Wales and Maric

[2014] FCCA 1767

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALES & MARIC [2014] FCCA 1767

Catchwords:
FAMILY LAW – Parenting – older child expressing strong resistance to spending time with mother – what interim contact to order pending participation in anchor program and appointment of independent children's lawyer.

Legislation:

Family Law Act 1975, s.68L

Applicant: MS WALES

Respondent: MR MARIC

File Number: WOC 316 of 2014

Judgment of: Judge Altobelli

Hearing date: 24 July 2014

Date of Last Submission: 24 July 2014

Delivered at: Wollongong

Delivered on: 24 July 2014

REPRESENTATION

Solicitors for the Applicant: Sward Law

Counsel for the Respondent: Mr Moutasallem

Solicitors for the Respondent: Platinum Lawyers

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child [X] born [in] 1999 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

2. Leave be granted to the Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court.

3. Leave be granted to the Independent Children’s Lawyer to have photocopy access to documents produced on Subpoena in these proceedings.

4. Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

5. All prior parenting orders be suspended.

6. The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.

7. Notwithstanding the Order 6, the Father is at liberty to inform the Child about the Order that has been made today.

8. The Child is to live with Father.

9. The Child is to spend time with the Mother as follows:

   (a)Commencing 2 August 2014, each Saturday evening between 5:30pm – 7:30pm with the Father to drop off and collect the Child at any restaurant nominated by the Mother in the Parramatta district.

   (b)Commencing from 2 November 2014 (and replacing Saturday time), on Sundays between 10:00am – 2:00pm with changeover to take place at the McDonald’s family restaurant nearest to the Father’s house.

   (c)In addition, such further time as the Child may request.

10. The Child is to have telephone communication with Mother each Tuesday and Thursday between 7:00pm – 7:30pm and each parent is to do all things necessary to facilitate such communication taking place.

11. The parents are to do all things necessary to enrol the Child and facilitate both the Child’s participation and their participation (if required) in the Anchor program.

12. The matter be adjourned to 14 October 2014 at 11:30am for mention.

13. Leave is granted to the parties to relist on 7 days notice regarding the implementation of these Orders.

THE COURT NOTES THAT:

A.The Independent Children’s Lawyer is requested to meet with the Child if considered appropriate before 14 October 2014 and is at liberty to explain the Orders made today to the Child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 316 of 2014

MS WALES

Applicant

And

MR MARIC

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before the Court relates to a young man, [X], who is 14 years old and, in fact, will shortly turn 15.  The 2004 Orders relating to him are plainly out of date.  [X] has elected to live with his father.  He has not spent time with his mother for a considerable period.  The evidence of both parents, as well as the Child Inclusive Conference Memorandum of 15 July 2014, clearly suggests that, for some reason that is not presently understood, [X]’s relationship with his mother has broken down.

2. The issue that the Court had to decide today was what Orders were to be made for [X] to spend time with his mother during the period that he participates in the Anchor program.  The Orders proposed by the Mother and the Father are contained in separate minutes that I will simply incorporate by reference into these reasons.  I had the benefit of a written case outline from both Ms Brady and Mr Moutasallem and, again, I incorporate those documents into these, my reasons, including the lists of the relevant affidavits that each party relies on. 

3. The Mother relied upon the following documents:

   ·Initiating Application, filed 8 April 2014;

   ·Affidavit of Ms Wales, sworn 7 April 2014;

   ·Affidavit of Mr M, affirmed 7 April 2014

   ·Affidavit of Ms Wales, sworn 17 July 2014; and

   ·Documents produced under subpoena to NSW Police.

4. The Father relied upon the following documents:

   ·Response, filed 8 May 2014;

   ·Affidavit of Mr Maric, sworn 8 May 2014; and

   ·Affidavit of Mr Maric, sworn 22 July 2014.

5. Before dealing with this matter, I had made a number of comments to the parents in the hope that they might be able to reach agreement about the resumption of [X]’s time with his mother.  Whilst it was encouraging that they at least agreed in principle that this was to take place, it was discouraging that they could not reach agreement about it.  Perhaps, with hindsight, that is not surprising, nor is it surprising that there is a certain polarity to their respective proposals.  What is abundantly clear from the evidence that each files is that they cannot communicate, they have no trust, and they blame each other for the breakdown in [X]’s relationship with his mother. 

6. If the Court’s experience in cases similar to this in the past is repeated in [X]’s case – and it should be noted to the parents that often history repeats itself – what will happen is that when there is an analysis of why [X]’s relationship with his mother has broken down, it will be apparent that they have each contributed to this in different ways.  At this particular stage of this Court case, [X]’s parents are, I dare say, incapable of accepting this advice from the Bench.  Perhaps with time that will change. 

7. The other matter that is abundantly clear, particular from the Child Inclusive Conference Memorandum, is that this young man has expressed a view in quite strident terms against living with his mother and in favour of living with his father.  That opposition does not extend, at least in accordance with the Memorandum before the Court, to spending time with his mother.  The harsh reality that confronts the Court is that it has been a long time since he has spent time with his mother, and it needs to be established, sensitive to [X]’s needs, conscious of the incredible level of conflict between the parents, but seeking nonetheless to re-establish, at least, a physical contact between [X] and his mother; and, perhaps more significantly, his siblings. 

8. The Father’s proposal, I accept, is the one that is probably both more child-focused in the short term, but, perhaps more significantly, achievable.  If the Father has suggested a Saturday evening dinner, then at least that conveys to the Court his willingness to make it happen.  It will be an opportunity for [X] to spend time, not just with his mother, but with his siblings as well.  I bear in mind the context that within a relatively short period of time he should have started his participation in the Anchor program.  Once that participation has started (and I am informed that it will be two months before it starts and then the process will take two months) the prospect of increasing his time to four hours on a Sunday and removing the limitation of the public place becomes more achievable.

9. The parents should not underestimate [X]’s ability to throw a metaphorical spanner in the works of these Orders.  He may want to spend time with his mother, but on his terms.  He may want to communicate with his mother, but on his terms.  As long as he spends time with his mother and communicates with her, as long as that fact is happening, there is still hope for the resumption of his relationship with her.  In any event, the orders provide a benchmark of minimum terms.  I expect the Father to tell [X] about the Orders that I have made today and nothing else.  I expect the Father to tell [X] that he expects him to go along with it.  The Mother has to have realistic expectations about what will happen in the early times.  The Family Consultant has very wisely suggested that she may need to develop strategies and skills to re-establish and rebuild her relationship with [X] and the Family Consultant has referred to some services that might be of assistance to her.  She would be well-advised to take this on board. 

10. I have appointed an Independent Children’s Lawyer so that [X] has a voice, but also so that a neutral person might be able to act in a facilitative role and perhaps even provide a conduit between the Anchor program, the Court and the parents.  Whilst the Court is going to leave it entirely to the Independent Children’s Lawyer, it might be useful for the Independent Children’s Lawyer to have met [X] before the matter is next in Court on 14 October 2014. 

11. As I said to the parents, these cases are difficult, they are complex, but the stakes are very, very high, as it is well recognised that the loss of a relationship between a child and a parent results in long-term potential psychological harm, both for the parent who is rejected as well as for the parent who is favoured.  One can only hope that the parents are prepared to commit themselves to avoiding what might turn out to be an absolute tragedy for [X] and for themselves. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       26 November 2014