Wasser and Wasser

[2009] FamCA 398

FAMILY COURT OF AUSTRALIA

WASSER & WASSER [2009] FamCA 398

FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – application for enforcement mischaracterised – subsequent contravention application dismissed –
application to substitute Family Consultant dismissed – order sought by applicant father to “say goodbye” to daughter because of intractable difficulties in undertaking supervised or other time spent between them

Family Law Act 1975 (Cth)

APPLICANT: Mr Wasser

RESPONDENT: Ms Wasser

INDEPENDENT CHILDREN’S LAWYER: Ms Lyndon

FILE NUMBER: CAC 103 of 2009

DATE DELIVERED: 6 May 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 6 May 2009

REPRESENTATION

COUNSEL/SOLICITOR FOR THE

APPLICANT:

Ms Grogan

COUNSEL/ SOLICITOR FOR THE

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyndon

Orders

1. The application filed by the father in the Federal Magistrates Court on 30 January 2009 is dismissed.

2. The child will live with her mother Ms Wasser.

3. The mother will have sole parental responsibility for the child.

4. The orders made by me by consent on 28 May 2008 are discharged with the exception of orders 8 and 13 which are set out hereafter for convenience.

   (a)The parties are restrained from discussing with the child past allegations of abuse and are restrained from making any suggestion or comment to the child that her father may have carried out or may have been involved in any act of sexual interference or abuse in relation to the child.

   (b)The father is at liberty to send letters and gifts to the child and the mother will ensure that the child receives them and will not return them. 

5. (a)      Notwithstanding the last mentioned order the child’s father may meet with her for the purposes of saying goodbye to her

   (b)This meeting will take place unless the parents otherwise agree in consultation with the Independent Children’s Lawyer on Wednesday 13 May 2009 at the S Cafe.

   (c)The meeting between the child and her father will take place in the presence of the Independent Children’s Lawyer Ms Pamela Lyndon.

   (d)Prior to the meeting between the child and her father the child will meet with Ms M, the Family Consultant attached to the Family Court Registry in Canberra, for the purposes of Ms M explaining to the child about the meeting she is about to have with her father.

   (e)The meeting between Ms M and the child and Ms Lyndon will occur on Wednesday 13 May 2009 at 3pm unless the parents and Ms Lyndon otherwise agree. 

6. The mother will continue to keep the father aware of the address at which she is living with the child and any address to which any letters to the child should be directed. 

7. The matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 103 of 2009

MR WASSER

Applicant

And

MS WASSER

Respondent

REASONS FOR JUDGMENT

1. Under the Family Law Act1975 (Cth) any application that relates to children has to be determined ultimately in accordance with the best interests of the child.[1]  In this matter the application by the father is one that is made I think with due consideration and certainly without any malice on his part and motivated by a desire to ensure that his daughter feels that she is supported by him and that he utilises every possible opportunity or has utilised every possible opportunity to ensure that she has an opportunity to have a meaningful relationship with him. 

   [1] Family Law Act 1975 (Cth) s 60CA.

2. The history of the matter is vexed and long and I do not propose to recite it.  I do, however, propose to comment briefly about a couple of matters. 

3. First, the Act requires that I should take account of the child's best interests.  It also obliges me to give consideration to the presumption that there should be equal joint parental responsibility in relation to the child.[2]  This is a matter in which that is not appropriate and neither parent has sought that should be so.  I respect their decision about that matter and would, in any event, believe it would be inappropriate in this case. 

   [2] Family Law Act 1975 (Cth) s 61DA(1).

4. In his primary application, the father is seeking a continuation of orders that were reached by consent as recently as last year after much litigation and much turmoil.  It would require in the ordinary course of events a significant change for me to feel that it would be appropriate that there should be a variation in what had been agreed between two parents who were at the time and now - and I use the word advisedly - courageously trying to do what is best for their daughter. 

5. However, having listened carefully to the submissions made by the Independent Children's Lawyer, having noted that the mother, while not consenting to the order, would not oppose it (and the subtlety associated with that distinction) and having listened to the evidence of the family consultant, Ms M, I am satisfied that it would be inappropriate at this point to change the arrangements originally set out in the orders made in May 2008.  That is, I do not believe it is appropriate to agree with the application made by the father that another family consultant should be substituted for Ms M.

6. In coming to that consideration, I am taking account of the benefit to the child in having a meaningful relationship with both of her parents,[3] but I am also looking primarily at the need to protect her from in this case psychological harm.[4] The harm that may be occasioned to her in this matter is one identified by the Independent Children's Lawyer as being represented by the fact that she has been interviewed by many people over many years and that to change her family consultant at this point would, in my opinion, not be in her best interests. I am taking account of the nature of the relationship of the child with each of her parents,[5] and in particular, the difficulty she has in the present in the relationship with her father. I am looking at the willingness of both of the parents to facilitate and encourage a relationship[6] of sorts and the difficulties that are presently impeding that development.  I am looking at the capacity of the parents to provide for the child’s psychological needs,[7] particularly her emotional needs, in the course of the arrangements that have been proposed.

   [3] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [4] Family Law Act 1975 (Cth) s 60CC(2)(b).

   [5] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).

   [6] Family Law Act 1975 (Cth) s 60CC(3)(c).

   [7] Family Law Act 1975 (Cth) s 60CC(3)(f)(i).

7. There are no current issues relating to family violence that I need to take into account.  The matters that were the subject of a trial previously are not immediately relevant but do provide part of the backdrop to the whole of these proceedings.  I am conscious of the fact that it is important that I should make orders that are least likely to lead to the institution of further proceedings.[8]  In my opinion, if I were to accede to the application it may simply provide for yet another episode in the sad life of the child, and in particular the questions relating to her relationship with her father, because the new family consultant may encounter precisely the same problem.  I am also taking account the child’s views about what she wants.[9] 

   [8] Family Law Act 1975 (Cth) s 60CC(3)(l).

   [9] Family Law Act 1975 (Cth) s 60CC(3)(a).

8. For these reasons, in my opinion, I should refuse the application made by the father.  I note in doing so that his lawyer, Ms Grogan, had indicated to me that if I were to do that, the father would seek orders that discharge the existing orders except for three, being that: 

   i.The father be permitted to meet with the child to “say goodbye”

   ii.The father be able to send cards, letters and gifts to the child

   iii.Each of the parents be restrained from discussing matters of the past relating to alleged (and I should indicate not proved allegations) of assault on the child by her father. 

9. Those are orders that I make and I make those orders taking account of the matters that I have identified immediately previously in this my judgment.  I make those orders acknowledging - and I do so freely and deliberately - the courage that it required for the father to make a decision such as that.  The hardest thing I think for any parent ever to do is in fact to give up what he or she considers to be an opportunity to have a relationship with their child.  I hope that the effect of what the father is courageously undertaking today will be that in due course the child will want to resume a relationship with him to explore with him the benefits of his own cultural background and her shared cultural background with him and that she will in due course appreciate the difficulties that the father has had today in coming to the decision that he did. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: 

Date:  19 May 2009