Van Veen and Bradley

[2009] FamCA 730

FAMILY COURT OF AUSTRALIA

VAN VEEN & BRADLEY [2009] FamCA 730

FAMILY LAW – CHILDREN – interim proceedings – application by the mother seeking to suspend the father’s time with the child – where the current orders provide for the father’s time to be supervised – where the mother relies on the report of a family consultant and a recommendation that the father’s time be suspended until the child recovers from behavioural difficulties – where the conclusion of the Less Adversarial Trial in this matter is to be held shortly – where it is currently not possible to identify the reasons for the child’s distress – not appropriate to suspend the father’s time – application adjourned for further consideration before the trial judge

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Van Veen

RESPONDENT: Mr Bradley

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 4961 of 2007

DATE DELIVERED: 7 JULY 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 7 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS DIXON
SOLICITOR FOR THE APPLICANT:	A K REEVES & ASSOCIATES

COUNSEL FOR THE RESPONDENT:	MS LEE
SOLICITOR FOR THE RESPONDENT:	JOHNSTON WITHERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	MRS R REED

Orders

1. That the mother’s Application in a Case filed on 22 June 2009 be adjourned for the further consideration of the Honourable Justice Strickland at 9.30 am on 21 July 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4961 of 2007

MS VAN VEEN

Applicant

And

MR BRADLEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me another episode in a long, protracted, difficult and complex matter.  There is one child who is the subject of these quite bitter and protracted proceedings between his parents and that is a son born in October 2004 (4 years old).   The Court has undertaken extensive management of the file over a number of years until finally getting to the point where the matter could be listed for trial.  The matter had a 1^st Day Less Adversarial trial hearing before Strickland J on 30 April 2009 and the conclusion of trial for a further 4 days is listed to commence on 27 July 2009, less than 3 weeks from today.  There is also a compliance hearing on 21 July 2009. 

2. The matter that I deal with today is the mother’s Application in a Case filed on 22 June 2009 seeking to suspend the father’s time with the child and she relies a good deal in her application on the report of Mr P, a family consultant with this Court and that report is dated 15 June 2009.  The particular order that was sought to be suspended is that made on 3 March 2009 and in particular paragraph 2 thereof.  That paragraph sets out the arrangements for the father to spend time with the child on a supervised basis.  Initially the periods were supervised by the Children’s Contact Service (“CCS”) for the first five of those visits and thereafter the periods were supervised by Ms H, a person approved by this Court as being suitable to undertake the role of supervisor.

3. Counsel for the mother has raised an extensive number of issues that need be of concern for the Court.  The Family Report of Mr P raises a significant number of concerns about the child’s presentation.  In his evaluation which is contained in paragraphs 34 to 47 inclusive, Mr P details not just the behaviours being exhibited by the child but the various possibilities that could be offered to explain those behavioural difficulties.  It is though true that he firmly comes down on the side of extreme caution in relation to the child to the point where he makes a recommendation that the child’s time with the father be suspended until he recovers from his current behavioural difficulties.  However, a point well made by the Independent Children’s Lawyer is that the reasons for the child’s behavioural difficulties have not yet been finally determined and could be explained by a vast range of causes.

4. It is of course for that reason that the matter is proceeding to trial.  Only on the testing of all of the evidence will the trial Judge have an opportunity to determine why it is that the child, in a number of instances, is a quite troubled young boy.

5. It is a matter of some regret that the child has exhibited these troubled behaviours now for a relatively lengthy period of time and it is, I think, particularly significant to note that those behavioural difficulties emerged prior to Ms H being the person who was to supervise the child’s time with his father.

6. The allegations and concerns of the mother have a familiar ring to them.  The mother has on many occasions over a lengthy period of time indicated that she is firmly of the view that the child ought not to be spending any time with the father and that a relationship between the child and the father would be unhealthy and not one which would promote the child’s best interests. 

7. The Court has had a lengthy history of endeavouring to gain a clearer picture of what is best for the child by making a number of orders over a lengthy period of time which will enable the Court to determine whether or not the relationship between the father and the child is one which ought to be promoted and one which is healthy for the child.

8. It will be a matter for the trial Judge to determine whether or not the mother has been obstructionist in those attempts or whether or not she was genuinely motivated.  The Court must, of course, under the Family Law Act 1975 (as amended) consider the child’s best interests to be the paramount consideration, a matter elicited by Section 60CA of the Act. In determining what represents the best interests of the child the Court is then guided to Section 60CC of the Act which is divided into “primary considerations” and “additional considerations”. There are two primary considerations, the first being “The benefit to the child of having a meaningful relationship with both of the child’s parents” and the second, “the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence”. 

9. Those primary considerations throw up starkly the dilemma which faces the Court.  The Court’s efforts in ordering that the child have supervised time with his father have been in order to determine not just whether or not a meaningful relationship between the father and the child is possible, but also to ensure that the child is safe in the circumstances of endeavouring to establish that very point.  Even on the mother’s case, there is no assertion that the child has suffered any physical harm as a consequence of the ordered periods of time but she is particularly concerned about what she perceives as very apparent psychological and emotional harm being suffered by the child and in that regard she again points to the report of Mr P.

10. Mr P is a long experienced and highly regarded family consultant in this Court and I would depart from his recommendations only in circumstances where I deemed that the child’s safety could still be ensured or where Mr P has not had the opportunity of being provided with a vast and lengthy history of relevant information.

11. Mr P himself acknowledges that his recommendations indeed may not be appropriate if the child is not experiencing serious behavioural and emotional difficulties or if those difficulties are not associated with his contact with his father.  I accept it is probable that the Court will determine that the child is experiencing some behavioural and emotional difficulties which may prove to be serious. However, the second element as a precursor to Mr P’s recommendations could well prove to be a matter not related to the child’s contact with his father, at least not directly.

12. This Court has had long experience with highly conflicted cases and of parents who have pursued protracted conflicted and highly antagonistic proceedings.  Social scientific research points readily to the emotional harm which is caused to children by such conflict.  Thus it is open to the trial Judge after hearing all of the evidence to determine that if there is any behavioural or emotional difficulty being encountered by the child, that it is entirely possible that it is related to the intense bitterness and conflict between the child’s parents, rather than associated with the child’s time with his father per se.

13. In considering the various provisions of the legislation noted above I do not dismiss lightly the matters contained in Mr P’s evaluation.  However, it is also relevant to note at paragraph 32 of his family report the following:-

    “An observed interaction was carried out with [the child] and [the father].  When [the father] entered the assessment room [the child] greeted him enthusiastically and approached him, then resisted the embrace initiated by [the father]. [The father] was passive and subdued during the interaction while [the child] was active and energetic, initiating and engaging [the father] in imaginative play.  [The father] responded in a supportive and appropriate manner to [the child’s] initiatives.  He asked [the child] questions about his life and interests at times, but these questions were ignored by [the child].  At the end of the observed interaction [the child] protested that he did not want [the father] to go, but [the father] separated from him competently and [the child] remained at ease.”

14. The various reports provided by the CCS do not provide particular assistance in being able to form a determined view as to where the child’s problems lie.  There are occasions reported by CCS where the child has clearly enjoyed his time with his father; there are occasions when the child has refused to see his father; there are occasions when the child’s time with his father has been less than ideal; there have been occasions when the father’s general management of the occasion has been less than ideal and of course there remain the concerns about the mother’s role in the child’s presentation at CCS at times and generally.

15. The father makes it part of his case and thus it remains an issue for determination by the Court that the child presents as he does because of the mother’s attempts to alienate the child from his father.

16. There are quite a number of additional considerations which are enumerated in Section 60CC of the Act which range through the views of the child, the nature of important relationships, the willingness of parents to facilitate relationships and other matters.  I have had regard to all of those matters in my determination today.  It is also important to note that my determination is for a very limited period of time in any event.  The matter returns before Strickland J on 21 July 2009 in order for his Honour to be able to check on compliance issues.  The matter then resumes in its trial proceedings before his Honour on 27 July 2009.

17. At that time all of the evidence and all of the conflicting issues will be tested.  Until that time it is my view that it is not appropriate to suspend the orders of this Court as it is simply not possible to identify the reasons for the child’s distress.  If the child’s time with his father is suspended at this time, then any progress that has been made over the more recent months and indeed more recent years will be prejudiced.  That will limit the Court’s opportunity to determine what the genuine issues in dispute are and the reasons for the child’s presentation. 

18. I am satisfied, particularly from the presentation of the child in the father’s presence before Mr P, that the child’s emotional health will remain sufficiently secure over the next 2 weeks or so pending the final trial of these proceedings.  It is also very important to note within the context of my determination that it is the position of the Independent Children’s Lawyer that the child should continue to see his father as ordered and supervised pending trial.  Further the Independent Children’s Lawyer indicated that in recent contact with the CCS she had received advice that recent handovers had proceeded well and the child happily went to and from his father.

19. I note at this point of my reasons and captured on the transcript was the outburst of the mother indicating to the Court that she was going to break the Orders and therefore would not be complying with the Orders.  That will be a matter for the Court to deal with on a subsequent occasion but it is important to note it in these reasons.  That outburst of itself gives some validity to the suggestion that one of the factors the Court will have to consider is the mother’s possible alienation of the child from his father.

20. I therefore refuse the mother’s Application in a Case filed on 22 June 2009.  I am though not going to dismiss the mother’s application but adjourn it for the further consideration of Strickland J at 9.30 am on 21 July 2009 in the event that his Honour has a different view given his Honour’s participation in this matter to the point of a 1^st Day Less Adversarial Trial and now to the continuation / conclusion trial stage. 

I certify that the preceding twenty (20) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  7 July 2009