A & D

The Family Court of Australia heard an amended application brought by the husband concerning alleged breaches of orders made on 8 December 2003. The application, initially filed in the Federal Magistrates Court, was transferred to the Family Court and referred to Justice Guest, who had presided over the substantive proceedings. Following discussions between counsel, the parties agreed to negotiate variations to the contact orders, and the application was adjourned. When further negotiated contact arrangements proved unsuccessful, the parties agreed that the children would be interviewed by the court, with a court counsellor present to provide a short, non-cross-examinable report.

The court was required to determine the best interests of the children in light of their expressed wishes regarding contact with their father, particularly in circumstances where previous contact orders were not being complied with and had led to distress for the children. The court also considered the legal framework surrounding judicial interviews with children, including Rule 15.02 of the Family Law Rules 2004, and the practice of judges in such matters, noting the potential difficulties regarding the admissibility and weight of evidence obtained from interviews.

Justice Guest conducted the interview with the three children, aged 15, 12, and 11, in the presence of a court counsellor. The children presented as articulate, mature, and honest, expressing a clear wish not to have contact with their father at that time due to past experiences of verbal abuse and denigration of their mother. The court counsellor's report detailed the children's apprehension, their ability to engage openly, and their mature understanding of the issues, particularly the eldest son's insight into his father's acquired brain injury. The judge found the interview informative and instructive, noting the children's unity and affection, and was satisfied that their wishes were not influenced by their mother. The judge concluded that while the children loved their father and left the door open for future contact when they felt more capable of managing his behaviour, the current situation was intolerable for them.

Given the children's expressed wishes and the difficulties encountered with the existing contact orders, Justice Guest indicated that further litigation might not be productive. The judge proposed that consideration be given to suspending the contact orders until further order, while allowing for continued contact through letters, cards, and presents. The matter was stood down for the parties to discuss the future direction of the husband's application and the contact orders.