Waller and Waller
[2018] FamCA 54
•6 February 2018
FAMILY COURT OF AUSTRALIA
| WALLER & WALLER | [2018] FamCA 54 |
| FAMILY LAW – CHILDREN – Parenting Orders – Final – Undefended hearing – Where the most weighty consideration are the expressed views of a mature young person |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Waller |
| RESPONDENT: | Mr Waller |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Christaki |
| FILE NUMBER: | SYC | 4995 | of | 2013 |
| DATE DELIVERED: | 6 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 6 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | Heffernan Legal |
| SOLICITOR FOR THE RESPONDENT: | No appearance by Respondent Father |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
I discharge all previous parenting orders.
The mother have sole parental responsibility for the child B born … 2002 (“the child”).
The child live with the mother.
The child spend no time with the father.
The child shall have no communication with the father other than communication initiated by her.
The mother shall, not less than once each year, provide to the father by email an update about the child’s educational and extra-curricular progress and health status and relevant information about major events in the child’s life.
The mother provide to Dr C all previous reports and memorandums prepared by family consultants for the purposes of these and previous proceedings under the Family Law Act and a copy of these Reasons, in order that they might provide assistance to Dr C in respect of her future therapy with the child.
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 Waller & Waller 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 SYDNEY |
FILE NUMBER: SYC 4995 of 2013
| Ms Waller |
Applicant
And
| Mr Waller |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
This has been a very complex matter involving parenting arrangements in respect of B born in 2002 (“the child”). A large amount of time has been expended by the court and in the preparation of reports over the years devoted to the issue of these parenting arrangements. Attempts have been made to find a solution to the parties’ dispute. Ultimately those attempts, however, have not been successful. the child spent only a relatively short period of time with her father with the longest continuous period being between June 2012 and July 2013 when, so far as I understand it, she was going each alternate weekend to Queensland on a supervised basis.
The father complains that the mother has acted in a unilateral way and has behaved in a way which has alienated the child from him. The family consultant opines that the history does seem to indicate the mother has never been in favour of the child spending time with her father.
Reports prior to 30 March 2016 have indicated inconsistencies and discrepancies in the child’s account of her father’s treatment of her. The family consultant noted in March 2016 how there was a dissonance between what the child actually said about her father and the manner in which the family consultant observed the child responding to her father.
It is clear however that the child continues to experience emotional turmoil and distress when she is confronted with the possibility of having to make a choice about spending further time with her father. The family consultant opined that the child perceives this as constituting a betrayal of her mother. The family consultant opines that the child experiences sadness, distress, and confusion which the child finds difficult to articulate. The family consultant also opines that the mother has a lack of insight as to the complex nature of the situation that the child finds herself in and concludes that the mother is either unwilling or unable to give the child psychological permission to love a person whom the mother clearly loathes.
I agree with the family consultant that given the tenacity of the long standing history of the family dynamics, there is virtually no possibility that this situation will change in the future. The child has just commenced year 10 and will be 16 years of age this year.
NOTICE TO THE FATHER ABOUT THE FINAL HEARING
This matter was originally listed for the first day of a less adversarial trial before me on 4 August 2017. The father did not appear at the first day of the hearing. The father sent an email enclosing a medical certificate. The email was sent from …:
I note that this matter is listed for a first hearing day at 10 a.m. on 4 August 2017 before Justice Watts.
[Mr Waller] is Medical unfit to attend this hearing.
Please pass this Medical Certify to Justice Watts this hearing is due tomorrow I apologise
For this unforeseen medical condition.
Please confirm that this medical certify has been received to Email … or
Txt …
Regards
[Mr Waller]
The email contained a medical certificate that the father obtained the previous day from a General Practitioner which is in the following terms “Mr Waller has a medical condition and will be unfit for work from 3 August 2017 to 8 August 2017 inclusive”.
On that day attempts to call the father’s mobile phone were unsuccessful. I set the matter down for another procedural event at 10 am on 7 September 2017 and ordered that the mother, her lawyer and the Independent Children's Lawyer could attend that event by electronic means.
The orders I made on 4 August 2017 were forwarded by mail to the father at the address D Street, E Town, Queensland.
When the matter came before me on 7 September the father appeared. On that day, inter alia, the matter was set down for final hearing commencing 30 November and 1 December 2017.
Unfortunately, those hearing dates had to be vacated and new hearing dates were set in an order that was made in chambers on 13 September 2017. Those orders set the date for the final hearing on 6 and 7 February 2018 and extended the time frame for the dates that were set in the orders of 7 September 2017. Again those orders were forwarded by mail to the same address at E Town.
Communications were sent to the father by email at the email address … by my associate on 29 January 2018 and 30 January 2018. Both those communications reminded the father that the final hearing was due to commence on 6 February 2018.
The father has not complied with the directions that were made on 7 September 2017 and 13 September 2017 to file and serve his trial affidavit and an affidavit from any witness relevant to any issue raised by the mother in her trial affidavit.
Following the failure by the father to appear at the hearing, my court officer rang the father’s telephone number (…) as recorded on the court’s Casetrack system on two occasions but was met with a message that indicated that incoming calls to that telephone number were restricted and consequently we were not able to make contact with that telephone number.
Given the history that I have outlined; more generally the overall history of litigation between the parties; the child’s age and her keen desire to have court cases about her finished, the mother and the Independent Children's Lawyer join in an application for the court to hear this matter on an undefended basis. I find that it is in the child’s best interests that I do so.
ORDERS SOUGHT
The mother and the Independent Children's Lawyer applied for the following orders:
16.1.The mother have sole parental responsibility for the child B born … 2002 (“the child”).
16.2.The child live with the mother.
16.3.The child spend no time with the father.
16.4.The child shall have no communication with the father other than communication initiated by her.
16.5.The mother shall, not less than once each year, provide to the father by email an update about the child’s educational and extra-curricular progress and health status and relevant information about major events in the child’s life.
The mother and the Independent Children's Lawyer also sought an order in accordance with the family consultant’s recommendation to release reports to the child’s therapist, Dr C. They agreed that the order, if made, should include a copy of these Reasons.
The orders sought by the mother are in similar terms to what the mother sought in her parenting questionnaire filed 17 February 2017 (Exhibit 6).
THE CURRENT ORDERS
The interim consent orders that were made in the Federal Circuit Court on 10 August 2015 are the current orders that are in force with respect to face to face time between the child and her father. Those orders are conveniently set out in the Independent Children's Lawyer’s case outline at pages 11 to 14. They provide that the child spend time with her father during each school holiday period for seven days. It is common ground that that order has not been complied with since December 2015. Those orders do not deal with the issues of parental responsibility nor with electronic communication. In that regard, the previous final consent orders of 2 April 2013 are still relevant orders. Order 1 provides for an order for equal shared parental responsibility. Order 11 provides that the parents communicate with the child by telephone each Monday and Wednesday evening from 7.30 pm to 8 pm NSW time during the time the child is not spending time/living with them. I was informed that this order was varied in the Federal Circuit Court on 21 February 2014 so that telephone calls happened on Tuesday, Thursday and Sunday evenings. By agreement, those telephone calls are now taking place on Sunday, Monday and Tuesday evenings.
DETAILED CHRONOLOGY
The husband was born in 1966.
The wife was born in 1972.
The parties were married in 2001.
The parties’ first and only child, B, was born in 2002.
The parties separated on 9 July 2010.
The mother and child relocate from Queensland to Sydney in 2012.
Consent orders made 2 April 2013.
Mother makes initiating application 28 August 2013 seeking that consent orders be suspended due to allegations of abuse.
Family inclusive conference held on 20 February 2014, with the report published on 4 December 2014.
Interim consent orders in the Federal Circuit Court were made 10 August 2015. Child to recommence time with father in school holidays.
The parties were divorced in 2015.
December 2015 is the last instance the child spent time with the father, with the exception of the family report interviews on 18 March 2016.
FAMILY REPORT
In the Family Report dated 30 March 2016 the following recommendations were made:
32.1.The mother have sole parental responsibility.
32.2.The child live with the mother.
32.3.That the only time the child spends with the father is at the child’s request. Dr C, the child’s therapist, will assist in making that request.
32.4.All previous reports and memorandums be released to Dr C, in order to provide a context for assisting the child re-initiate future contact with the father.
32.5.The mother update the father on at least a twice-yearly basis on the child’s educational and co-curricular progress and her health status.
The family consultant made no recommendation about telephone time.
The child has previously made allegations of abuse/neglect against her father. However, the family consultant Ms F notes that these allegations were inconsistent and had not been properly tested in the context of this undefended hearing.
Similar to previous reports, Ms F observes that the mother and maternal grandparents are actively inhibiting the child’s ability to have a relationship with the father. The negative way the child describes her father is inconsistent with the positive and relaxed way she responds to him in person. The child feels that spending time with her father would constitute a betrayal of her mother.
In March 2016 the father was proposing that the court make an order moving the child to ordinarily live with him in Queensland. Ms F opines that to change the child’s primary residence at that time would be emotionally and psychologically devastating for the child.
EVIDENCE FROM B’S TREATING PSYCHOLOGIST
Dr C, the child’s Clinical Psychologist, has provided an affidavit dated 22 September 2017. Dr C had seen the child at that point in time on 21 occasions between December 2012 and 28 June 2017. Dr C has written a number of reports giving the court information about her treatment of the child. In her most recent report dated 6 July 2017, Dr C says that the child during the sessions with her has freely spoken to her about her communication with her father, Family Court sessions and about her life in general. Earlier reports detail disturbing information provided by the child about an occasion with the father in 2013 where the child informed Dr C that the father had locked her in a garden shed until about 10pm at night and she was very scared as she was not sure how long she would be left in the shed and it had become dark. The child also complained at that time that the father shook her head and shoulders a number of times during that week that she was with her father.
The child attended a counselling session with Dr C on 2 August 2013. At that time the child expressed the view that she did not want to go on the next face to face scheduled time with her father and a decision was made that she not do so. Dr C as early as October 2013 was making a strong recommendation that the child not continue visits with her father and if the court had them continue, then there be professional supervision. Dr C as early as October 2013 was also suggesting that telephone contact should be monitored.
As indicated, the last time the child saw her father was in December 2015.
In her most recent report dated July 2017, Dr C records that the child’s expressed view was that:
she feels she has no opinion in the court system and that her life revolves around the court system. She says she is trying to learn to manage her emotions by ‘steering herself away from thinking about court’ and destressing with her friends.
The child told Dr C that she would prefer to have no contact with her father at this time in her life. She said that she did not trust her father.
The Independent Children's Lawyer indicates that as recently as last Friday in a meeting with the child, the child confirmed the expressed views as recorded by Dr C in her July 2017 report.
STATUTORY CONSIDERATIONS
There is no issue that the child has a meaningful, close and loving relationship with her mother. The child would benefit from having a meaningful relationship with her father but that relationship has broken down and the child does not want the relationship to continue at this time.
The mother alleges that the father sexually assaulted her during her relationship with the father and the mother and child allege since separation the father has physically abused the child. The father denies these allegations. In the context of this undefended hearing I do not need to explore those issues further.
The views expressed by the child are the most weighty statutory consideration. This is because it is clear that the child is a mature young person. Counsel for the mother drew attention to particular parts of the Independent Children's Lawyer’s tender bundle (Exhibit 7). At page 183 the child’s most recent school report has the head of her year describing her as an “interesting and thoughtful young adult”. There is a record at page 204 of Dr C’s notes of her having employment in a café which speaks to her level of maturity.
The child’s views in March 2016 are set out comprehensively in the family report at paragraphs 69 and 71. At that time the child was stating even if she spent no time with her father, she would still want to have weekly phone calls with him. She did not, however, want FaceTime or Skype calls with him. She, however, herself expressed the clear position that she did not want to be the person who made decisions about face to face time. She also was reticent about spending any time with him.
At page 202 of Exhibit 7, Dr C’s notes dated 31 May 2017 record that:
· [the child] feels no-one listens to her in the court –
· [the child] feels [sic] should be nicer people in the courts to help the young people
…..
· [the child] just wants a normal teenage life – no longer having to go to court, [Queensland], seeing Dad, being put into awkward situations
Those views seem to have calcified into a stronger and more clearly expressed position as set out in the evidence from Dr C and statements made by the Independent Children's Lawyer today about conversations as recent as last Friday.
The child appears to have a good relationship with her maternal grandparents.
It appears since the separation the mother and the maternal grandparents have made all the decisions in respect of the child and the father appears to have played no role in decision making in respect of the child (he would of course say because of the mother’s unilateral behaviour). It also appears that the father has had regular telephone communication three times a week with the child but I have no information that would give me any insight as to the quality of that communication apart from the child’s expressed view that she wishes it to cease.
The child has been mainly financially maintained by the mother and there has been little or no financial support provided by the father.
There has historically and continues to be a difficulty and expense in relation to arranging any type of face to face time between the father and the child given that the mother lives in G Town in New South Wales and the father lives at E Town in Queensland, a distance I am told is over 900kms.
I am satisfied that the mother is capable of caring for the child’s physical needs. There is, of course, a question raised by the family consultant over the mother’s capacity to properly cater for the child’s emotional needs given her failure to encourage and facilitate the child’s time with her father. There is also a doubt cast over the father’s physical treatment of the child. I infer that the maternal grandparents have the capacity to care for the child. I have no information from Ms H who is the father’s partner as to what her parenting capacity might be.
There is no suggestion that the child has any Aboriginal or Torres Strait Islander background.
I have earlier mentioned a complaint that the mother made about sexual assault by the father. The mother reported that assault to the police. The police took no action in relation to that alleged assault and since the separation, there has been no family violence orders.
In relation to the likelihood of further proceedings, I find it is more likely that if the child’s wishes are not respected by way of court orders then future proceedings are more likely than if they are respected.
PARENTAL RESPONSIBILITY
Given the total breakdown between the parents and the historic failure of the order for equal shared parental responsibility, I find it is in the child’s best interests to make an order for sole parental responsibility in the favour of the mother.
OTHER ORDERS
I otherwise find it is in the child’s best interests to make orders as sought jointly by the mother and the Independent Children's Lawyer.
I acknowledge that it is inevitable that the father will feel aggrieved by a final order that the child not spend time with him nor communicate with him unless she chooses to do so. I infer from what he has otherwise written in previous material, he also has a keen sense that the family law system has not properly protected his daughter’s relationship with him. My focus however at this hearing has to be upon what the current reality is for the child and my duty is to make an order that I believe is in the child’s best interests at this time.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 6 February 2018
Associate:
Date: 7.2.2018
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