Webster & Cody

[2012] FamCA 157

FAMILY COURT OF AUSTRALIA

WEBSTER & CODY [2012] FamCA 157

FAMILY LAW - CHILDREN – Application by father for children to relocate to the United States will be dismissed – Where, in that event, parties agree that father will spend time with the children in Australia during forthcoming Easter school holidays - Where the conditions for Easter school holidays not agreed - Orders for children to spend time with father at Easter – Where judgment on remaining issues reserved.

APPLICANT: Mr Webster

RESPONDENT: Ms Cody

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1571 of 2010

DATE DELIVERED: 20 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13-17 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Meyer Partners

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: York Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Pending further order

1. That Mr Webster (“the father”), Ms Cody (“the mother”) and children forthwith attend upon a family therapist as recommended by the Independent Children’s Lawyer.

2. That the child, T attends on a child analyst as recommended by Dr W.

3. During the end of Term 1 2012 school holidays in Australia, for not less than one week in Sydney, from 9.00 am until 6.00 pm on each day with the father to collect the children from the mother’s home at the start of each day and return to the children to the mother’s home at the end of each day; such week to be as agreed but if not agreed, from 7 April 2012 until 14 April 2012 inclusive.

4. In the event that the children, or either of them, ask to stay overnight with the father or remain later than 6.00 pm, upon notification to the mother, they may do so.

5. A copy of these orders, any reasons for judgment, the affidavit of Ms G sworn 2 February 2012 and the report of Dr W dated 12 December 2011 (as amended by the Court by order of 5 March 2012) be released to the family therapist and to T’s child analyst.

6. That the Independent Children’s Lawyer be at liberty to speak to the family therapist and T’s child analyst.

7. 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 by this Court under the pseudonym Webster & Cody has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1571 of 2010

Mr Webster

Applicant

And

Ms Cody

Respondent

REASONS FOR JUDGMENT

1. Last month I heard competing applications for parenting orders in relation to the parties’ two children, T and L.  The children live in Australia with Ms Cody who is their mother (“the mother”).  The children’s father, Mr Webster (“the father”) lives in the United States.  Pursuant to orders made by the High Court of the United Kingdom in 2002, where the family lived, the mother and children moved to Australia after which the children were to spend three periods of up to three weeks with the father annually, two of which are to take place in the United States or Europe and the other, at his election, either in Australia or abroad.

2. Both parties propose that the children’s circumstances and current orders are changed.  Summarised it is the father’s proposal that the children primarily live with him in the United States (from April 2012) and failing that, a stepped arrangement which will result in the children spending block periods there.  According to the mother (and the Independent Children’s Lawyer (“ICL”)) the father’s primary application should be dismissed and interim orders made which, in essence, provide for the father to spend time with the children during 2012 in Australia and for a longer period during the 2012/2013 Christmas school holidays in the United States. 

3. It is common ground that in the event that the father’s primary application fails, he will spend time with the children in Australia during the looming Easter school holidays, the parameters for which are contentious.  Time constraints have made it impossible to finalise my deliberations in relation to the entire proceedings within sufficient time to enable the parties to implement whatever arrangements are required for April/Easter 2012.  Thus, these reasons will address the forthcoming period and further reasons and orders will be delivered in relation to the balance of matters.    

4. By way of background, it is agreed that the children last spent time with the father in the United States (or Europe) between 28 December 2007 and 3 January 2008.  Although a longer trip was planned, the children, particularly T, became distressed and in response to the father’s request she does so, the mother travelled to New York and collected the children early.  Since then, the father’s requests that the children spend time with him in the United States have been refused.

5. Reliant upon advice the parties jointly obtained from a child and adolescent psychiatrist (Dr P) the mother encouraged the father to visit the children in Australia, albeit, upon conditions not imposed by the 2002 orders and maintained her stance against them seeing him in the United States.  Thus, he spent time with the children in Australia in early December 2008 and again in early November 2009. 

6. By that time there was serious disagreement about child maintenance and whether orders made in the United Kingdom required the father to pay the children’s school fees if, contrary to his input, the mother enrolled the children at different schools.  In what would appear to be a tit-for-tat response to the mother’s unilateral decision about the children’s school, inter alia, the father unilaterally suspended and then altered the amount of child maintenance he paid.  In response, the mother registered the child maintenance orders with the Child Support Agency who, on 13 April 2010, issued a Departure Prohibition Order against the father.  The effect of this order was that he would be prevented from leaving Australia until it was discharged.  This meant that in order to see the children the father was required to either discharge the child support arrears and consequently the Departure Prohibition Order or, see them in Australia but be restrained from returning to his wife, child and life in the United States.  Attempts by him to broker an alternate outcome with the Child Support Agency were unfruitful and not supported by the mother.

7. Thus, contact between the children and father, other than the occasional email, effectively and regrettably came to an end.

8. In anticipation of this hearing Dr W was appointed as a single expert to investigate and report upon the parties and children.  Having paid approximately $227,000.00 as security to the Child Support Agency, in September 2011, a Departure Authorisation Certificate issued to the father.  The certificate enabled him to depart Australia between 23 and 30 September 2011 and to return no later than 13 February 2012.  Thus, the father came to Australia where he was interviewed by Dr W and briefly spent time with the children.  In addition, he visited the children’s schools where he was advised about their progress.

9. Dr W, at the father’s expense, travelled to the United States where he conducted further interviews and, as he had with the mother, observed the father and his family at home. 

10. On 12 December 2011, Dr W’s lengthy report was released to the parties and ICL.  In relation to disposition of the proceedings, he made the following recommendations:

    1.That the father’s Application for the children to live in [the United States] not be supported.

    2.That the mother’s Application for the children to live with her be supported.

    3.That the children be appraised of the Orders that the mother is seeking in relation to the father having contact; so that they are clear that these have not been imposed on them by the father and that these are her expressed wishes.

    4.That the proposals that the mother seeks for graduated contact between the children and their father are supported in the terms she has outlined.   In addition, it would be helpful for [the father] and the children to attend on a family therapist at these times so that [the father] can learn to listen to his children and modify his reactions to them.

    5.That when a reasonable period of time has elapsed after the Judgment has been handed down that [T] be re-assessed by a Child and Family Psychiatrist who is given a copy of this report.  

    6.That if this person deems it appropriate, that [the mother] be involved with a second therapist nominated by [T’s] therapist to help her examine her contribution to [T’s] anxiety. (Dr W’s report, 12 December 2011, p 107)

11. In support of his opinion that the children continue to live with the mother in Australia, Dr W emphasised that significant weight should be attached to the children’s views that they want to live in Australia with their mother.  He regarded as important that on the last occasion that the children visited the father in the United States both became anxious; in T’s case overwhelmingly so.  T is assessed as a child who is vulnerable to recurrent depression, which predominantly relates to his sense of responsibility towards his mother.  The reason why this is likely to be so will be discussed in my subsequent reasons.  It is sufficient to record at this time that it is Dr W’s opinion that this is not “…sufficiently serious to remove him from a mostly secure environment where there is evidence he is thriving in many areas of his development” (p 105).  In this regard, there is an abundance of evidence that T excels academically and is extremely well settled at S School.

12. L who was not as negative or fixed in her views about the father as T, was assessed as strongly attached to the mother and, in effect, disconnected from the father. 

13. Both children were assessed as highly likely to be traumatised at removal from their lives in Australia and being no longer primarily resident with the mother. 

14. In relation to the father and his wife, Ms J, Dr W said they underestimated how much the children needed and valued their mother.  In circumstances where the children do not have a secure emotional base with the father, relocation to the United States was likely to result in them becoming “even more alienated from their father”, as well as feeling “shocked, betrayed, anxious and depressed) (p 100).  In the father’s primary care, both in the short and long term, according to Dr W these strong feelings and adverse consequences would not be met.  While I essentially agree with this later point, it does not necessarily follow that this results from any deficiency in the father’s parenting capacity.  Putting that issue aside, there is no doubt that the father’s primary application involves dramatic upheaval to every aspect of the children’s lives.  Because these changes would be imposed contrary to these mature and intelligent children’s strong opinions, the very circumstances would result in the shock, betrayal, anxiety and feeling depressed being unresolved in both the short and long term.

15. Subjected to strong cross-examination, particularly by counsel for the father, Dr W’s views expressed in his report were maintained in his oral evidence.  For reasons I will later explain, notwithstanding that there are components of Dr W’s assessments of the adults which are not fully accepted, his opinion and the preponderance of evidence will result in the father’s primary application being refused. 

16. It follows, that orders will not be made for the children to move to the United States in April 2012 and that the parties’ agreement that the father visit the children in Australia at Easter and for the commencement of therapy will be implemented.  It is because I consider it is important that they and the therapist(s) know the manner in which the primary issue will be determined that this matter is revealed now.

17. In relation to the forthcoming Easter school holidays, the mother and ICL propose that the father spend two weeks in Australia.  Whilst here, that the children spend time with him every day between 9.00 am and 6.00 pm and overnight if they want to and that he participates in family therapy. 

18. It is the father’s proposal that he have one week with the children at times agreed, or failing agreement from 7 April 2012 until 14 April 2012.  During that period, he would spend time with the children from 9.00 am until 8.00 pm daily and, in accordance with the mother and ICL’s approach, he is happy to have the children overnight if they request this.  He says he will participate in family therapy.

19. Dr W opined that two weeks would be more beneficial to the children and to lay the foundation towards restoring and improving their relationships with the father.  Nonetheless, in an attempt to find a way forward, he did not contend that there would be little value in the shorter period. 

20. It is agreed that family therapy will commence with a therapist recommended by the ICL.  A variety of people have been suggested and I am satisfied that therapy can commence while the father is in Australia.  In addition, it is agreed that T will commence therapy with Ms A, who is a child analyst.  In the event she is unavailable Dr W will recommend someone else.  So that it is clear, T will not recommence therapy with Ms G.  Dr W’s evidence that therapy for and with adolescents is challenging and often children of that age find it difficult to connect and accept therapeutic intervention, is accepted.  From T’s discussions with Dr W it is apparent that he would not happily return to Ms G and, as a consequence, the prospects of constructive therapeutic intervention in that setting are limited.

21. The father is unable to commit to two consecutive weeks in Australia in April 2012.  He is self-employed and, although this might suggest he is a free agent, the reality of his professional life is that he is anything but.  In addition, his wife is pregnant and they have a 5½ year old son (“R”).  Ms Webster is employed in the finance industry in a senior capacity, which, when combined with her pregnancy, parenting responsibilities and recent trip to Australia for this hearing, means that she is unable to again travel in April 2012.  When these factors are combined, I accept that the father is unable to spend two weeks in Australia at Easter 2012 and that his inability to do so does not demonstrate a lack of commitment by him to the children.

22. In Australia, the father will obtain rented accommodation where, if the children decide to stay overnight, they will be comfortably accommodated.

23. In relation to whether the father’s time finishes at 6.00 pm or 8.00 pm, there is little to distinguish the two options.  According to Dr W, both children need time with the father in Australia engaged in activities that they enjoy.  Logic suggests that the longer the period the easier it will be to achieve this.  However, T in particular has been quite vocal in his opposition to spending time with the father and both children are likely to have mixed feelings about doing so.  Of course, for the first time in a long time, the children’s parents are united in agreement that contact take place and the key components in the circumstances under which this would happen.  While this will make it easier for the children, their feelings are likely to remain mixed.

24. It is important that April 2012 is overall a positive first step.  On balance, rather than a possibly overambitious period which might detract from the relationship benefits for the children and father, the period recommended by the ICL will be adopted.  That said, this is on the basis that the mother will co-operate with the children having longer periods with the father if they want to.

25. Because I accept the father’s evidence that he will participate in family therapy, I will not make his doing so a condition for spending time with the children.  An order will be made for release of Dr W’s and Ms G’s reports and these reasons to the family and T’s therapists.

26. For these reasons, I am satisfied the orders are in the children’s best interests.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 March 2012.

Associate:     

Date:              20 March 2012