Vine and Vine

[2016] FamCA 621

FAMILY COURT OF AUSTRALIA

VINE & VINE [2016] FamCA 621

FAMILY LAW – CHILDREN – interim orders – where the father seeks discharge of the orders that provide for the child to spend time with the mother – where the mother opposes the application – where the primary and additional considerations are taken into account – where it is ordered that the child spend an uninterrupted period of time with the mother and thereafter alternate weekends with the father.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Vine

RESPONDENT: Mr Vine

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 638 of 2013

DATE DELIVERED: 9 June 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Litigant in Person

Mrs Tinning

Legal Services Commission of SA

Orders

1. That order 6 of the orders made 10 March 2015 is suspended.

2. That the child X born … 2006 shall live with the mother from the conclusion of school on 14 June 2016 to the commencement of school on 4 July 2016.

3. That until further order X shall live with the mother.

4. That X shall spend time with the father each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday commencing 7 July 2016.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 638 of 2013

Mr Vine

Applicant

And

Ms Vine

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceeding before me today involve a highly complex parenting dispute between the parties in respect of their children, X, born in 2006 and Y born in 2008 and Z born in 2009.  Whilst there has not been any final resolution in respect of the arrangements relating to Y and Z, submissions have been made today which suggest that there is at least a reasonable likelihood that the substantive issues in respect of the ongoing parenting arrangements for Y and Z will be the subject of full agreement, then there will be substantial agreement with perhaps the necessity to hear some evidence and make some determinations in respect of more minor issues surrounding the arrangements.  The focus today and I think the principal focus in respect of the proceedings which are currently listed for trial on 15 August 2016 relate to the interim arrangements in respect of X. 

2. There is a long and complex history to this matter, but I think it is fair to say that a convenient starting point would be the orders of his Honour Judge Brown made on 10 March 2015.  His Honour on that occasion had the advantage of submissions made by counsel on behalf of each of the parties.  There were orders made in respect of the preparation of an update report by Ms R, an earlier report having been provided to the Court and of assistance.  Importantly, an order was made for the appointment of an Independent Children’s Lawyer.  In terms of the proceedings today, Mrs Tinning of counsel appears for the Independent Children’s Lawyer, Ms Lewis has been consistent counsel for the mother and the father, at least of more recent time, has appeared as a self-represented party.

3. His Honour’s order provided in two separate orders the arrangements in respect of Y and Z.  Those arrangements appear to be largely without contest, conflict or dispute.  Order (6) of his Honour’s orders provided for a variation of an earlier order made on 13 May 2013 whereby all of the children were dealt with by way of a shared care arrangement with the variation that X lives with his mother in the week that the children Y and Z are in the father’s care, from after school on Thursday until the commencement of school on the following Friday, and in the week when the children Y and Z are scheduled to be in her care, from after school on Friday until the commencement of school the following Monday.

4. It was the position of each of the parties that that order would regulate the arrangements between them until the proceedings could be dealt with to finality on 15 August 2016.  Unfortunately, that has not occurred.  There have been a number of issues that have come back before me since the filing of the interim proceedings, in particular, I should focus on the order that I made on 20 May 2016.  That order provided for the further consideration of the parenting arrangements for X to be adjourned to 30 May 2016 with such date to be vacated upon the advice to my chambers that X was spending time with the mother in compliance with the orders, namely that he would come into her care on 26 May 2016.  It was not therefore a matter of great complexity.  The manner in which the order was drafted was in the anticipated outcome that X would go to his mother in compliance with the orders and therefore there was no need for further hearing.  That was the reasonable expectation.  It clearly was an expectation that was beyond the capacity of the parties to satisfy.

5. There is significant dispute as to what has happened since the order of 20 May 2016.  For her part, the mother alleges that the father has acted in a way that is inconsistent with X’s capacity to understand his personal circumstances, that at one point the father’s position was to relinquish the care of X to the mother, that on another point the father’s position was that would not be in X’s best interests but rather what should happen is X should remain in his primary care and spend time with his mother only when X wished it to occur.  The mother’s argument against that proposition is that it was not a matter where X was capable of making such a decision, taking into account his developmental issues, his presentation and perhaps more importantly what the mother says is the overt involvement of X in the dispute between the mother and the father, that is, why would X want to spend time with the mother in circumstances where it, frankly, is all too hard for X understanding, as he would, his father’s adverse presentation in respect of the mother.

6. The mother says that when X came into her care, of a relatively recent date, whilst initially it was difficult, X did settle down, X did comply with reasonable directions within the household, X did go to school.  The difficulty arose when, according to the mother, she acceded to a reasonable request by the father that X spend time with the father for a day on 29 May 2016.  What she says, and what is not the subject of controversy, is that X did not then return to her care, pursuant to the order of 10 March 2015, other than what the father says is a sign of his good faith, namely, that when X was recently in hospital, he did not stop the mother from spending time with X.  In respect of what happened whilst X was in hospital and what was the nature and assistance of the interaction between the mother and the father and the father’s partner in relation to X’s care is a matter that, whilst perhaps of some future interest, is of little moment in terms of the determination as to whether or not I can place weight on the fact that the father did not interfere with the mother going and seeing X in hospital.  Indeed, the father says that it was her weekend and she could see X in the hospital.

7. It may be that the pressure of these proceedings is such that the father at times doesn’t give the matter proper and mature reflection.  The issue is not whether the mother was able to see X whilst he was in hospital. The issue is whether the father is able to understand the significant responsibility that he has, as does the mother, to promote the relationship that X has with the other parent.  That is what is at the heart of this matter.  That is what the Family Law Act 1975 (Cth) (“the Act”) requires me to bring to account because in the absence of there being violence, in the absence of there being a psychological or emotional risk of harm to this child – and they are matters that need to be brought to account and weighed up – what is at the heart of this matter is that the Family Law Act obliges me to place significant weight on the advantage to a child in having a meaningful relationship with each of his parents.

8. Is it regrettable, as I have said, that this matter comes before me on an interim basis, and in such close proximity to the trial, but nonetheless it has and what I am being led to understand from the manner in which the father presents the case is that he does not consider by whatever reasonable means he could resort to, that there can be compliance with the order of 10 March 2015.  Therefore, I have a limited number of choices available.  If I accept what the father says, then either I suspend the order because to do otherwise would simply place X in the midst of further conflict or I accede to the mother’s position which is that of the two parties, I can have more confidence that the mother will promote the relationship that X has with his father as opposed to the relationship that X has with his mother. The difficulty about that is that the father indicates that even within the parameters of the order that the mother wants me to make, what will inevitably happen, according to the father, is that X will simply either not go to school or not want to go with his mother and we will simply be back here again in very short time.

9. The father says that he has insight in respect of matters relating to X.  In his affidavit most recently filed, he refers to X as an intelligent, curious, cheeky boy with excellent problem-solving skills, loves to be helpful, asks endless questions, a good reader, struggles with maths and writing.  He says, however, that the handovers are stressful for all the parties and at paragraph 25, he says he believes that X has a panic attack on each occasion.  It takes him several hours to recover.  His anxiety levels are also raised for several days prior to a scheduled visit.  He emphasises in paragraph 26 the following:

   I am not willing to continue to place [X] and myself under this much stress by forcing [X] into the mother’s care.

10. And at paragraph 27, he says:

    I know [X] lacks the wisdom and perspective that comes with age, lacks empathy and understanding for his mother due to autism and should learn to do what he is told, but I do not think this growth development can occur when he is being exposed to so much conflict and he is under so much stress.

11. He provides then his reasons why he thinks X over time would be able to reflect upon his position and that an order that would make X see his mother subject to his wishes would work.  The difficulty I have is that there is not enough information before me to allow me to understand whether indeed that is a reasonable or forlorn hope.  On an interim basis, I consider it is important that I put in place an order that enables X to spend time with his mother. There is no good reason why that should not occur and there is good reason why X would gain advantage from spending time with his mother.  Indeed, there is every suggestion that when the father initially relinquished his care of X in favour of the mother, that the mother did step up to look after X.  Whilst he expressed a view that he would want to see his father and, indeed, return to live with his father, it appears that X was prepared to go along with the proper direction of his mother.

12. Again, it is difficult to understand why the concept of the advantage to X of spending time with his mother is difficult for the father to bring to account, but I accept what the father says.  He is not able to adequately or properly ensure that X will spend time with his mother and he does not want any longer to be placed under the stress of what he says is the need to force X to spend time with his mother.  It may be a matter for trial, that the manner in which the father goes about these things could be the subject of amendment, correction and assistance, but that is a matter for determination.

13. Whilst it may be trite to say that there is only a limited period of time, namely, about two months, between now and 15 August, that does not mean that that is the beginning and the end of the matter.  The period of time that we are talking about is not just limited to 15 August, but it may extend for some months beyond 15 August until the parties receive a judgment.

14. A child of X’s disposition, taking into account the issues raised by the family consultant in both of her two earlier reports, suggests that he needs regularity, routine and arrangement.  This is not a child, as the father properly concedes, who at this stage is able to make an informed view as to when he would wish to spend time with his mother or his father.  It would be doubtful even if X did not present with autism that I would be much interested in an order that placed in a 10 year old’s hands the ability to determine his fate.  I reject absolutely that a child of 10 is able to understand a very important issue of the relationship and the benefit that that relationship ensures to the child of having a relationship with each of his or her parents.  That position is made, I think, more acute when taking into account issues in respect of X. 

15. It is unfortunate that the Court is left with few options, but it seems to me that what needs to occur in this case inevitably is that the order at order 6 of the orders of 10 March 2015 should be suspended. The question, therefore, is what should go in its place. The parties would understand that I do not make decisions simply because they appeal to me. I make a decision which has at every stage of consideration the application of the tests awarded in X’s best interests. I do so because the Act requires me to. I do so because s 60CC tells me of the issues that I need to bring to account the primary and the additional considerations that are applicable and important.

16. The primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.  If I accede to the father’s application, I am entitled, on the evidence that has been presented to me to find, and, indeed, with respect, I find easily, that X will spend no time with his mother.  That, of course, can be tempered by the need to protect the child from physical or psychological harm, abuse, neglect or family violence.  This is not a case where the mother or, indeed, the father could be said to abuse the child, to neglect the child or to expose the child to family violence. 

17. Whilst I do not think the current circumstances necessarily fits easily in respect to the provisions of s 60CC(2)(b) of the Act, giving, I suppose, the broadest expression to the Act, what the father would want me to understand is that any order I make must be tempered by the need to protect the child from psychological harm. What that means is X’s distress and anxiety, as the father clearly sets out in his affidavit material, at the handovers between the parties.

18. Even on the mother’s case, she would accept that the handovers have not been easy, that they have been problematic, although she would say the problem arises with the presentation of the father, his partner and maybe even to some extent herself in terms of the hostility that then impacts upon X.  She may be right.  I do not know.  But even were I to accept that the handovers between the parties are occasioned by stress and anxiety and distress to X, I do not think that that outweighs the benefit to X of a meaningful relationship with his mother. 

19. It is difficult for me to opine as to what would be the long-term effect on X of a substantial and significant disruption to a relationship with each of these parties.  At least the mother’s proposal has about it a recognition that it is important for X to have a relationship with his father.  The father’s application does not bring that concession with it.  It is a telling concession and it is one that the father, I think, needs to reflect upon in terms of looking for a way forward where all parties’ interests can be served.  Each of the parties, because they love X want to spend time with him.  There would be a significant benefit of X seeing and having a relationship with his parents. 

20. I bring into account the additional considerations.  I bring into account X’s views, but in this case, I give those views at this stage little weight.  Until I hear expert evidence that suggests to me the weight that I am entitled to give to X’s views, I take onboard the concerns and considerations of Ms R in her two earlier reports and, indeed, even the father’s own words in paragraph 25, 26 and 27 of his more recent affidavit.  Accordingly, the decision that I make today is not significantly influenced by X’s wishes.

21. I have already indicated that there is a good and proper relationship between X and his parents and that that needs to be promoted and that there is a real and genuine benefit to X of seeing his mother and, indeed, seeing his father.  There are, however, practical difficulties not in respect of the expense of this, but practical difficulties in terms of the handovers.  The father has indicated that he does not think the handovers will occur and that there will, therefore, be heightened conflict and anxiety.  It is regrettable, but if that is the case, then it may be that the matter needs to come back before me for further consideration. 

22. I am concerned at the capacity of the father to recognise the relationship that X should have with his mother and to be able to put forward any reasonable proposal that the Court could have some confidence would result in X seeing his mother.  When it is said in simple terms, it is not a complicated concept.  This child has a right to have a meaningful relationship with his parents until the evidence suggests to me that it should not happen. The difficulty I have with the father’s presentation is that his application can be seen as tantamount certainly between now and the final determination of these proceedings as severing that relationship.  I do not consider that that is in X’s best interests.   

23. Accordingly, what I propose to do is to give proper regard to the helpful submissions of counsel for the independent children's lawyer.  As is often the case where the Court is left with a conundrum, it seems to me that regard to the wisdom of the independent children's lawyer is unerringly helpful.  It is on this occasion.  What Mrs Tinning puts to me is that what should happen is that X should spend time with the mother for an uninterrupted period, which will have the advantage of stabilising X, resetting, if you like, his understanding of his relationship with his mother and his father and ensuring that there is one parent that provides some continuity in respect of X attending at school. 

24. Once X has settled, it may well then be appropriate to resort to an order which would see X spending time with his father, if, indeed, that is what his father would want.  There is much to be commended in relation to that submission.  It would have, again, the advantage of restoring the relationship X has with his mother, but with each of the parties understanding that they have a focus to work towards in terms of a workable and proper arrangement for X to see each of them.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 June 2016.

Associate

Date:  2 August 2016