ZILLER & FOSTER

[2015] FamCA 461

FAMILY COURT OF AUSTRALIA

ZILLER & FOSTER [2015] FamCA 461

FAMILY LAW – CHILDREN – interim - sole parental responsibility – best interests - where supervised time ordered for one child – where no order for spending time in regard to other children – where trial remains part-heard.

Family Law Act 1975 (Cth)

APPLICANT: Ms Ziller

RESPONDENT: Mr Foster

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 1052 of 2011

DATE DELIVERED: 10 June 2015

PLACE DELIVERED: F Town

PLACE HEARD: F Town

JUDGMENT OF: Tree J

HEARING DATE: 23, 24, 25, 26 March 2015 and 10 June 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Fellows on 23, 24 25 and 26 March 2015, Ms Keegan on 10 June 2015

SOLICITORS FOR THE RESPONDENT: Ross Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Collins

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER M M Meehan

Interim Orders until further order

LIVE WITH ARRANGEMENTS

1. That the children B born …2000, C born …2002 and D born …2010  (“the children”) live with the Mother.

PARENTAL RESPONSIBILITY

1. That the Mother be granted sole parental responsibility for the children.

SPEND TIME WITH

1. That there be no order for the children B and C to spend time with the Father.

2. That the Father spend supervised time with the child, D, (“the child D”) on one weekend per calendar month, for four (4) months at Relationships Australia, Suburb E, NSW for up to two (2) hours per session, then;

3. Thereafter, the Father spend unsupervised time with the child, D,  on one weekend per calendar month (other than April 2016 ) from 9am Saturday to 5pm Sunday  in the G Town area, with changeovers to take place at Relationships Australia, Suburb E, NSW, unless otherwise agreed.

4. That the Father spend time with the child, D,  as per Orders 4 & 5 above, on providing the Mother with two (2) weeks’ notice of his intention to spend time with D utilising the “talkingparents.com” web site and each parent is to create an account with “talkingparents.com” within seven (7) days of these Orders.

5. That the Father and the Mother commence the intake process with Relationships Australia, Suburb E, within two (2) weeks of the date of this Order and that each party pay one half share of all costs incurred with Relationships Australia.

OTHER COMMUNICATION AND INFORMATION

1. That the Father be permitted to send Birthday and Christmas cards and / or gifts to the children, which are to be given to the children.

2. That the Father, at his cost, receive copies of school photos and copies of all school reports for each of the children, and this Order is authority for this to occur.

10.That the Mother will facilitate all of the children writing to the Father at all reasonable times.

11.That the Mother will notify the Father, as soon as possible and within twenty-four (24) hours, of any medical condition or emergency of a life threatening nature that might affect any of the children.

12.That the Father will communicate with D via Facetime or Skype or telephone each Sunday evening between 7.00pm and 7.30pm (other than times that the Father is spending time with the child in accordance with these Orders) and the Mother shall provide any contact details for these services via the “talkingparents” website within seven (7) days of these Orders.

CHANGE OF ADDRESS

13.That each party is to notify the other of any change of address and contact details within forty-eight (48) hours of any such change occurring.

OTHER

14.The Father is to pay all costs of his travel and the travel of the Children as may be incurred in fulfilling these Orders.

15.Should any of the Children be on prescription medication during the times that they will be with the Father then the Mother will provide to the Father all such medications as may be prescribed along with accompanying administration instructions as provided by the relevant medical practitioner, and should there still be remaining medication to be administered after the Father’s time with the children then the ‘balance’ of the medication will be returned to the Mother.

16.The resumed final hearing of this matter will commence no earlier than 30 June 2016 in F Town on a date and time to be advised to the parties.

17.An updated Family Report be prepared within a reasonable time prior to the resumption of the final hearing of this matter, but after the father’s block holiday time pursuant to  Order 19 hereof.

18.On or before 4:00pm 30 June 2016 all parties make file and serve any affidavit material they intend to rely upon at the resumed hearing of this matter.

AND IT IS FURTHER ORDERED:

19.That the Father spend time with D for the 1^st week (being the first seven (7) nights) of the April 2016 New South wales school holidays commencing  at 9.00am on 9 April 2016 and concluding at 9.00am on 16 April 2016, provided that, except during transit, and unless the time is spent in the G Town region, such time is to be in the reasonable vicinity of another adult member of the father’s family.  (In this order the phrase “in the reasonable vicinity of” does not require strict supervision or immediate physical presence.) 

20.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 the 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.

NOTATION:
It is expected that nothing in these orders shall prevent the children from maintaining a relationship and contact with their paternal family and that the Mother will do all things necessary for this to occur.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ziller & Foster 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 F TOWN

FILE NUMBER: TVC1052/2011

Ms Ziller

Applicant

And

Mr Foster

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me are parenting proceedings involving the children of the parties, B, C and D.  The trial first commenced in front of me in March 2015 but had to adjourn for a reason that arose in relation to the father’s then counsel’s ethical predicament.  The matter resumed again before me today.  However, the parties have agreed, in substance, upon interim orders which would last for approximately the next 12 months, with a view to the trial resuming in the event that matters are not able to then be finally agreed.  I am satisfied that such orders are in the children’s best interests. 

2. The only matter remaining in dispute between the parties relates to the venue where the father will spend time with the children for one week of the New South Wales school holidays commencing 9 April 2016.  The mother seeks to restrict the father from taking the child or children from the G Town region, and in the event that I am against her as to that, seeks to restrict the father to spending time with the children in F Town.  The father wants to be able to spend that week anywhere, within reason, with the children, acknowledging that it is likely to be on one of his family’s properties, either in the H Town district or the I Town district in North Queensland. 

3. The mother opposes the father being able to take the children to any of those properties, or anywhere other than G Town or, alternatively, F Town, primarily on the basis of the child D’s health.  She suffers, according to the mother, from severe asthma, which has seen her in recent times hospitalised in an intensive care unit.  However, that is not the only factor which I identify as relevant to determine where the children’s best interests lie in this matter.  I should interpolate that, although the consent orders only specifically deal with the youngest child, D, it is acknowledged that both of the older girls, B and C, will likely accompany D on any time that she spends with the father.  Hence, although the order specifically only relates to holiday time with D, it is likely, in fact, to encompass all three children. 

4. Now, the factors that I identify as relevant to weighing where the children’s best interests lie are as follows:  firstly, such risk as the father poses to the children;  secondly, such risk as the mother poses to the children;  thirdly, the benefit from the children being able to experience the relationship of their father and other family members in a rural setting or a setting other than where they immediately live in G Town;  fourthly, the child D’s health;  and, fifthly, the need to develop some capacity between these parents to trust each other into the future.  I will deal with each of those in that order.

5. The risk that the father is said to pose to the children is one of sexual abuse or, alternatively, emotional harm from exposure to domestic violence or, alternatively, emotional harm of a more general kind, either resulting from him withholding the children from returning to their mother, from him, for want of a better phrase, badmouthing the mother in their presence, or from, on an extreme view, him suiciding in the presence of the children.  At the moment, the trial in relation to those issues, is part heard.  It would be inappropriate of me to make any conclusions, even provisional, as to such risk as the father may pose in relation to those matters. 

6. However in the evidence before me there is a real concern raised by the way in which the father treated, or spoke to, more precisely, the children during the course of a telephone conversations with them.  Indeed, I think there were three such recordings that were played to me.  He appeared on one occasion to be extremely emotionally distressed and was crying.  On a second occasion, he, for some considerable time, badgered and berated the children in relation to the allegations of sexual abuse that had been made against him.  On occasions he appeared to want to entice the children to engage with him by offering incentives, for instance, referring to their pet animals or suggesting they be put down or gotten rid of.  All of that, of course, remains to be explored further during the course of the trial, in the event that the matter needs further hearing.  However, suffice to say that I am satisfied on the material that the risk of emotional harm posed by the father is a live issue for my determination.  It is not, by any means, an illusory factor. 

7. I turn, then, to the risk that the mother poses, and that is said to principally be derived from the risk that she may alienate one or more of the children from the father and/or one or more of the children may falsely believe that he has sexually abused the younger child, D.  Again, in a part-heard trial such as this, it is inappropriate for me to make any conclusions in relation to that matter.  However, it plainly is a live issue on the facts before me because both parties appear to agree that the father’s relationship with the oldest two children has now broken down, or at least has gotten to a point where it is not one which sees them wish to spend any time with him.  Therefore, I am satisfied that the question of alienation and a false belief of sexual abuse are live issues, although I make no findings in relation to them in an interim matter such as this.

8. The next matter is the benefit which the child D and, indeed, the other two children, might benefit from experiencing their relationship with their father in the company of other family members and in a rural location.  I am satisfied that, indeed, the children would benefit from experiencing their father in the rural environment.  They grew up in the rural environment, or at least the older two girls did, and appear to be, at least to my provisional thinking, what may be described broadly as “country kids”.  I am satisfied that they would enjoy spending time in a rural location on one of the family properties and, indeed, it is important to them in their experience of their father to see him in that setting.  The same may be said for other members of the father’s family.

9. I turn, then, to the question of the child D’s health.  It is said she has severe asthma.  However, I note that she is presently medicated and I also note that the parties have agreed to an order that her medication should travel with her.  The mother appears to be concerned that the child may have an episode which would see her need for hospitalisation.  Of course, H Town itself is a reasonably major rural centre.  I Town has the access to the Royal Flying Doctor Service.  I am satisfied that while the child’s health is an issue, it is not a matter that, of itself and without more, necessarily determines the question of the father spending time with the children in those rural locations.

10. The final matter is the need to develop some capacity between these parents to be able to trust each other.  In my view, that is a critical matter in this case, given the complete breakdown of trust in their relationship to date.  In my view, these parties need to be able to begin to realise that each of them has some good points and that each of them has some trustworthy capacities.  That is not to foreclose the issue at trial, it is simply to say that the need for trust and communication between these parties looms large in my consideration.

11. Weighing those matters in the balance, I am satisfied that the best interests of these children, and specifically the child D, is to order in terms that the father be permitted to spend the first week of the relevant New South Wales holidays with D, without any physical or geographic restriction as to where that time may be spent.  There will, therefore, be an order in terms of paragraph 6 of the draft that was provided to me, save that there will be added to it, “provided that except during transit, and unless the time is spent in the G Town region, such time is to be in the reasonable vicinity of another adult member of the father’s family.   (In this order the phrase “in the reasonable vicinity of” does not require strict supervision or immediate physical presence).”

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 June 2015.

Associate:

Date:  10 June 2015