Worth and Worth (No 4)

[2016] FamCA 1144

FAMILY COURT OF AUSTRALIA

WORTH & WORTH (NO 4) [2016] FamCA 1144

FAMILY LAW – CHILDREN – Whether the two children should spend time with the father during his stay in Australia  - Where the father has returned to Australia from the UK for a case – management hearing in this Court – Where the father has been absent for ten months  – Where the son has autism on the extreme end of the spectrum – Where it is not in the son’s best interests to spend time with his father in the circumstances – Where it is in the daughter’s best interests to spend a small amount of time with the father and paternal grandmother during the father’s time in Australia – Where the father is permitted to Skype the daughter while he is outside the Commonwealth of Australia.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Worth

RESPONDENT: Ms Worth

INDEPENDENT CHILDREN’S LAWYER: Janelle Osborne

FILE NUMBER: BRC 1771 of 2014

DATE DELIVERED: 27 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 September 2016

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Mr Rosen

Rosen Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Osborne

Legal Aid Queensland

Orders

1. That the competing parenting and property adjustment orders applications of the parties be listed for trial before his Honour Justice Forrest over eight (8) days commencing at 10.00 am on Monday, 20 March 2017 and concluding on Wednesday, 29 March 2017.

2. That each of the mother and the father have leave to file and serve one further updating affidavit of evidence in chief, limited to no more than 20 pages, by close of business on Tuesday, 31 January 2017. 

3. That the Independent Children's Lawyer has leave to cause subpoena to issue to Dr A, psychiatrist, and Dr D, psychiatrist, for the production of documents and to appear at the trial to give oral evidence.

4. That the Independent Children's Lawyer has leave to file and serve an affidavit from any of the children’s treating medical and educational professionals  that she intends to rely upon, if she is able to obtain such affidavits, by close of business on Friday, 13 January 2017 and in the event she is unable to obtain such affidavit she is given leave to cause subpoena to issue out of the Court directed at such persons requiring them to produce documents and appear to give oral evidence at the trial.  The Independent Children's Lawyer shall immediately notify each of the other parties as to the identity of any such witness she subpoenas to give evidence at the trial.

5. That an updated Family Report be prepared by the Family Consultant Ms E under s 62G(2) of the Family Law Act 1975 (Cth) and for the purposes of completing this updated Family Report, Ms E has permission to inspect the Court file and all documents which have been produced under subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

6. That for the purposes of the preparation of the updated Family Report by Ms E the parties shall attend upon her at times and dates as advised by her and the mother shall facilitate the attendance of the children at such appointments with Ms E at times and dates as Ms E may advise.

7. That the updated Family Report is to be filed and served by close of business on Friday, 24 February 2017.

8. That any affidavits of evidence in chief by Dr S, paediatrician, and Dr F that are to be relied upon by the father at the trial shall be filed and served by close of business on Tuesday, 31 January 2017.

9. That any other affidavits of evidence in chief by any other witness that are intended to be relied upon by the father at the trial shall be filed and served by close of business on Tuesday, 31 January 2017.

10. That the father has leave to cause subpoena to issue from the Court directed at Dr S, Dr F, Ms G, Ms H and Ms I, requiring them to produce documents and/or to attend at the trial to give oral evidence.

11. That each of the parties, including the Independent Children's Lawyer, shall file and serve by close of business on Friday, 10 March 2017 a document setting out all of the parenting orders that each contends the Court should make at the end of the trial, and in respect of the mother and the father, also all of the property adjustment orders each contend the Court should make at the end of the trial.

12. That each of the mother and the father file and serve by close of business on Tuesday, 31 January 2017 a superannuation information form or such document providing updated valuations, as at a date as close to that date as possible, from each of the superannuation funds in which they have superannuation interests, be it in the Commonwealth of Australia or the United Kingdom.

13. That should the parties have reached agreement on the value to be attributed to the two motor vehicles and household possessions in the mother’s possession and the household possessions in the father’s possession by close of business on Tuesday, 31 January 2017, they shall cause a single document reflecting that agreement to be filed in the proceedings.  In the event that they cannot reach such an agreement, then each shall have filed and served by that same date any evidence upon which they rely to establish the value that they contend for.

14. That by close of business on Friday, 10 March 2017 each of the parties shall file and serve a list of the affidavits upon which each intends to rely at the trial and no affidavit shall be allowed to be relied upon at the trial that has not been filed and served in accordance with any directions made by this Court without the further leave of the Court first obtained.

15. That on that same list of affidavits each party intends to rely upon, each party shall list the names and professional identity of any witness who has been subpoenaed to give evidence by them who has not provided an affidavit.

16. That any documents the Independent Children's Lawyer and the mother are serving on the father by way of service at his Court registered address for service shall also be forwarded by each of them to the father at his email address: …and the father shall acknowledge receipt of such documents by return email or the automatic receipt facility on the email program.

17. Noting that the Court is likely to be assisted by an updated psychiatric assessment carried out by Dr J, the Independent Children’s Lawyer shall file and serve such an updated report should she be able to obtain funding for same by close of business Friday, 24 February 2017.

18. That any previous parenting order providing for the child, Y born … 2011, (“the child”) to spend time with the father shall continue to be suspended whilst he remains out of the Commonwealth of Australia, but that in particular while he is in Australia this week until Saturday 1 October 2016, the child Y shall spend time with the father for two (2) hours with such time to be spent with him from 9.00 am on Friday, 30 September until 11.00 am that same day, with handovers of the child to the father and from the father to be effected on behalf of the mother by the maternal grandmother, with such handovers to take place outside the front entrance to the L Shopping Centre, in the northern suburbs of Brisbane.  For clarity, the father’s mother is permitted to accompany the father and spend that same two hours with the child.

19. That during the time that the child spends with the father on Friday, 30 September 2016, the father shall not discuss with the child anything about these Court proceedings or anything about an issue of alleged sexual abuse raised by the father earlier this year or anything with a view to eliciting information from her about such matters, nor will he permit his mother to engage in any such conversation with the child.

20. That whilst ever the father is outside the Commonwealth of Australia, the child shall communicate with him, and any other member of his extended family who he consents to participate in such call, each Wednesday and Saturday between the hours of 6.00 pm and 7.00 pm Queensland time and such Skype calls shall last as long as the child is engaged in communication with the father on each such call, up to a maximum of an half an hour on each such call, with the father to initiate each such call and the mother to facilitate each such call at the Australian end and to provide the child with reasonable privacy during each such call.

21. The father is restrained from discussing these proceedings in any way with the child, discussing any issues relating to allegations of sexual abuse with the child. or asking her any questions seeking to elicit information or answers relating to matters of alleged sexual abuse, during such Skype calls.

22. That any further Application in a Case to be made by the father shall be filed and served by close of business on Friday, 28 October 2016 with any such Application in a Case to be brought to the attention of his Honour Justice Forrest for listing consideration as soon as practicable after it is filed.

23. To the extent that it has not already been ordered, each of the parties and their legal representatives have leave to inspect any material produced under subpoena to this point in time, and each of the mother and the father through their legal representatives, or if the father no longer has legal representation, then the father, is entitled to cause photocopies to be taken of any of the documents produced under subpoena to this point in time that they require in preparation for the trial.

24. That the father’s Contravention Application filed 7 September 2016 be listed for mention at 10.00 am on Monday, 20 March 2017.

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 Worth & Worth (No 4) 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 BRISBANE

FILE NUMBER: BRC 1771 of 2014

Mr Worth

Applicant

And

Ms Worth

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The substantive proceedings between the applicant and respondent in this matter involve competing parenting applications and competing property adjustment applications.  I was reminded this morning that the matter has been before the courts with Family Law Act  jurisdiction since 2013 without final resolution of the dispute between the parties. 

2. Whilst it is somewhat difficult to understand why it has taken so long to finalise, what is not difficult to understand or comprehend from the limited involvement that I have had in the matter to date, is that this is an extremely high conflict case where the parties are, notwithstanding having been married for over nine years at some time in the not too distant past, in the most extreme and significant conflict that people who were formally married to each other could be in. 

3. At the heart of such conflict lie two children who are not without their own health difficulties completely separate and distinct from the difficulties that they also face in life having regard to the extreme conflict existing between their two parents which is impacting significantly on their lives and their relationships with each of their parents. 

4. The matter has come before me today for trial directions and management and I have listed it for an eight day trial in March, 2017.  There are existing parenting orders in place that provide for the respondent father to have his two children spend some reasonably limited amount of time with him. Those orders were made some time in the second half of last year and made with some degree of particularity around a graduation of the time that his five and a half year old daughter, Y, would spend with him graduating from some two hours over time, up to time when she was spending overnights and multiple days in his care.  Clearly those orders were made with a view to reintroduce the child to her father over a period of time so that she would feel comfortable spending time in his care such as ultimately provided for.

5. The older child, M, who is eight years old, is a child who suffers autism at what is said to be at the fairly extreme end of the autistic spectrum.  Things are somewhat more complicated in respect of the time that he can spend in his father’s care.  The existing extant orders provide for M to have a limited period of time with his father, for it to take place for a couple of hours at the special school that M attends and with the supervision of someone from the administration of that school, as I understand the order. 

6. All of these things became far more complicated when the father left Australia late last year and returned to live in the United Kingdom.  The matter was before me some time towards the end of last year where I was asked to deal with the parenting orders on an interim basis having regard to the fact that (a) it was said that the mother was contravening the existing orders and not letting the children spend time with the father; and (b) the father had indeed removed himself from the ability to have physical time with his children in any event, having left Australia and returned to the UK. 

7. However, that said, I was informed, and the determination that was made then was based on information that the father would be returning to Australia at the end of January, so orders were made that provided for a suspension of the existing orders at least for the time that he was away until he got back at the end of January.

8. Rather unfortunately, for the children particularly and no doubt for the father, he did not return to Australia at the end of January and has only just returned earlier this week. Now we are at the end of September, and the father has returned to Australia for the first time.  Accordingly the children have not spent any time in his care and immediate company since he left Australia last year and went to the UK.  He has come out for a week principally to attend here at the Court and deal with this trial management event, and in doing so stands to his feet and effectively makes oral application for an order that he able to at least spend some time with his children in this week. 

9. I determined that it was appropriate to entertain the application, particularly after having heard submissions from the Independent Children’s Lawyer that I should entertain the application and consider making orders that provided for the child, the child, to spend some small amount of time with the father whilst he is here, particularly having regard to the nature of the orders that were in place and that have not been able to be activated because of the father’s absence from the country. 

10. I was also asked by the father to make orders with respect to the child, M.  I quickly determined and informed him that that was not going to happen because we are currently on school holidays and the existing orders only provide for M to spend time with the father at school with school administrative staff around.  That cannot happen this week as he is not at school and so I am not satisfied on the brief amount of information that I have that it is in M’s best interests to make any change at all where the father has been absent for ten months.  I am conscious of what I have already said – that the child is on the extreme end of the autistic spectrum - and I am satisfied that a change in the circumstances such that would require him to spend some time with his father now in circumstances different from those provided for in the existing orders would not be in his interests and I will not do make any such change. 

11. However, notwithstanding having heard from Mr Rosen on behalf of the mother that the mother contends that it is not in the child’s interests to spend any time with her father at this point in time, in circumstance such as those proposed by the father, I am not persuaded that that is the case and am persuaded that a small amount of time with her father might very well indeed be a good thing for her in the circumstances. I have particular regard to the matters set out in s 60CC(3) of the Family Law Act and particularly the matters set out in s 60CC that set out that the benefit to a child of having a meaningful relationship with each of its parents is a factor to consider seriously in respect of the orders that are made. 

12. I am also asked by the father to make an order that formally reinstates Skype communication between him and the child. On 16 November 2015, I made an order that whilst the father was in the UK and the existing extant parenting orders for the child to spend time with him were suspended, that he could have Skype communication with her each Wednesday and Saturday between the hours of 6.00 pm and 7.00 pm Easter standard time, which is Queensland time. 

13. I have learned that such communication occurred until around March this year when it was stopped by the mother after the father made allegations that the child had made disclosures pertaining to allegations of sexual abuse.  The mother, of course, says these are false allegations and improperly involved the child in a subject that was not in her best interests and she therefore unilaterally determined to suspend such communication. 

14. I have heard submissions from both sides and from the Independent Children’s Lawyer.  I am satisfied that indeed the child ought to have the opportunity to communicate by Skype with her father as she previously did, provided he does not raise any of these issues relating to alleged sexual abuse with her and I will order accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 September 2016.

Associate: 

Date:  20 January 2017