VEITCH & DEMPSEY

[2018] FamCA 621

FAMILY COURT OF AUSTRALIA

VEITCH & DEMPSEY [2018] FamCA 621

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where there are three children of the relationship – Where two children live with the father and one child lives with the mother – Where the children have not been spending time with the non-residing parent – Where the relationship between the siblings is at risk – orders for time spending in the interim.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Veitch

RESPONDENT: Mr Dempsey

FILE NUMBER: ADC 508 of 2015

DATE DELIVERED: 17 August 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 10 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alevizos

SOLICITOR FOR THE APPLICANT: Harry Alevizos Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Jacqui Ion Lawyers Pty Ltd

Orders

1. That paragraphs 3 and 4 of the orders made 24 May 2017 be suspended.

2. That C born … 2002, B born … 2004 and H born … 2008 (“the children”) spend time with the mother between 10 am and 4 pm on each fourth Sunday commencing 19 August 2018 with handover to occur at the Suburb K McDonald’s Restaurant.

3. That the said children spend time with the father between 10 am and 4 pm on each fourth Sunday commencing 2 September 2018 with handover to occur at the Suburb L Shopping Centre.

4. That further consideration of the proceedings be adjourned to 26 October 2018 at 9 am.

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 Veitch & Dempsey 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 ADELAIDE

FILE NUMBER: ADC 508 of 2015

Ms Veitch

Applicant

And

Mr Dempsey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. C born in 2002, (“C”), B born in 2004 (“B”) and H born in 2008 (“H”) (collectively “the children”) are the subject of a parenting dispute between Mr Dempsey (“the father”) and Ms Veitch (“the mother”).

2. The parties are of European descent. They commenced their relationship in 1998, married in 2006 and separated in October 2014.

3. Following separation the children remained in the care of the mother. She decided to travel with the children to Europe. She asserts that the travel was with the knowledge and consent of the father. He considers that the mother was seeking to retain the children in Europe and deny him a relationship with them.

4. The mother concedes that at the instigation of the father an application was made pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and a return order was made. The children returned to Australia in April 2015.

5. The relationship between the parties was highly conflicted. There were allegations of family violence and coercive and controlling behaviour.

6. Proceedings were instituted by the father and were finalised on 24 May 2017. It was intended that the orders would support the relationship of the children with each of the parties.

7. The goodwill between the parties soon dissipated.

8. The parties disagree as to the cause of the breakdown of the children’s relationship with each of the parties, but the unsatisfactory outcome is that C and H live with the father and spend no time with the mother.

9. B lives with the mother and spends no time with the father.

10. The unfortunate consequence is that the relationship between the children is strained and at risk.

11. The mother contends that as at the date of the final orders, she had a good relationship with C and H as evidenced by their trip to Brisbane with the mother in September 2017.

12. Whilst the mother considers that B’s relationship with the father had always been strained, there was a marked deterioration that she considers has had its catalyst in an argument between B and the father in July 2017.

13. B is a child with adverse behavioural issues.

14. The parties resolved their differences by final orders made by consent on 24 May 2017. The orders provided for the parties to have equal shared parental responsibility for the children, that C live with either party but at the time of the orders the child live with the father and has remained with him, and that B and H live with the parties on a week about basis.

15. The parties consider that the other is at fault in not supporting H’s relationship with the mother and B’s relationship with the father.

16. The mother initially sought the delivery up of H and a suspension of the orders in so far as they relate to B such that B would live with her and spend time with the father subject to his wishes.

17. The father filed a Response on 19 December 2017. He seeks orders that C live with him and spend time with the mother subject to his wishes and that B live with the mother and spend time with the father each alternate weekend and similarly, that H live with the father and spend time with the mother on each alternate weekend.

18. The interim orders sought recognise that the parties’ relationship with B and H is troubled and the father proposes that on an interim basis B spend four hours each alternate Saturday or Sunday with the father and H for a similar period of time with the mother.

THE FAMILY REPORT

1. Given the ages of the children and the short period of time between the making of the orders and the breakdown of the subsequent parenting arrangements, the Court considered that the children would be assisted by the preparation of a family report.

2. Ms M (“family consultant”) was appointed to undertake the assessment and a report dated 2 July 2018 was released.

3. The family consultant noted that each of the parties considered that the children were at risk by “attempts to influence and manipulate them when in the care of the other party”.

4. The parties were not able to conceive of a way forward that would enable a restoration of each of them having a relationship with the children that apparently existed prior to separation. The family consultant recorded that “the conflict between the parties appeared entrenched and toxic”.

5. There was no doubt that each of the parties loved the children, but she opined that they had failed to protect the children from their mistrust, dislike and acrimony.

6. A possible explanation for the entrenched position adopted by the children is that it was indicative of their attempt to detach themselves from the conflict.

7. The children were observed to have aligned themselves with one party and “they do not appear motivated to change the current arrangement. Instead they appeared invested in reinforcing it”.

8. H was strongly bonded to C. She was not prepared to see the mother unless C accompanied her. He expressed a preparedness to see the mother once a month providing the three children were together. A similar position was adopted by B.

9. The relationship between the children and their parents has been informed by the current visit of the maternal grandmother. There appears to be a beneficial attachment between the children and their grandmother and since she has been here they have seen her on one occasion for five hours and propose to see her on two occasions prior to her departure in September 2018.

10. It suggests that the relationship between the children is intact and able to be fostered if they are removed from the parental conflict.

11. A possible way forward suggested by the family consultant at [153]:-

    The observations demonstrated that if the children and the party they are estranged from could spend time together there is a potential for some positive interaction but it will be difficult to achieve this given the resistant stance of the children. The parties could not identify any known adult who the children might accept as a support person to assist contact to take place with sibling/s or the other party. They both described previously taking a firm stance to ensure orders were followed and that the children had time with the other party despite resistance by the children. They both said they had then ceased to do so blaming allegedly poor behaviour by the other party. It is time that they recognised the long term negative consequences on the children if they prioritise their conflict with their ex-partner over the children’s needs for ongoing relationships with both their parents and their siblings. A firm and persistent stance with the children may be required.

12. As part of the recommendations the family consultant considered that a first step might be for all three children to spend each alternate Saturday with each of the parties.

13. For his part, the father was strongly supportive of the recommendation and was clear in his instructions to his counsel that the Court could be confident that C would accompany H to spend time with the mother if B was present.

14. For her part, the mother was equally confident that B would attend with his siblings and spend time with the father.

15. The proposed recommendation does not resolve the differences between the parties. The mother seeks that H spend every second weekend with her and the father seeks that B spend a similar period of time with him.

PARENTING CONSIDERATIONS

1. At present, there is almost a complete standoff between the parties on the time that they spend with the child or children not in their care. It is important that the children are able to continue and develop their relationship with each other. The parental conflict does not allow this to occur.

2. The views of the children, in particular B and H are important considerations, but ultimately the Court must determine what is in their best interests by reference to the primary and additional considerations as set out in s 60CC of the Family Law Act 1975 (Cth).

3. The parties appear ready to accept that an important first step would be for the children to spend time in each of their homes.

4. I propose to fall in with the tenor of the recommendations of the family consultant such that the children will spend each fourth Sunday with the mother for a period of six hours and for a similar period with the father in the intervening period.

5. Thereafter, the matter will return for a further consideration as to what other orders may need to be considered in circumstances where this matter is not in the trial list and there could be an 18 month period before a listing can be secured.

6. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 August 2018.

Associate: 

Date:  17 August 2018