was imposed in circumstances which are canvassed in detail in the reasons for judgment of the trial judge and there was no appeal against those orders. The trial judge stated:

    161.The children have now not seen or communicated with the father for almost five years.  Any relationship with him which now exists is almost certainly residual but, on the other hand, I have no reason to doubt that they could regain their previous closeness with him.  There can be no guarantee that all, or any, of the children will re-establish a positive relationship with the father but, in my view, it is appropriate that they be afforded an opportunity to do so.  I consider it necessary, however, that this opportunity must be created in circumstances which safeguard the psychological well-being of the children.

11. After the final orders were made, F spent time with the father on one occasion in about October 2015 and E spent no time with him.

12. On 1 April 2016 the father filed an application alleging that the mother had contravened the orders made in 2015 and in July 2016, in the contravention proceedings, orders were made that the parties and the children engage in therapy.

13. The family therapy was concluded in September 2017 after 12 sessions involving family members in various combinations. It is not clear that the therapist ever saw the children together with the father.

14. The mother filed an Initiating Application on 19 October 2017 seeking to discharge the orders providing for the children to spend time with the father.

15. That application was opposed by the father and by the paternal grandparents.

16. On 4 December 2020, orders were made listing the contested applications for hearing for two days commencing 29 April 2021.

17. The father and the paternal grandparents have now withdrawn all applications or responses filed in the proceedings and do not wish to participate further. Accordingly the matter proceeds before me as an undefended application.

18. The mother relies on an affidavit sworn by her on 12 October 2020 and an affidavit sworn by her partner, Mr HH, on 12 October 2020.

19. The matter is to be determined in circumstances where F has not had contact with her father since October 2015 and E has not had contact with him since February 2011.

20. It is the mother’s evidence that both F and E were strongly resistant to spending time with their father and that she has been unable, despite the intervention of the family therapist, to persuade them.

21. In determining what orders are in the best interests of children, the Court is required to consider, as a primary consideration, the benefit of a child having a meaningful relationship with each of his or her parents. However, that consideration is over-ridden by the need to protect the child from physical or psychological harm.

22. These reasons will set out my determination as to the best interests of F. E will be 18 years old and an adult in 2021 and I consider that E’s strongly expressed view that he wants no contact with his father over rides all other considerations.

23. F will be 15 in 2021. She has refused to have contact with her father since October 2015 when she saw him on one occasion only after the orders were made on 26 August 2015.

24. The mother deposed that, in August 2020, when arrangements were made for F to see Dr XX, a child and family psychiatrist, for the preparation of a report in these proceedings, F was angry and said, “How many people do I have to tell that I don’t want to see him”.

25. F’s relationship with her father was described as “residual” in 2015. It is unlikely that the situation has changed.

26. The evidence does not suggest that she has other than a residual relationship with her paternal grandparents.

27. The mother has had sole parental responsibility for the children since the 2015 orders.

28. I accept that the father has made efforts to spend time with and communicate with F including with the assistance of professional supervisors and by attending and participating in family therapy.

29. The mother deposed to F’s frequent absences from school during the period she was attending the family therapist. In the second half of 2016, after the commencement of the family therapy, F had 15 full days off school. In 2017, she had 11 full days away from school.

30. F’s school attendance is now improved and the mother deposed that she is happy to go to school “most days”.

31. F has a therapist whom she attends weekly.

32. As was made clear in the reasons for judgment delivered in 2015, the re-establishment of F’s relationship with her father was fraught with uncertainty.

33. Family therapy has not succeeded and, by withdrawing from these proceedings, the father, I infer, concedes that all that could have been done has been done, sadly without success.

34. I give greatest weight to the views which have been clearly expressed by F over a long period of time. She is almost 15 years old and those views must be given great weight.

35. The orders which provide for the children to have contact with their father will be discharged.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       29 April 2021