YALPAT & YALPAT

[2020] FamCA 373

FAMILY COURT OF AUSTRALIA

YALPAT & YALPAT [2020] FamCA 373

FAMILY LAW – CHILDREN – Interim proceedings – where the Mother seeks that the Father’s time with the child be suspended - where the main issue for determination is in relation to changeover arrangements – best interests of the child – orders made varying changeover arrangements.

Family Law Act 1975 (Cth) ss 60CC, 66E
Child Support (Assessment) Act 1989 (Cth)

APPLICANT: Ms Yalpat

RESPONDENT: Mr Yalpat

INDEPENDENT CHILDREN’S LAWYER: Mr Robinson

FILE NUMBER: CAC 1305 of 2018

DATE DELIVERED: 18 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Jeanine Lloyd & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robinson McGuinness

Orders

1. The parties are to do all necessary things to enrol in and attend at the T Program as soon as possible.

2. The parties are to do all necessary things to enrol in and attend at a Circle of Security Parenting Course.

3. The parties are prohibited from denigrating the other party, or their partner or members of their family in the presence of the child, or from permitting a third party to do so.

4. The parties are, within 21 days, required to consult with each other, with the assistance of the Independent Children’s Lawyer, to identify an appropriate therapist to assist in their parenting of X, in particular in relation to the difficulties in transitioning X from one household to the other.

5. Order 3 of the orders of 23 August 2019 which relates to handover venue is amended as follows:

6. Unless otherwise agreed in writing, changeover of the child shall occur as follows:

   (a)       If H Group is available to the parties, at H Group; otherwise

   (i)The day care or early education facility the child is in attendance at; or

   (ii)The Suburb F Police Station; or

   (iii)McDonalds, R Street, Suburb F.

7. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents;

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

   (c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)Either of the child’s parents;

   (ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the child has been living; and

   Including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;

   (d)The capacity of:

   (i)Each of the child’s parents; and

   (ii)Any other person (including any grandparent or other relative of the child)

   to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Family Consultant thinks are relevant;

   (f)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;

   (g)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (h)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

8. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

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 Yalpat 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 CANBERRA

FILE NUMBER: CAC 1305 of 2018

Ms Yalpat

Applicant

And

Mr Yalpat

Respondent

REASONS FOR JUDGMENT

Litigation Background

1. This application centres on issues arising around changeover for X, and the Mother’s proposal that X’s time with the Father be suspended pending recommendations being received from a therapist that the Mother has started to take X to.  The parties are also in dispute regarding X’s attendance at a particular early education centre.

2. It is necessary to place the application in the context of the vigorous litigation process engaged in by the parties, the history of which has been recited in various interim judgments.

3. The proceedings regarding X commenced by an Initiating Application filed by the Mother on 5 July 2018, with interim orders made on an ex parte basis on 23 July 2018. Those orders ensured that X was not be removed from Australia by the Father who is from Country B.

4. There was an interim contested hearing on 8 February 2019.  Time was ordered between X and his Father, each Saturday and Sunday from 11 am until 2 pm and Wednesday from 5 pm to 6.30 pm. 

5. There was a further interim contested hearing on 22 March 2019.  Time was ordered between X and his Father, each Monday, Wednesday and Friday between 2 pm and 5 pm. 

6. The parties took part in a Child Inclusive Conference in June 2019 and entered into interim consent orders on 23 August 2019.  The consent orders transitioned X’s time with the Father to overnight time, in stages.  From 1 March 2020, X was to spend time with the Father; in week one on Wednesdays from 9 am to 5 pm and from 9 am on Saturday until 5pm on Sunday; and in week two from 9 am Wednesday until 9 am Thursday.

7. On 6 August 2019, the Father filed an Application in a Case as to forum.  The application was dismissed on 20 September 2019.

8. On 4 September 2019, the Father filed an Application in a Case to increase his time with X, which was heard and subsequently dismissed on 12 December 2019.

9. The current application was commenced by the Mother who filed an Application in a Case on 4 May 2020 and the Father filing a Response to an Application in a Case on 13 May 2020.  It may be observed that this application takes place in the context of the recent change for X to spend overnight time with the Father.  It may also be observed that the hostility, conflict and mistrust between the parties has been palpably high throughout this litigation process.

The issues

1. The key issues at present concern X’s behaviour around changeover transitions from being with the Father to being with the Mother.  In a case where there is little in common between the parties, there is some commonality in relation to X expressing heightened emotions at transitions from the Father to the Mother.

2. Each of the parties has taken video footage of X in a heightened emotional state.  The footage became Exhibit M2.  I have viewed the footage.  It may be broken down in the following manner:

   a)Footage taken by the Father pre handovers.  In these recordings, X displayed a degree of upset, varying from what might be described as complaining to a tantrum.  It includes X asserting that he does not want to “go”,  and that he does not want to “go to school”.  It also includes the Father telling X that he “must love his mummy” and X saying that he hates his mummy.  Troublingly, some of the footage is taken by the Father while the car appears to be on motion, driven by him, and without X being properly restrained in the car.  X’s safety outweighs the need to record his upset.  This conduct is a demonstrable shortcoming in the Father’s care for X.

   b)Footage taken by a person with the Mother (inferentially “Mr Q” the Mother’s partner) at handovers on 5 April at H Group (a professional handover venue), 15 April 2020 at a police station in the ACT and 19 April 2020 again at H Group.

   c)The 5 April footage shows extended upset of X, with an escalating degree of that upset at times.  X repeatedly says “I want dad” (the Father) with the Mother providing reassurance that he will see dad and that dad loves him.  X also says “I don’t want my mum” and “I don’t want Mr Q.”  He tells the Mother and Mr Q to “go away.”  He refers to the Mother’s home as “disgusting” and “yucky.”

   d)The 15 April footage shows varying levels of upset by X, including X hitting the Mother on the floor of the police station.  The Mother is clearly distressed at being struck.  Almost immediately on leaving the foyer of the police station X’s demeanour changes, as he calms and says that he wants to walk (rather than be carried).

   e)The 19 April footage shows X (apparently without a parent present) crying on the floor of a room and then being comforted by the Mother.

3. In summary, the footage shows X in varying stages of emotional upset, ranging from low level complaining through to extended tantrum.  These states continue for varying and extended periods.  They appear to correlate to transition from the Father to the Mother.  The most extended of the incidents shows X repeatedly complaining that he wants “dad.”

4. The seriousness of the issue is perhaps reinforced in H Group’s withdrawal of services, although that step does not speak to why it has been occurring, nor to its remedy.  Despite the distressing nature of the interactions, it is not clear that X’s behaviour is anything other than within the range of typical or correlating with his stage of development.

5. Ideally, this issue is one that would be managed on a cooperative basis by the parents.  Given the antipathy between these parents, there is limited scope for such, although it should be observed that both were recorded as reinforcing, albeit in different manners, the importance of the other to X, both agree there should be some professional involvement, and both agree to attending relevant courses. 

6. This application falls to be resolved on the best interests of X.  Those best interests are to be established within the known limitations of interim proceedings, where the Court is unable to resolve contentious factual disputes, and is to rely more heavily on non-contentious or objectively determined matters, while giving heed to risks arising on even contentious evidence.

7. Those best interests are to be determined by reference to the considerations contained at s 60CC of the Family Law Act 1975 (Cth).   Of those considerations, the benefits of meaningful relationship with a parent, the nature of the relationship X has with his parents, each parent’s capacity, X’s characteristics, X’s views (limited due to his age) and the impact of change appear to be those of the greatest significance, albeit concentrated across a limited range of factual matters in the current contest.

8. While X’s behaviour at handover is troubling, the troubling nature of the conduct does not point to the solution proposed by the Mother, being the suspension of time until a third party professional recommends otherwise.  The suspension of time carries the risk of adverse impact on X.  Even though the Mother says that he has settled over the short period of time that he has not been spending time with his Father, sudden suspension carries risks connected to rendering the developing relationship with the Father unstable.  Such instability carries with it risks related to how X perceives such instability.  Does it mean, for example, that the Father does not want to spend time with him?  Does it mean that the Father is unreliable and cannot be trusted?  Does it mean that the Mother is stopping him from seeing the Father?  While X’s calling for dad attracts little weight in terms of a view, it speaks to the importance of the developing relationship for X.

9. The circumstances do not call for the suspension of time.

10. However, given the collapse of H Group as a current option, it is necessary to put into place other options for handover.  Ideally, the handover would occur at the early childhood education centre, to separate the transition between the parents.  The timing of handovers does not sit comfortably with such an arrangement.  If H Group becomes available again, it should remain an option.  Otherwise, the unsatisfactory options of a police station or other public place such as McDonalds remain the options of last resort.

11. The case calls for professional intervention, to assist the parties to support X.  While there is attraction to the ongoing involvement of Ms S given that she has already spent time with X, a necessary ingredient for intervention to work is for both parents to trust the person and process.  The Mother’s interactions with Ms S, in the face of objection from the Father, mean that she cannot simply be imposed as an option.  In fact, the imposition of a particular person is not supported by the evidence.  Under those circumstances, the best option, where the parties both accept the need for some professional assistance, is for the ICL to assist the parties to identify an appropriate person.

12. The Mother sought orders in respect of enrolment in and payment for a single early childhood education centre.  The parties appeared to accept the desirability of a single institution for X to attend.  In the absence of an order in relation to parental responsibility, the Mother is at liberty to enrol X should she choose to.  Otherwise there is insufficient information for me to determine that it is in X’s best interests to enrol him.

13. The application for the parties to share the cost of the early childhood education centre appears to be a child maintenance order. Section 66E prohibits the Court making such an order where an application could be made under the Child Support (Assessment) Act 1989 (Cth).

14. In relation to other orders sought:

    a)The parties agree to orders that they attend the T Program and Circle of Security parenting courses;

    b)The Mother seeks a non-denigration order and one should be made to reinforce to the parties the importance of the manner in which they interact with X in relation to the other parent;

    c)While a restraint as to filming X around changeover is sought, sufficient reason to grant injunctive relief (by reason of impact upon X) in relation to this aspect has not been established;  

    d)While the Father sought a change in the arrangements for time, he has not provided evidence to demonstrate that such is in X’s best interests at this stage;

    e)The injunction sought by the Father that the parties “do all things necessary to have the child as calm and settled as possible” and only remain for a maximum of ten minutes in the changeover venue is, in the first aspect too vague to be capable of enforcement, and in the second case, may not be of benefit to X, depending on the circumstance of the occasion; and

    f)The injunction sought by the Mother to compel the Father to attend upon X’s medical practitioner has not been established to be necessary.

Conclusion

1. Orders will be made to support the arrangements under the present orders, allowing other venues for handover to take place.  Orders will also be made in relation to the parties’ attendance at the T Program and Circle of Security programmes.  A non-denigration order will be made.

2. Orders will also be made for the preparation of a Family Report in order to further progress the matter to determine what is in X’s best interests.

3. The parties will also be required to consult with each other, with the assistance of the Independent Children’s Lawyer, to identify an appropriate therapist to assist in their parenting of X, in particular in relation to the difficulties in transitioning X from one household to the other.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 May 2020.

Associate: 

Date:  18 May 2020