VERIZE & HUME

[2020] FamCA 687

FAMILY COURT OF AUSTRALIA

VERIZE & HUME [2020] FamCA 687

FAMILY LAW – CHILDREN – INTERIM – orders made for increase of time during school holidays

Family Law Act 1975 (Cth) ss 60CC

APPLICANT: Ms Verize

RESPONDENT: Mr Hume

FILE NUMBER: BRC 11197 of 2010

DATE DELIVERED: 30 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 30 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr S Mill
Hooper Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr R Cameron

SOLICITOR FOR THE RESPONDENT: Munro Legal Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D Carlton

INDEPENDENT CHILDREN’S LAWYER:

Ms Sarah Cleeland

Sarah Cleeland Family Lawyers

Orders by consent until further order:

Religious Sacraments

1. That the father shall forthwith make application, prepare for and facilitate the child’s Religious Sacraments as and when this can be facilitated by the Church.

2. That the father shall keep the mother informed in writing of the progress as regards the child’s Religious Sacraments and provide at least fourteen (14) days written notice of the date and location at which the child’s Religious Sacraments will be celebrated in order for the Mother to attend if she so wishes.

3. The Father is permitted to provide a copy of this Order to the person, entity or office within the Church responsible for the application for the child to undertake the Religious Sacraments and production of this Order shall be deemed to constitute sufficient evidence of the Mother’s authority and consent for the child to take the Religious Sacraments.

Special Days

1. The child, Y born … 2010 (“the child”), shall spend time with the Father on the Father’s birthday from 3:00pm to 6:30pm.

2. The child shall spend time with the Father on Father’s Day from 9:00am on Father’s Day until before school Monday.

Communication

1. The child shall communicate with the Father by telephone on Sundays at 4:00pm when the child is not in his care.

2. When the child communicates with the Father for the purposes of Order 6, the child will be afforded privacy.

THE COURT FURTHER ORDERS UNTIL FURTHER ORDER:

1. That child shall spend time with the father from 9.00am 8 July 2020 until 9.00am 12 July 2020 in lieu of the scheduled time the child would spend with the father commencing 10 July 2020 under the current orders.

2. That the child shall communicate with the mother by telephone on 10 July 2020 at 4.00pm, with the call to be initiated by father to the mobile phone number of the mother with the call to take place in private, unrecorded and uninterrupted.

3. That a copy of the objection raised by Dr C to the subpoena filed in the Federal Circuit Court on 31 May 2018, dated 18 June 2018, be provided to the solicitors on the record.

4. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 23 September 2020 in the Family Court of Australia at Brisbane.

5. That each party file and serve on each other no later than 4.00pm on 2 September 2020:

   (a)       one (1) consolidated Affidavit of evidence in chief; and

   (b)       one (1) Affidavit of each witness intended to be relied upon at trial.

6. That each party file and serve on each other no later than 4.00pm on 16 September 2020, a case outline setting out:

   (a)       a precise minute of the final orders sought;

   (b)       a relevant chronology; and

   (c)       a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

7. That the Independent Children’s Lawyer have liberty to apply.

IT IS NOTED:

A.That the production of documents under subpoena of records of Dr C issued 31 May 2018 is not pressed, however a new subpoena may issue in respect of the records of Dr C.

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 Verize & Hume 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 BRISBANE

FILE NUMBER: BRC 11197 of 2010

Ms Verize

Applicant

And

Mr Hume

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. I propose to give these reasons now.  I do not propose to re-state what I have already stated about the principles that apply to an interim determination.  In fact, the matter which is now still controversial before the trial, which is scheduled to commence, having been expedited by me, on 23 September 2020, is narrow but important.

2. Clearly, I am required to take into consideration the best interests of the child but so much of this case makes it difficult, even if I felt the evidence was uncontroversial, and very little of it is uncontroversial, to make findings about issues including what weight I should give to wishes or views expressed by the child, both to the father, the mother, to his counsellor, Dr C, and perhaps, in a sense, to Ms L although a more recent summary of those views is not available yet.

3. How the relationship between the father and the child has been assessed by Ms L, who is the only family report writer who will have seen the parents and other people significant to Y’s life and the child, progressed since the very significant changes in the care arrangements that Y has had to experience since the orders made by a Federal Circuit Court of Australia Judge in April 2017; over three years ago, when substantial period time orders for the child with both parents was changed to a moratorium that ended up resulting in no time for some six months, then supervised time for a significant period of well over 12 months and then unsupervised day time progressing, as Mr Mill has reminded me, to the current order of every alternate weekend from after school Friday to before school Monday which was made in December.

4. The easy approach in a case like this is to merely say the trial is so close that why would the Court make any decision to vary orders which have been in place now for six months when a trial is but eight weeks away.  However I am concerned that, in particular, Y, who Mr Mill says has a meaningful relationship with the father, although I am not prepared to accept necessarily that is the case without further evidence and it being tested, but if I accept what Mr Mill says on behalf of the mother as a proper and reasonable concession, then the absence of any opportunity to enjoy time with the father at a period when he is not navigating changeovers between the parents, the weekend difficulties, which COVID-19 has encouraged in our community, and the interaction with the stress of school, which is clearly a stress as identified by Y to some degree, means that he could well be missing out on further opportunities to expand and enjoy his relationship with his father which would be in his best interests.

5. Of course, in making that observation, I am turning my mind to section 60CC(2)(a) of the Family Law Act 1975 (“the Act”) and the benefit to the child of having a meaningful relationship. The authorities of course have made clear that meaningful does not necessarily mean optimal. No one will ever suggest to me, nor would the parties I think accept that what has occurred over the last three years for this little boy is anything like optimal. Nonetheless, it is apparent that this child has re-engaged with the father after a period of both no time and then extended to supervised time. At least the evidence of Dr C reflects that he loves his father. That may allow the Court ultimately to find that that statement of love is a reflection of his perceived relationship with his father, of being meaningful to him. He however also enjoys and loves the household in which he primarily lives, that being of his mother which now includes the mother’s new partner. Now, this child has had a lot to deal with in the last three years. However, as the Act identifies, section 60CC(2)(a) must yield to the greater weight to be applied to section 60CC(2)(b), namely to protect the child from the risk of harm, both emotional, physical, sexual. In this case, the history of the matter suggests that at least:

   a)the Federal Circuit Court of Australia Judge was concerned about the emotional harm that the father was, in his view, exposing the child to and that was the foundation for the Orders made by the Federal Circuit Court of Australia Judge in April 2017 to so significantly change the parenting arrangements;

   b)further concerns are expressed about the father’s (I might put as neutrally as possible) difficulty in separating his own hopes, wishes and views about the child and his needs for the relationship with the child, from the best interests of the child.  This is often called a lack of insight as an insightful parent is able to distinguish, both emotionally and in behaviour, between conduct which is in the best interests of the child and conduct which is shown to be reflective of a particular desire for the parent, irrespective of the child’s best interests, to engage in things which a good parent would suggest they should not engage in.  The father has been criticised by the Psychiatrist engaged by the Independent Children’s Lawyer, Dr G, in respect of some of his behaviour, insight and comments; and

   c)at least when the matter first came before me the father demonstrated an inability to separate some of the past events which were no doubt very hurtful to him and caused, in the judgment of a Federal Circuit Court of Australia Judge, the very significant change in parenting arrangements.  During that time that I have been seeking to manage this matter, I have made it clear that the Court, whilst not ignoring some of the historical issues, must look at the position now in view of a child who is now 10 who has had, at least by the time of trial, nine months of substantial unsupervised time with the father whilst living in the home of the mother.  It is to be hoped that the concerns that have been expressed previously by me about moving on are reflected in the trial material of the father, but that is yet to be seen.  I acknowledge that he has had the benefit of solicitors retained by him and experienced Counsel Mr Cameron.

6. Further concerns about the father’s current behaviour are referred to in the brief memorandum of Ms L, the retained family report writer.  For the reasons given by Ms L, it has not been possible to complete the family report despite final interviews having taken place last week with Y and, prior to that, on 3 June 2020.  No criticism of either the report writer or the Independent Children’s Lawyer Ms Cleeland is intended by those comments.  It had all been hoped, I think by everybody, that a fulsome family report in which recommendations or opinions were expressed, and a foundation of those opinions given, would be available today.  It is not.

7. I have heard the thoughtful submissions of Mr Mill for the mother, and Mr Carlton for the Independent Children’s Lawyer, and by Mr Cameron for the father.

8. Ms L, in the final paragraph of her brief memorandum, opines that “Y’s time with his father should remain the same” as a considered expression not only of one of the issues, that is extending the time from a Friday to a Tuesday, as the father seeks, but also to not return to the father – and Y spending any holiday time with the father.  Mr Carlton referred me to a number of the parts of Ms L’s brief memorandum which he says would allow me to infer that when Ms L made the comments she did and the recommendations she did, that she was speaking about holidays as well as the fortnightly time.  That could be the case.  I am not so satisfied however that it is.

9. Nonetheless, as has been the position in Family Law jurisprudence for many years, the Court is not bound to follow any recommendation merely because it is from a highly qualified, as Ms L is, family report writer.  I find it hard to see the final paragraph of Ms L’s brief report as a recommendation that time should not include, which is really the issue, any holiday time.

10. I do not ignore the views expressed by Y’s counsellor, of course, notwithstanding the apparent criticisms which are directed to Dr C from the father, through his Counsel, of her therapeutic support for Y and the extent to which she may have become an advocate for the mother and/or the child.  I do not ignore however her assessment that Y is, as apparent on all the evidence, an anxious child who has become anxious by the ongoing conflict between his parents and what has been talked about in different ways; the clash of loyalties that he must feel when he loves both his parents and yet he has a perception, rightly or wrongly, that his parents require different things and that, to some degree, they are in conflict with each other about those arrangements.  This is a lot for a little boy to cope with day in, day out.  And Mr Carlton and Mr Mill say a combination of all this evidence means that the Court should treat the matter cautiously and not increase time at all either for holidays or for the period of weekends that occur in both school time and holidays until the matter is heard at trial and dealt with at trial.

11. In my view, the evidence does suggest that Y’s opportunity to engage with his father in a more meaningful way since the orders moved from supervised time to unsupervised time, and including overnight  time, has been of benefit to him.  It will no doubt be a significant triable issue whether the father’s conduct, that was the subject of criticism by the Federal Circuit Court of Australia Judge, and notwithstanding a significant period of no time and then supervised time, has changed in a way that he no longer, as the mother, and I sense the Independent Children’s Lawyer, fear is still occurring present as emotional risk to the child.  That is very much a triable issue.

12. However, for school aged children, holidays, in my view, present as an opportunity for interaction that is not so readily able to be enjoyed when the humdrum of normal school life and weekends involves many other factors.  For children in Queensland – in fact most of Australia – the COVID-19 issues have meant that the children have spent usually, and in Y’s case it seems obviously, much more time at home than they have at school.  The father’s time, being as it has centred around weekends, has not, to the same degree, been impacted by the COVID-19 restrictions on school aged children not attending school.

13. That is a factor which may, as we are seeing played out in these cases around Australia, be one of the environmental factors which has affected and/or created further anxiety on children, even those who are maybe not as anxious as this little boy appears to be.

14. However, I have considered all the submissions and in my view Y, at his age, ought to have an opportunity to spend some recreational time with his father in school holidays.  Accordingly, I propose to order that the weekend that the child would normally spend with the father, which I am told by Counsel was to commence on Friday, 10 July 2020 will now commence at 9.00am, Wednesday, 8 July 2020 and continue until 9.00am, Sunday 12 July 2020.  This is, in effect, one extra night.  I do not regard that as significant in the scheme of things, however it is significant because the Wednesday, Thursday and Friday of this block is recreational time where the child and his father are able to enjoy activities they could not necessarily do, or have not been able to do, over the last few months.

15. My view is however that it would be better for the child to return to the mother on Sunday, 12 July 2020 so that she may prepare him for the beginning of the next school term and that it would be in the child’s better interests, in my view, rather than require him to take with him, for it would be the standard weekend on Friday the 10^th, the activities, uniform and the like which he would require on the first day of the new school term, to his father’s.  In my view, he should be prepared for the new school term in the home of his mother where he primarily lives.

16. I do not propose, in view of the caution raised, for the ongoing increase of weekend time, to increase weekend time before hearing all the evidence.  To the extent it might be said there is an inconsistency between not extending time by one extra night from a Friday to a Tuesday, and providing a block period of time of four nights during school holidays, in my view it is not an inconsistency but a reflection of the different type of opportunities this child has to spend time with the father in a holiday environment as opposed to that shaped by school and weekend activities.

17. For those reasons, I do not intend to increase the time on alternate weekends as sought by the father, on an interim basis.  The order will be that the child spend time with the father from 9.00am Wednesday, 8 July 2020 until 9.00am Sunday, 12 July 2020 in lieu of the scheduled time the child would spend with the father commencing Friday, 10 July 2020 under current Orders.

18. I will order that there be a telephone conversation at 4.00pm on Friday, 10 July 2020, with the father to initiate the call to the mobile phone number of the mother and the call to take place in private, unrecorded and uninterrupted.

19. I am prepared to order that a copy of the objection raised by Dr C to the subpoena filed in the Federal Circuit Court of Australia on 31 May 2018, dated 18 June 2018, be provided to the solicitors on the record.

20. I will make these trial directions.  I will make the order by consent 1 to 7 today, according to the draft signed by the parties and initialled by me and placed with the papers.

21. I will make the further interim order, not by consent, that I pronounced earlier and trial directions which now appear at the commencement of these Reasons.

22. The matter be listed for face-to-face hearing before me for no longer than three days commencing at 10.00am on 23 September.

23. In my view, there is no need for there to be any further hearing fee paid because, in many ways, that has already been paid three years ago before the Federal Circuit Court of Australia.  So I do not propose to make any order in respect of hearing fees.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 30 June 2020.

Associate: 

Date:  20 August 2020