Wing and Low and Anor (No 2)

[2009] FamCA 1373

FAMILY COURT OF AUSTRALIA

WING & LOW AND ANOR (NO. 2) [2009] FamCA 1373

FAMILY LAW – CHILDREN – application of mother to spend more time with child – child resides primarily with paternal grandmother – conflict between parties – inappropriate influence and manipulation of child by grandmother – orders in terms of proposal of ICL

Family Law Act 1975 (Cth)

APPLICANT: Ms Wing

THE FIRST RESPONDENT: Mr Low

THE SECOND RESPONDENT Ms Lor

INDEPENDENT CHILDREN’S LAWYER: Ashley Kent

FILE NUMBER: ADC 1937 of 2009

DATE DELIVERED: 10 SEPTEMBER 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: STRICKLAND J

HEARING DATE: 10 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Clelands

COUNSEL FOR THE 1^ST RESPONDENT: Mr Cheng

SOLICITOR FOR THE 1^ST RESPONDENT: Gordon Cheng Barristers

COUNSEL FOR THE 2^ND RESPONDENT Mrs West

SOLICITOR FOR THE 2^ND RESPONDENT: Adelaide Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ashley Kent LSC

Orders

1. That paragraph 3 of the order of Cole FM made on 25 May 2009 be discharged.

2. That UNTIL FURTHER ORDER the child … born … September 2002 spend time with the mother as follows:

   a.   from the conclusion of school on Friday 11 September 2009 until 7:00pm on Saturday 12 September 2009 and during the same time on each alternate weekend thereafter until 13 November 2009;

   b.   from 4:00pm on Saturday 19 September 2009 until 5:00pm on Sunday 20 September 2009 and during the same time on each alternate weekend thereafter until 13 November 2009;

   c.   from the conclusion of school on Friday 13 November 2009 until 5:00pm on Sunday 15 November 2009 and during the same period of time in each weekend thereafter.

3. That the mother and the paternal grandmother be restrained and an injunction is granted restraining each of them from discussing these proceedings with the said child and from permitting any other person to discuss these proceedings with the said child.

4. That the application in a Case filed by the mother on 10 August 2009 be dismissed and removed from the active pending cases list.

5. That further consideration of paragraph 3 of the Response filed by the paternal grandmother on 4 September 2009 be adjourned to 9:30am on 22 September 2009 before Registrar Paxton.

6. That paragraphs 1, 2, 4 and 5 of the said Response be dismissed and removed from the active pending cases list.

7. That the Response filed by the father on 8 September 2009 be dismissed and removed from the active pending cases list.

8. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1937 of 2009

MS WING

Applicant

And

MR LOW

1^st Respondent

MS LOR

2^nd Respondent

EX TEMPORE REASONS

1. This is a difficult and complicated matter. Today I have before me an Application in a Case filed by the wife on 10 August 2009 seeking that the existing orders which provide for the child, the subject of these proceedings, to spend time with her be discharged and new orders put in place which, in effect, provide for there to be a week and week about arrangement.  That is an application which is opposed by both respondents, that is the husband and the paternal grandmother. 

2. Both respondents have filed responses to the wife’s application.  They both seek though – this was the point I was going to make – they both seek that the application be dismissed. 

3. I am told today by Mrs West, who appears for the second respondent, that there is an alternative proposal that her client puts and that is that there be a variation to the existing order such that the child spend time with the mother from 9:00am to 7:00pm on each Saturday and Sunday.  That clearly increases the time that is currently provided under the order made by Cole FM on 25 May 2009. 

4. Mr Cheng, for the first respondent, has not addressed me specifically on that topic. He has provided to me a six page document, setting out written submissions.  It may be that in those submissions something is said about this but be that as it may, I have not had the opportunity to read those submissions.  I have been directed to some particular paragraphs, which I have read but as I understand the first respondent’s position he is, at this stage at least, completely supportive of the position of his mother, the second respondent, and indeed, in his final orders response, he seeks precisely the same orders that the second respondent seeks.

5. Thus I proceed on the basis that the first respondent is supportive of the proposal that the second respondent makes through her counsel today.  Importantly, Mr Bowler, who appears for the Independent Children’s Lawyer, has put to me that there should be an increase in the time spent but it should be not as great as the wife seeks, nor as limited as the respondents suggests. 

6. Mr Bowler’s instructions are to adopt the recommendations of the Family Consultant, Dr B, emanating from her report of 2 September 2009, and in particular that there be an increase such that for the next two months on one weekend there be time spent from Friday night to Saturday night, on the next weekend time spent from Saturday night to Sunday  night and then after a period of two months that that alter to time spent from Friday night to Sunday night on each weekend, and that then continue up until the trial of this matter, subject obviously to any further reports or further evidence being brought forward.

7. The wife’s case is put on the basis that there is no evidence, or no evidence that I should accept, that she, the wife, cannot properly care for this child on a week and week about basis.  Her counsel points to, and relies very heavily on, the report of Dr B in relation to Dr B’s assessment that the child is very much subject to the influence of his grandmother, with whom he lives, and that the complaints that he has made and which the grandmother relies upon must be seen and viewed in that context, namely in the context of influence and manipulation. 

8. Of course this case is not determined by what the Family Consultant might say but at the level that this case is being heard, namely on an interim basis where I have affidavits before me, I have not heard any oral evidence, there has been no cross-examination, there has been no testing of each party’s facts presented in affidavit material, nor any testing of the Family Consultant’s view, that creates severe limitations and restrictions on how I can proceed today.

9. That said, in a situation like this it is always open to me to look at what independent evidence there is and that independent evidence comes of course from the Family Consultant.  Thus I consider that I can proceed on the basis of the assessment of the Family Consultant and her recommendations.  That is added to by the fact that the Independent Children’s Lawyer, who has a very special position in a case like this, supports and adopts the assessment and recommendations made by the Family Consultant.

10. However, given that I have concerns as to what is happening in the household of the grandmother in terms of influence and pressure and manipulation of this young child in relation to his mother, Mr Bowler’s submission and which emanates also from the report is that equally there would be difficulties for this child to introduce a dramatic increase to the time that he spends with his mother, given the history of the matter, given that the child has not spent overnight, for example, with the mother for some time nor significant periods of time.

11. Mr Bowler’s submission is that as much as the grandmother’s position has difficulties with it, so does the mother’s, and that the Independent Children’s Lawyer promotes an approach which allows for a gradual increase of time to be spent between mother and child.  The background to this case cannot be overlooked and the background is that the mother is currently in Australia on an extended visa, which at this stage expires at the end of this year.  There is a prospect of her extending that visa to enable these proceedings to be concluded and in my view, as I have said, I would think that she has got every prospect of being able to do that.

12. There is a very real dispute at this stage as to where this child ultimately will live.  The wife’s primary position is that she wants to return to China, take the child with her, and live there with the child.  The grandmother’s position is that she opposes that, and she wants the child to remain with her in Australia and then spend time with the mother in China, if that is where she is, or in Australia if that is where she is able to be. If it is in China it would be limited, necessarily to, for example, school holiday time. Thus I cannot lose sight of the background of the matter and the final respective orders applications that have been made.

13. This court is doing everything it can to give priority to this case and have the matter disposed of in the earliest possible timeframe, given the circumstances of the mother having at this stage to leave Australia by the end of December, subject to her visa being extended.  I note of course, and this was a submission put to me on the last occasion, that the paternal grandmother and the husband are suspicious of the wife’s motives in terms of the orders that she seeks in this court.  The suspicion relates to the thought that what the mother’s interests are are not the child but to be able to stay in Australia.

14. Now, that is a suspicion, there is no evidence that I have been referred to which would establish that as fact and I am not in a position to make any finding about that today.  Thus there are a number of twists and turns, and issues in the background to this matter which will ultimately need to be taken into account when the final hearing takes place.  All I can deal with is the material that is before me, and look to find independent evidence, as I say, and that comes from the Family Consultant and the Independent Children’s Lawyer.

15. Now, I am obliged to deal with this matter in the way that the Full Court tells me.  However, I do not propose to go through seriatim the road map which the Full Court has set out for the hearing of interim cases.  I say that I take into account what the Full Court requires me to and the issues and the factors that I am obliged to take into account.  The bottom line though, as far as I am concerned is, as in any children’s matter, looking to what is in the best interests of this child and doing the best I can on the information that I have and the evidence that I have before me, bearing in mind this is an interim hearing, it is not intended to be a permanent order and indeed it is hoped that the final hearing can take place before the end of the year.

16. I should also mention that, during the course of submissions, I challenged the counsel for the paternal grandmother in relation to her position and her opposition to overnight time.  Frankly, her position in my view is illogical and given the orders that she is prepared to agree to and also the ultimate orders that she is prepared to agree to, I fail to see how anything that the paternal grandmother has put to me should limit this child spending overnight time with his mother.   However, I am not convinced that it is appropriate to move immediately to week and week about. 

17. I consider that the submissions made by Mr Bowler have sense and logic to them, and given the hostility that exists and given the fact that there is a strong suggestion of influence by the grandmother, I would be concerned about the impact upon the child of making a dramatic change to his current circumstances and what reaction there would be to that in the grandmother’s household.

18. I do not want to put this child in a position of any more distress than he already obviously is, namely being in the middle of warring factions who cannot at this stage, put aside their differences and their feelings about each other and concentrate on what is in the best interests of this little boy.  He is a defenceless victim in these proceedings and he needs his interests put ahead of all else and that is what I propose to do.

19. However, I cannot look over his shoulder.  I cannot put someone in the respective households of the mother or the grandmother.  It would be nice if I could but that cannot happen.  I have to look to both sides, as I say, realising that it is the future of this little boy which is at stake and thus for my part, the only order I am prepared to make today is in terms of the proposal of the Independent Children’s Lawyer.

I certify that the preceding 19 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 10 September 2009.

Associate