Wallace and Wallace

[2017] FamCA 814

FAMILY COURT OF AUSTRALIA

WALLACE & WALLACE [2017] FamCA 814

FAMILY LAW – CHILDREN – Interim orders – Live with – Spend time with – Where the mother seeks an order that the children live with her – Where the father seeks a suspension of the mother’s time with the children – Where there is a final intervention order in place listing the father and children as protected persons against the mother – Where the father concedes the mother poses no risk to the children – Consideration of the best interests of the children – Where it is ordered that the mother’s time with the children be increased to five nights per fortnight – Where given the risks to the children associated with inter-parental conflict it is appropriate to expedite the proceedings.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Wallace

RESPONDENT: Mr Wallace

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3290 of 2015

DATE DELIVERED: 12 October 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Pascale Legal Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: Mr Wabnitz

SOLICITOR FOR THE RESPONDENT: Daniel John Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That the orders made 9 February 2017 be discharged.

2. That until further order C born … 2008 and D born … 2011 (“the children”) live with the father and spend time with the mother as follows:-

   (a)On each alternate weekend from the conclusion of school (or 3 pm if a non-school day) until the commencement of school on Monday (or 12 pm if a non-school day) and on the intervening Wednesday from the conclusion of school (or 3 pm if a non-school day) until the commencement of school on Friday (or 10 am if a non-school day).

3. That all handovers that do not take place at the children’s school do occur at the Suburb E Police Station or such other place as the parties may agree.

4. That the father be restrained from attending any handover of the children unless the parties shall otherwise agree.

5. That the mother be at liberty to attend any curricular or extra-curricular activity of the children or each of them and in particular that she be permitted to attend any school function, concert, sporting event, parent-teacher interview or other activity to which parents are normally invited.

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 Wallace & Wallace 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 3290  of 2015

Ms Wallace

Applicant

And

Mr Wallace

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Amended Initiating Application filed 8 December 2015, Ms Wallace (“the mother”) seeks orders that C born in 2008 (“C”) and D born in 2011 (“D”) (collectively “the children”) live equally with the parties and that they have equal shared parental responsibility.

2. By Response filed 9 November 2015 Mr Wallace (“the father”) seeks orders that he have sole parental responsibility, that the children live with him and spend time with the mother as may be agreed.

3. There has been significant litigation between the parties in respect of the ongoing parenting arrangements for the children.

4. Following a judgment delivered and orders made on 9 February 2017, the proceedings were adjourned to 7 April 2017 with the children to reside with the paternal grandparents and spend gradually increasing time with the mother.

5. On 7 April 2017 the paternal grandparents sought to be excused from the proceedings and orders were made dismissing their application.

6. Orders were made until further order that the children live with the father and spend time with the mother as follows:-

   i.Each alternate weekend from the conclusion of school (or 3 pm if a non-school day) until the commencement of school on Monday or 12 noon if a non-school day) commencing 14 April 2017;

   ii.Each intervening weekend on either the Saturday or Sunday from 10 am until 5 pm commencing Saturday 8 April 2017.

7. The orders reflected the level of dispute between the parties in that the father was restrained from attending any handover of the children between the mother, the paternal grandparents or any other person that the father may nominate.

8. Notwithstanding that the orders were made on 7 April 2017, the Court made the unusual order giving liberty to either party to relist the proceedings on 24 hours’ notice with such order to be discharged by 4 pm on 28 April 2017.

9. The Court considered that it was important and clearly in the children’s best interests that they resume and recommence their time with the mother and if that did not occur pursuant to the orders then it was imperative that the Court review the ongoing circumstances of the children at the earliest opportunity.

APPLICATION IN A CASE FILED 10 JULY 2017

1. The mother filed a further application seeking that the orders made on 7 April 2017 be discharged and that the children live with her and spend no time with the father for a period of six months and thereafter supervised time as may be recommended by a therapist.

2. The application was supported by the mother’s affidavit of 10 July 2017.  As at the date of that affidavit the mother alleged that the father had withheld the children from her since 20 May 2017.  It was a clear assertion that the father was in breach of the orders of 7 April 2017.

3. Whilst the reason for the breakdown of the children spending time with the mother is not necessarily the subject of clear determination, it appears uncontroversial that the children did not spend time with her.

4. The mother says that her time with the children in April 2017 was the subject of interference and disruption by the father.  She alleges that he utilised various tactics designed to be a disincentive to the children wanting to remain with the mother.  In particular she complains that the father contacted the children but in particular C by telephone, text message and other electronic communication with the intention of engaging the child in a course of conduct such that he would tell the father of his observations of the mother and the activities in which the mother and the children were engaged.

5. The mother also alleges that the father’s conduct was so obsessive that he caused to be secreted into the children’s possession mobile phones so that they could contact him.

6. A raft of text messages are annexed to the mother’s affidavit which she considers, when read together, have only one purpose namely to undermine the children’s relationship with her.

7. On 4 March 2017 the mother was charged with six counts of breaching an intervention order which prevented her from remaining within 50 metres of the children.  The father made a complaint to the police that the mother had attended a school assembly on 13 April 2017 by attending at a school sports day.

8. On 12 May 2017 the mother asserts that she was required to discipline C for crossing a road without instruction.  The child alleged that the mother had punched him and a text message from the father to C in the following terms is informative:-

   Police are on their way! 

   Make sure you tell the police EVERYTHING! 

   Tell the truth! 

   Shout for help as soon as you see them. 

   Run to the police and ask them to help you & [D].

9. The mother was then subsequently arrested and was refused police bail and held in custody for a period of one week.  The conflict between the parties was made more complex by an apparent change in the allegiance of the father’s former partner Ms H who had previously supported the father’s allegations in respect of the mother’s inadequate parenting capacity and has now alleged that the father has threatened to kill her.  There is apparently a major crimes investigation being undertaken that may also be considering charges of assault and possession of counterfeit money.

10. In summary, the mother is concerned at the level of secret communication between the father and the children, his continued attempts to hinder her attending at school assemblies and events and encouraging C to ignore and not be responsive to appropriate parenting direction by the mother.

THE FATHER’S AMENDED APPLICATION IN A CASE FILED 30 AUGUST 2017

1. In response to the mother’s application, the father filed an Application in a Case on 27 July 2017 seeking that the orders enabling the mother to spend time with the children be suspended.  The father also sought orders that he be permitted to enrol the children at the L School.

2. It is an important consideration that the father filed an Amended Application on 30 August 2017 seeking orders in the following terms:-

   1.     That the children do spend time with their mother on each alternate weekend from the conclusion of school (or 3:00 pm if a non-school day) until the commencement of school on a Monday (or 12:00 pm if a non-school day) and on Wednesday from the conclusion of school (or 3:00 pm if a non-school day) until the commencement of school on Thursday (or 10:00 am if a non-school day).

   2.     That all handovers that do not take place at the children’s school do take place at the [Suburb E] Police Station.

   3.     That the father be at liberty to attend handovers.

3. The father continues to seek orders that the children be enrolled at his nominated primary school.

4. The father concedes that the children had not spent time with the mother since 28 April 2017.  He considered in paragraph 16 that:-

   Both children have been severely traumatized by the contact visitations that they have had with their mother since 7 April 2017.  They have come back from the visits begging me to not make them go back to her again.

5. The father does not concede that there is any validity to the allegations of Ms H but does accept that there is now an interim intervention order that names Ms H and her two children as “protected persons”.

6. As a result of the intervention order and because Ms H’s children attend at the M School (the children’s current school), he was not able to attend at the school in case he breaches the provisions of the intervention order namely, that he not be allowed to be within 50 metres of the protected persons so named.

7. It is as a result of that condition that he had moved with the children to his parents’ home in L School and he considered their current school in Suburb N to be too far to travel each day.  His nominated school is in close proximity to his parents’ home.

8. It is not controversial that notwithstanding that the father sought orders that would allow the children to be enrolled at the L School, he acted unilaterally in both enrolling the children and then facilitating their attendance at the school.  There is no circumstance where it could be said that the mother was either informed or given any real opportunity to object.

9. As matters now transpire the mother recognises that it would be destabilising for the children were they to be removed from their school and whilst she opposes their ongoing attendance, she accepts that they should remain at their current school until the end of the 2017 academic year.

10. The father relies upon his further affidavit of 30 August 2017.  It is difficult to reconcile the father’s affidavit with the orders that he seeks in the amended application.

11. In paragraph 91 he responds to the mother’s allegations and denies that he has engaged in inappropriate communication with C, that he prevented the mother from attending school events and that he has ever encouraged the children to ignore the mother’s direction.  In summary he says that “I have not alienated the children from the mother’s life”.

12. Paragraph 92 is in the following terms:-

    In response to paragraph 66 of the mother’s affidavit, I have grave concerns about the mother’s capacity to appropriately parent the children in light of the recent allegations of abuse.

13. It is difficult to reconcile the father’s stated position in relation to orders that at the very least would provide the mother with significant and substantial time.

14. As at the date of hearing the Court was advised that notwithstanding the history as and from April 2017, the mother was now spending time with the children pursuant to the order.

15. The father’s counsel submitted that the father has no objection to the mother attending upon the children’s school for whatever purpose may be necessary and in particular in respect of any event or occasion to which parents are normally invited.

16. I cannot ignore the final intervention order made 22 January 2016 as appears at annexure “BJW2” to the father’s affidavit of 27 July 2017.  The details of the intervention order prohibit the mother from being within 50 metres of the protected persons being the children.  She is not permitted to contact them either directly or indirectly, not able to remain within 50 metres of the boundary of the place of residence nor to enter on or be within 50 metres of the boundary of any education or care facility in which the children attend.

17. The conditions attached to the intervention order are however subject to orders that may be permitted in accordance with an order made under the Family Law Act 1975 (Cth) (“the Act”).

18. There is clearly a level of inconsistency both in terms of the orders the father now seeks and in particular his general view that notwithstanding the mother’s attendance at the children’s school (for the concert) was a transgression that the father considered should properly warrant police intervention, he now resiles from that position.

19. An issue was raised with counsel as to whether I should make orders that significantly alter the conditions of the intervention order on the basis that clearly the mother does not any longer pose a threat or risk to the children and that the various conditions of prohibition are not appropriate and indeed not in the children’s best interests.

20. Given I intend to list the matter for an expedited hearing, I do not propose to adopt that course.  There is also a reasonable expectation that the father will now cause the intervention order to be discharged given his concession that the mother does not pose any risk to the children.

PRINCIPLES TO BE APPLIED

1. In respect of any consideration of parenting orders affecting a child or children, the paramount consideration is their best interests. I inform myself in respect of those matters by reference to the primary and additional considerations in s 60CC of the Act and in particular s 60CC(2)(a) requiring the Court to have regard to the benefit of a child or children maintaining a meaningful relationship with their parents.

2. Whilst there have been considerations as to the potential risk that the mother may pose to the children according to the father, I do not consider that the manner in which he has crafted his amended application could in any way be consistent with an assertion that the mother presents as a risk.

3. I bring to account the additional considerations and have regard to the matters that were given careful consideration in my judgment delivered 9 February 2017.

4. Of concern are the allegations raised by the mother that the father has involved C in the conflict.  Irrespective of whether the allegation is without substance, it seems to me uncontroversial that the children are being drawn into the dispute between the parties.  Notwithstanding the order of 9 February 2017, the mother’s time with the children was the subject of disruption until a date close to the most recent hearing.  Their school has been the subject of change and there is now a high level of uncertainty as to their current living arrangements.

5. I have given consideration to whether the proceedings need to be the subject of expedition.  I have determined that the risks to the children are now at a level that can only be assessed, and if necessary ameliorated, by a timely consideration of the competing claims of the parties.

6. I propose to list the matter at an early date in 2018.

7. Given that intimation, the only matter that needs to be considered is the extent to which the mother’s time with the children will be altered pending the matter being listed for trial.

CONCLUSION

1. I do not think that it would be in the interests of the children to change their primary residence from the care of their father to the mother if it is the reasonable intention of the Court to have one comprehensive hearing.

2. Whatever the concerns each of the parties may have about the other’s ability to parent the children, at present they reside in the home of the paternal grandparents.  The Court has confidence that they provide an appropriate and safe environment for the children.

3. The father however seeks that the mother’s time be extended to an overnight on the intervening Wednesday with the intention that he will have a free weekend each alternating week.  There is some sense in that application.

4. There is also some considerable advantage to the children in the time that they spend with the mother being the subject of modest extension enabling her to engage more comprehensively with their activities both curricular and extra-curricular.  That outcome is assisted by the unequivocal position of the father that the mother should be permitted to engage as fulsomely as is possible in the various activities of the children.

5. I propose to order that until further order the children live with their father and spend time with their mother each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and in the intervening week from the conclusion of school on Wednesday to the commencement of school on the following Friday.

6. As requested by the mother and conceded by the father, the orders will also provide for the mother to be able to engage in the children’s activities whether school based or otherwise.

7. The father seeks liberty to attend handovers personally.   There was good reason for the restriction in respect of the father’s ability to attend handovers in my reasons delivered 9 February 2017.  Even the most cursory consideration of the most recently filed affidavits of the father would suggest that he has not in any way ameliorated his position in respect of the mother in that regard and as such the hostility and disputation appears unabated.  I am not confident that in circumstances where there is already a risk of the children being brought into the conflict I consider that subject to the parties reaching an alternate agreement, the current prohibition restraining the father from attending any handover should remain.

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

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 October 2017.

Associate: 

Date:  12 October 2017