A & D

[2004] FamCA 879

[2004] FamCA 879

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  

AT MELBOURNE  NO. MLF 10436 of 2000 

IN THE MATTER OF:

MR A  (Husband)

and

MS D (formerly MRS A)  (Wife)

and

CHILD REPRESENTATIVE

EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:             26 August 2004
Date of Judgment:           26 August 2004

Appearances:

Ms Papasavas, solicitor of Messrs Pearsons, Solicitors, on behalf of the Applicant (husband)

Mr Lampe, solicitor, of Donald S Lampe, Solicitors, on behalf of the Respondent (wife)

INTRODUCTION

1. I have before me an amended Form 49 Application brought by the husband and filed on 31 May 2004 out of the Federal Magistrates Court. The initial Application was filed on 2 April 2004 and concerns alleged breaches of orders that were made by me on 8 December 2003. The Application is supported by affidavits of the husband, Ms T and Ms L. On 1 June 2004 Hartnett FM transferred the Application to the Family Court of Australia pursuant to Section 39 of the Federal Magistrates Act 1999.

2. As I was the trial Judge in the substantive contested proceedings, the Application was referred to me on 24 June 2004.  On that day, following helpful discussion with counsel for the parties, I indicated that it would be inappropriate for me to hear the Application given certain findings in my judgment delivered 8 December 2003.  However, with considerable commonsense, the parties engaged in negotiation and in the result they agreed upon slight variations to the orders I made for contact so that the Application was adjourned for mention only before me on 2 August 2004. 

3. On that day I was informed that the further negotiated contact regime was unsuccessful.  Following discussion it was agreed that, subject to the children's consent, I would interview them in chambers.  It was also agreed that a Court Counsellor would be present to report in short form upon the interview and that the report be subsequently released and placed on the court file.  The Court Counsellor would not be subject to cross‑examination.  In the result, the children agreed to attend the interview which was conducted on 23 August 2004 in the presence of Ms S, a counsellor of the Family Court of Australia (Melbourne Registry). 

LEGAL COMMENTARY

1. The issue of judicial interviews with children has an interesting background. Rule 15.02 of the Family Law Rules 2004 (formerly Order 23 rule 4) provides that a judicial officer may interview a child who is the subject of proceedings under Part VII of the Family Law Act 1975 (as amended). Rule 15.02(2) provides that the interview may be conducted in the presence of a family and child counsellor, mediator or other person specified by the judicial officer.

2. The issue of whether or not to interview a child is discretionary, but it has been the practice of most judges not to do so (see KS v DS (1999) FLC 92-860 at 86,165). There are strong reasons for caution, but circumstances may exist where interviewing the child is appropriate, such as the age and maturity of the child (see ZN and YH and the Child Representative (2002) FLC 93-101; B v B (minors) (Interviews and Listing Arrangements) (1994) 2 FLR 489).

3. The former Order 23, rule 4(4) provided that evidence of anything said at interview was not admissible in any court. However, it is noteworthy that this has been omitted from the new Rules leaving this issue somewhat uncertain. Although not pertinent to the circumstances confronting me, Rule 15.02(3) provides that if a child expresses a wish during the interview that is relevant to the case, the judicial officer may order a family report be prepared, presumably to enable material to be presented in admissible form. It can be seen that the authorities to which I have referred are authorities dealing with a judicial interview prior to trial. Such was not the case before me, but a process undertaken following judgment and in circumstances where the orders made under contest were not being complied with.

4. As a general observation, and it is quite obvious, that questions of admissibility of statements or events at the interview, the weight to be attached to them, the subjective impact they may have in any event upon a judge, and the inability of the parties to test these matters remain difficulties which may not be met by the provisions of the Rules.  In this instance however, it was agreed by the parties that the Court Counsellor deliver a short report on the interview process which would not be subject to cross-examination. 

5. As I said, I conducted the interview in the presence of Ms S and in order to give understanding to my recommendations, I propose to include the report in my judgment in its pristine form.  Ms S reported as follows:

   “1.On Monday 23 August, [C] aged 15 years, [H] aged 12 years and [E] aged 11 years were interviewed by his Honour Justice Guest with the counsellor present.

   2.The issue concerned [the father’s] contact to his children.  There has been a long-running dispute between the parties as to contact, much of which has centred on the children's wishes, the mother's attitude to contact and the father's behaviour towards the children when on contact.  The discussion with his Honour centred around the children's experience of contact and their relationship with their father.

   3.The children presented as polite and courteous with some apprehension at first which was quickly allayed by discussion around school and sport in which the children were keenly interested.  They were endearing children, well‑mannered who listened attentively, considered what was put to them and responded openly and honestly.  They engaged quickly and easily and were soon comfortable and at ease.

   4.All three children displayed a mature understanding of the issues but [C] in particular displayed a maturity and insight well beyond his years.  He presents as a bright boy who, despite the negative experiences with his father on contact, has not rejected or condemned his father.  His insight and understanding into his father's behaviour as a result of the accident is considerable and remarkable for someone his age.  He is a sensitive and caring boy who takes the responsibility for his sisters' welfare and this was even displayed during the interview when he comforted [E] who at one stage became a little tearful. 

   5.[E] was keen to express her wishes and thoughts and her excitability sometimes needed to be contained which she accepted and then waited for her turn to speak.  She did become emotional when reporting on some of the negative experiences with her father where he had been verbally abusive to her or her siblings.  She is a girl whose emotions are spontaneous and overt.

   6.[H] is more contained than her sister but displayed confidence and assertiveness.  She expressed her views and thoughts clearly and there was no suggestion that she had been influenced in adopting a particular view but stemmed from her own experiences.

   7.Each of the three children clearly expressed a wish not to see their father at the moment.  They each recounted past events where they had been verbally berated and abused by their father, where he had condemned and belittled their mother to them and where they had felt emotionally distraught by his behaviour.

   8.Each of the children spoke of their attempt to engage positively with their father and "giving him another chance".  However, the children reported that of the planned contact visits [the father] had failed to attend some.  Unfortunately, each of these occasions proved to be emotionally harrowing experiences for the children which only served to confirm that their father was not able to change.  They were unable to report any contact time with their father which was rewarding or when their father had not been verbally aggressive. 

   9.None of the children wishes to see their father for the present.  They do not want to be exposed to his denigration of their mother and fear his aggressive behaviour.  They do not feel safe with him and have no confidence in any family members to supervise the contact.  The children's wishes were expressed with resoluteness and calm and were assessed to have been formed as a result of their personal experiences and not through any influence by their mother or other adult.

   10.[C] in particular understands and appreciates that his father's behaviour changed as a result of the head injury sustained as a result of an accident.  He approached the contact in the hope that he could engage more positively with him.  However, he has been disappointed and even disheartened that his father has not been able to desist from abusing him or his mother.  He has chosen not to expose himself to such a situation, at least not until he is emotionally more robust and capable to deal with his father's outbursts. 

   11.None of the children have rejected their father and all expressed a commitment to connect with him some time in the future. [C] in particular was clear about his relationship with his father.  The children seemed to be saddened by the negative experiences with their father but their willingness to reconnect with him in the future points to the children's understanding of and insight into his behaviour and their relationship with him.

   12.[C] has a clear understanding of the whole situation including his ability to manage contact.  He was genuine and unequivocal in his desire to reconnect with his father in the future.  He will lead his sisters by his example whilst at the same time ensuring their safety.  If [C] can reconnect positively with his father in the future, and he has every intention of attempting to do so, [H] and [E] will follow.  Whilst [the father] may feel robbed of his children if the court does not enforce the contact, he may be reassured to know the sentiments of his son who stated with some insight and heartfelt emotion that ‘I haven't lost a father, I see it as having lost time with my father’.

   13.It is the counsellor's view that the children do not have the emotional and psychological resources to manage and cope with the challenges of contact given the current situation.  They clearly do not want to see him, at least for the foreseeable future.” 

THE INTERVIEW

1. I found the interview with the three children both informative and instructive.  They each presented as courteous and articulate children, evidencing a sense of maturity beyond their years.  They easily engaged in preliminary discussions, which centred topically on the current Olympic games.  Any feelings of initial discomfort quickly abated.  Immediately upon our first meeting I was struck with their polite, well‑mannered presentation and genuine cordiality. Each of the children freely communicated with me and were both fluent and eloquent.  They were sensibly resolute, definitive and well-rounded in the logic of what each had to say. 

2. The background facts are set out in my judgment delivered 8 December 2003 and which includes the important observation that they had not seen their father for several years. In such circumstances, those positive characteristics to which I have just referred must fall very much to the credit of their mother and I had no sense that she had primed or influenced the children one way or another to express a view in the course of our meeting which was contrary to their own.  There was a natural and innocent spontaneity attached to what they each had to say, and significantly, in my view, an obvious demonstration of unity, fellowship and affection between the three of them.

3. In particular, they each maintained their position of not wishing to have contact, for the moment, with their father.  I was left with the clearest impression that the door to reunion at a later stage was open, but only when they each felt they could cope with their father's mood swings and his maintained verbalised denigration of their mother.  They were able to particularise what for them amounted to painful contact with their father following my orders and from what they said I am satisfied that it had been far from successful or in their best interests. 

4. In a disarmingly frank and descriptive manner, C was able to recount the events relating to contact resulting from my orders and in so doing related his view of the meetings.  By any measure they were far from satisfactory as he complained of further denigration by his father of his mother and of a generalised lack of comfort that I had hoped would not accompany such occasions.  C had no grudge to bear, felt no ill will towards his father, but rather expressed through his own eyes what must have been a troublesome, uneasy and awkward experience.  He expressed considerable insight into his father's Acquired Brain Injury, with associated compassion and understanding.  He felt considerable regret at not having, as matters have now stood for some time, a father in his life and in circumstances quite outside his own control.  I have no doubt that the children love their father, but past experience, and indeed those now following my orders, have placed them in a position that is intolerable. 

5. C also explained in a most passionate way how he looked forward to seeing his father following my orders and had a ready expectation, not met in the result, that theirs would be the beginning of a new regime.  He was genuine and sincere in what he had to say.  Such proved, however, despite the best intention available drawn from the court orders, not to be the case.  The disappointment to the three children was quite obvious to me and E was tearful when expressing her feelings.

6. I am satisfied from the process that I have undertaken with the cooperation of the parties and their legal representatives that the children do not wish, as matters presently stand, to have contact with their father.  However, and of this I am confident, that the door to a relationship is not closed but readily open for another time when they are each more confident, more mature and more able to cope with their father’s behaviour, so readily apparent and resultant from his tragic accident in 1996.  In an expression of real insight, understanding and maturity, C said at the conclusion of the conference, “I have not lost a father.  I see it as having lost time with my father.”

7. It would be my hope that what I have said will not be received by the father either negatively or antagonistically, but with a sense of hope and that he feel a sense of pride, albeit absent from the children, of their achievement at school, their wonderful sense of future direction and their mature understanding of the current situation.  I sense that he is overwhelmed at what he perceives as blameworthiness on the part of his former wife for the position in which he now finds himself.  That may well be a product of his injuries and may not change even with the passage of time, which would be regrettable.  It is important, in my view, for the children to be able to have the strength to cope with that and in so doing not permit it to impact upon their day-to-day life. 

CONCLUSION

1. The interview I had with the children essentially centred around their views, their feelings, observations and wishes.  This was an important consideration during the trial process in 2003 and one which I dealt with in my judgment.  At that time the children had had no face-to-face contact with their father for in excess of two years and on the evidence then before me I was persuaded to not act in accordance with their wishes for the reasons stated.  The orders I made in the result were very modest and were perceived by me, on the whole of the evidence I heard over five days of contest, to be in the children's best interests. 

2. I have read the affidavits filed by and on behalf of the husband and from what I have been told by the children there are matters in issue, and otherwise, certainly from their perspective, matters not referred to.  This is not said by me to cast aspersions upon the deponents and I accept for the purpose of these observations that what has been said was expressed in good faith.  Those affidavits remain untested in any event.  However, from the perspective of the children there are other issues involved.  I also wish to make it quite clear that the contents or indeed the fact of any of the affidavits were not discussed or referred to during the interview.  I just listened to what the children had to say. 

3. Significantly for my purposes, I record that C informed me freely and without prompt that he had greatly looked forward to the meeting with his father and had the clearest aspiration or hope that it would be productive, given the past period of non-contact.  As I said, such proved not to be the case, and indeed parts of the affidavits filed on behalf of the husband lend support to this disappointing result. 

4. It seems to me that as matters presently stand, nothing more can be sensibly achieved through the process of litigation.  Without wishing to be seen in any way determining the husband's enforcement application, there are certain elements in law that may be difficult for him to overcome, and in any event, win or lose, where to from here?  That is the question and must be answered within the umbrella of the children's best interests.

5. Whilst it is clear the children do not wish to see their father, I was left with the clear view that, notwithstanding what has occurred, they love him, they understand him and that the door to future contact when they are stronger and more mature is left open.  This is not now a struggle between parents and the identification of fault, mismanagement or irresponsibility.  Blameworthiness either way should be sublimated and that, in my view, having had this interview with the children, consideration should be given by the parties to a suspension of the contact orders until further order.  There is no reason why contact through letters, cards, photographs and Christmas and birthday presents should not be maintained. 

6. In the current circumstances I will stand the matter down for the parties to discuss the future direction of the husband's application and the contact orders made on 8 December 2003.  I should record that early in the delivery of this judgment, the husband, regrettably, left the court. 

   I certify that the preceding 21 numbered
    paragraphs are a true copy of the
   reasons for judgment herein of
   the Honourable Justice Guest.
   
   
   
   
   Associate to Guest J