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Father re-united with children

Posted by Benchmark Lawyers in Family Law | 0 comments

Sandford & Cobb [2016] FamCA 11 (20 January 2016)

Keywords: children taken without knowledge of father – mother not supportive of father’s time with children – therapeutic counselling – reintroduction to father – family report – application to transfer matter dismissed.

Background

Mother and father began their relationship in 2001, got married in 2004 and separated in 2009. They had 2 children who are now 11 and 9 (boy and girl). The children lived with the mother after separation. She claimed that the father was violent towards the end of their relationship and that he threatened her with a gun to her head several months after their separation. It was not alleged that he was violent towards the children. An AVO was made to protect her which the father agreed to without admissions as he denies the allegations.

Arrangements were made for the father to spend time with the children. The mother alleged that he did not return the children on one occasion and the father denied this.

The mother re-married in 2011 and the relationship with the children and the father deteriorated.

In early 2011, the mother and her husband went to live in country Z without the father’s knowledge. The father was asked to sign for passports so that the children could go to Singapore with the mother and husband. He found out that they were living in country Z and was able to make arrangements to spend time with them, including overnight times.

The mother had alleged that the children refused to spend time with the father. The family returned to Australia in June 2012 without the father’s knowledge, however the father found out where they were. Late 2012 was the last time the children spent time with their father.

In mid-2013, the family moved again without letting the father know. He commenced proceedings in the FCC in August 2013. The ICL recommended that the father start spending supervised time with the children which did not happen. The father alleges that the mother did not facilitate the visits.

A family report was ordered and the mother and husband attended the interviews. The mother was pregnant at the time and was not feeling well. She did not wish to participate in the interview and told the report writer that the children did not wish to participate either. The father, however, did participate in the interview and a partial report was written.

In December 2014, the family moved to country Y without the knowledge or consent of the other father.  The mother claims that she found a note in the letter box saying “I know where you live” and she believed that it was written by the father. The father denies writing this note and it was not adduced as evidence. The mother gave birth in Country Y and returned to Australia soon after. The father became aware of this in February 2015.

Aspects of the Family Report 

The older child was first reluctant to see the report writer. He told the report writer that he did not want to see his father and that it was “not fair” that the father was trying to come into his life. The child told the report writer of things that he remembered about his father and things that he was told by his mother.

The younger child refused to be interviewed and although encouraged by the mother and step-father verbally, their body language spoke differently.  No observation session with the father and children were done because the children refused to spend time with the father.

The report writer’s evaluation is as follows at [33]:

“Children in the nine to twelve age bracket, although better able than a younger child to understand some of the reasons for parental separation, often perceive the issues in black and white as this is cognitively easier for them. Additionally, it can help them to reduce their anxiety around parental conflict and divided loyalties. This perception often leads to alignment with one parent and rejection of the other.

If they are allowed to re-build their relationship with their father in a safe environment, it allows them to form their views and opinions based on their own experience and more recent experience. It also allows them the opportunity of having a relationship with their father free from fear.

Due to their strong alignment with their mother, [it] is likely that both children would refuse to spend time with their father, even if Orders were made. This would put the children in a position of high anxiety.  Any attempt to assist them to rebuild their relationship with [the father] needs to be planned and carefully implemented. It needs to include a therapeutic element.”

The ICL was of the view that the children should start spending time with the father latest by March 2016. The transition would be supervised, then quickly to short amounts of time then overnight time.

Judgement

At [38] Neville J stated:

“However, the best interests of the two children, in my judgment, require what might be described as “a cautious robustness” to the reintroduction of the children to spending time with their father. Immediate therapeutic counselling is in their best interests. Reintroduction to their father, through that therapeutic process, is also in their best interests, as recommended. However, I am very concerned that an open-ended time frame, coupled with the mother’s clear view that the children should spend no time with their father, will result in no actual progress towards the children spending time with their father being made in the six month period suggested, before orders providing for time are made. The real risk of the children becoming completely estranged from their father, that the family report writer has so clearly pointed out actually exists at present, in my judgment, demands a fairly robust approach. If the children do not start spending time with the father soon, it could very well be too late. At the same time, there is a need to be mindful of the need for reintroduction in a way that ensures the children’s physical safety and emotional wellbeing are appropriately secure.”

The Court made orders in the interim for the father and the children to undergo therapeutic counselling and for the children to spend time with the father.

The court also dismissed the mother’s application to have the matter transferred to Townsville where she and her witnesses lived. The ICL and the father sought to have the matter in Brisbane, where it currently is. The ICL’s position was that she was from Lismore and having the matter transferred to Townsville would be of more inconvenience to her. The father’s position was that if the matter was transferred to Townsville would reward the mother for unilaterally moving without notice.

 

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