Wattel and Evans (No 2)

[2009] FamCA 1046

FAMILY COURT OF AUSTRALIA

WATTEL & EVANS (NO. 2) [2009] FamCA 1046

FAMILY LAW – CHILDREN – Parenting orders – with whom a child shall communicate

Family Law Act 1975 (Cth)

APPLICANT: Mr Wattel

RESPONDENT: Ms Evans

INDEPENDENT CHILDREN’S LAWYER: Ms Chan

FILE NUMBER: BRC 4793 of 2008

DATE DELIVERED: 21 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 21 October 2009

REPRESENTATION

THE APPLICANT: Appearing in person

SOLICITOR FOR THE RESPONDENT: Ms Curran as Town Agent for Watts, McCray McGuinness Eley
Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

1. The matter is adjourned to the Callover of matters ready for trial before Justice Murphy at 9.00am on 18 December 2009 in the Brisbane Registry of the Family Court of Australia for the allocation of a 2 day final hearing.

2. The Independent Children's Lawyer is to prepare a List of Directions considered by her to be necessary for each of the parties including herself to have this matter ready in all respect for final hearing and that those directions be filed by 4.00pm on 4 December 2009 after each of the parties has had an opportunity to provide input to those directions indicated by the Independent Children’s Lawyer.

3. The father shall indicate to the Independent Children's Lawyer all documents that he intends to rely upon at the final hearing, that are not contained as an annexure to affidavits or other material already before the Court, and the Independent Children's Lawyer shall compile a list of documents to be relied upon by the father and the mother.

4. Leave is granted for the Father to rely at the final hearing upon the document filed by him on 5 October 2009 and the affidavit filed by him on 27 March 2009.

5. Leave is granted for the Mother to rely at the final hearing upon the documents filed by her on 7 October 2009.

6. Leave is granted to the parties to file a further affidavit if necessary relating solely to the issues for final hearing.

7. The Father has leave to file by leave today his document “Orders Sought” and that such document become his Amended Application for Final Orders sought by him.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraph 5 of the Orders made on 27 April 2009 be varied as follows:

   a)The Father shall have telephone communication with the child … born … August 2002, between 5.00pm and 5.20pm commencing on Wednesday 4 November 2009 and between those times time each alternate Wednesday thereafter.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4793 of 2008

MR WATTEL

Applicant Father

And

MS EVANS

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. This is a matter in which, on 27 April 2009, I made orders and delivered ex tempore reasons in respect of the allocation of the co-parenting arrangements in respect of a daughter born in August 2002.  At that time the child was six.  She has now turned seven. 

2. It is abundantly clear, and can be found, even on an interim basis, that there is a history of extreme conflict between the parents, each of whom have been assessed by a number of people as loving and caring deeply about the best interests of the child. 

3. That each of these two parents can care about, and love deeply, their only child and, appropriately, want what is best for her is to their considerable credit.  However, the conflict between them has been described by the family consultant, Mr P, who gave short evidence this morning on the first day of this trial, as “pathological.”

4. Mr P’s impression is shared by Ms Y who is a social worker who has prepared a family report on the instructions of the Independent Children’s Lawyer dated 26 June 2009. 

5. Dr M, who is a consultant psychiatrist, has also prepared a report upon instructions from the Independent Children’s Lawyer and her report is annexed to an affidavit by her filed on 19 August 2009. 

6. Dr M says in that report, amongst other things:

   The mother believes that the father has personality traits of inflexibility, stubbornness, and that he is utterly preoccupied with her.  Certainly, it appears puzzling that decisions by the court do not appear to be able to diminish the intensity of hostility between the parties and the impression is that there is some degree of secondary gain for [the father] in pursuing litigation.  The situation may well change if the mother’s partner has left the relationship.  My impression was that she is very burdened with anxiety about the court processes and that she is quite despairing of any resolution of the problem.  Indeed, I think it is very significant that she has made [the father] the offer of handing over the care of her daughter to him.  In essence, whilst I could not identify a psychiatric disorder in [the father], I believe that the interaction between the parties is highly pathological and that its effect upon their child is very likely to be disturbing.  It would be in the child’s best interests for legal processes to be resolved finally.

7. There are, of course, many layers to the onion in the expression of opinion just referred to. 

8. The resolution of many, or at least some, of those issues must await a final hearing at which, as I have explained to the self-represented father this morning, witnesses will give evidence and will be cross-examined and the opportunity will be afforded to both parties to make submissions based on that evidence about the findings that a court should make.

9. I referred in my earlier reasons to the restrictions inherent in court processes prior to a final hearing at which each and all of those matters can take place. 

10. It will be seen that Dr M, too, shares the opinion of Ms Y and Mr P that the conflict and the interrelationship between these co-parents of this yet very young girl is pathological.  The reasons for it remain elusive. 

11. Both parents assert that they care deeply about their daughter and seek what is best for her.  I have little doubt, on the evidence before me (and there is certainly little doubt expressed by any of the three experts to which I have made reference) that that is true of each of her parents.

12. It therefore remains as perplexing as it is sad that these two parents cannot put aside whatever factors go to make up the conflict between them so as to allow the child to, accordingly, prosper. 

13. I, too, share Dr M’s opinion that the child’s best interests will be served if legal processes are resolved finally, although I have some doubts that, at the moment, the matter is genuinely ready for trial.

14. I have even more significant doubts that the processes of this court, the findings made by it and the ultimate orders which reflect those findings, will bring about a proper solution for the child in this appalling position in which she finds herself.

15. Nevertheless, I will make orders that will proceed this matter to a final hearing as soon as what the exigencies of court resources will allow.

16. I have also, in that regard, made orders which involve the Independent Children’s Lawyer actively so as to assist the self-represented father (and also the represented mother) in arriving at the directions, and other necessary steps, that need to be taken to allow this matter to be placed on my callover and, thereafter, to be allocated final hearing dates. 

17. Pending that, an application is made today by the mother to remove from the orders, earlier made by me, paragraph 5, which refers to telephone communication between the father and the child. 

18. That order provides:

    The father communicate by telephone with the child, […], between 5.00pm and 5.20 pm on Wednesday and Friday, [on specified dates] and between those times and each alternate Wednesday and Friday thereafter and on Wednesday, [on a specified date], and each alternate Wednesday thereafter.

19. The father currently sees the child from after school Thursday until the commencement of school on Monday each alternate week.  Accordingly, he spends substantial and significant time with the child each alternate week. 

20. In addition, he enjoys time with the child during school holiday periods and, in that respect, it is to be noted that the major school holiday period for the year is to commence in a number of weeks.

21. I have already referred to the opinion of Dr M that the mother is “very burdened with anxiety about the court processes.”  Indeed, Dr M goes on to record that which is reflected in the mother’s formal orders filed by her on 7 October 2009 which pose, as an alternative to the orders sought by her, that the child live with the father and spend specified fortnightly and holiday time with her. 

22. Conscious of the provisions of Division 12A of the Act, I permitted the town agent for the mother’s solicitor to advise me from the bar table that the mother’s level of anxiety is such at the present time that the solicitor seeks to obtain specific written instructions in respect of a number of matters prior to further proceeding. 

23. The issues just referred to are, perhaps, exacerbated by the fact that the mother is absent today as a result of attending a funeral of her partner’s relation.

24. The extreme levels of anxiety being experienced by the mother are a common theme in the reports of Dr M and have also been referred to by Mr P.  Mr P gave evidence this morning that he had little doubt that the pathological conflict between these two co-parents has “filtered down” to the child. Dr M refers to a similar consideration.  Ms Y also refers to that consideration. 

25. I have little doubt that the opinions expressed, in effect, unanimously by those three experts, are correct.  I have little doubt – in fact, I have no doubt - that this young child is burdened by the ridiculous pathological conflict between her two parents.  I have no doubt it is doing her harm.

26. The father seeks to put before the court this morning a report from the child’s school that indicates that she is going well in all respects, including in respect of her social functioning. Be that as it may, I have not the slightest doubt that this young child is feeling terribly burdened by the conflict between two people who, it is plainly obvious, she loves desperately.  That those adults cannot do anything about that both saddens and perplexes me. 

27. The current application occurs in that context.  What needs to be balanced are a number of things in the child’s best interests. 

28. In the first place, Mr P makes the point, with which I respectfully agree, that a sudden cessation of, what has now been for some six months or so, very regular telephone communication between the father and the child might come, as it were, as some shock to her. Axiomatically, one would think, these parties lack the mutual capacity to allow that to occur in a way that does not burden her, at least in some respects.

29. On the other hand, it is clear that, on my current orders, and on the situation that will, pending extraordinary event, pertain until the final hearing of this matter, the mother is predominantly providing the child’s day-to-day care.  It is plain beyond doubt, on the current evidence before me, that she is suffering significant anxiety and that both these continuing proceedings and the conflict between she and the father, whoever is at fault – is creating a significant burden in respect of her care of the child. 

30. That, in my view, is also a very significant consideration in respect of the current application.

31. It seems to me, doing the best I can on an interim basis (which brings with it all of the restrictions inherent in such a process which neither the parties nor the court find satisfactory) that I should seek to achieve a balance between those matters to which I have just referred. 

32. In doing so, I note that the father spends substantial and significant time with the child and is, within a period of some weeks, to enjoy a lengthy period of block time with the child during the December/January school holidays.

33. In the context of the conflict between these two people, the anxiety of the mother and the other issues to which I have just referred, it seems to me appropriate that I reduce the telephone time provided for at paragraph 5 of the orders made by me on 27 April 2009. 

34. What I propose to do is to reduce the telephone time to one occasion in each fortnightly period as distinct from three occasions in each fortnightly period and for that period to coincide with the Wednesday time otherwise provided for in the sequence in paragraph 5 of the orders.

35. I will therefore amend paragraph 5 of the orders made by me on 27 April 2009 so as to provide that the father communicate by telephone with the child, born in August 2002, between 5.00 pm and 5.20 pm on Wednesday, 4 November 2009, and between those times on each alternate Wednesday thereafter.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  4 November 2009