Andrews and Killarney
[2009] FamCA 746
•22 July 2009
FAMILY COURT OF AUSTRALIA
| ANDREWS & KILLARNEY | [2009] FamCA 746 |
| FAMILY LAW – CHILDREN – Interim |
| Family Law Act 1975 (Cth) ss 62G, 69L, 69ZW |
| Dicosta & Dicosta [2008] FamCAFC 161 Goode v Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Andrews |
| RESPONDENT: | Mr Killarney |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 2221 | of | 2009 |
| DATE DELIVERED: | 22 July 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 22 July 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms A. Frizelle |
| SOLICITORS FOR THE APPLICANT: | Elliadis & Associates |
| SOLICITOR FOR THE RESPONDENT: | Ms Reeve |
| SOLICITORS FOR THE RESPONDENT: | Eaton Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms McArdle Legal Aid Queensland |
Orders
IT IS ORDERED UNTIL FURTHER ORDER THAT
The child, …, born … September 1998, live with the Father.
The child spend time with his mother at such times and on such dates as may be arranged with the Family Consultant in accordance with Order 3 of these Orders PROVIDED THAT such times will occur not less than once per month and if possible more often, subject to the availability of the Family Consultant and on the giving of not less than 7 days notice by the Family Consultant.
IT IS ORDERED THAT
Pursuant to Section 65L of the Family Law Act 1975:
a. Compliance with these parenting orders is to be supervised by Ms S, Family Consultant, Child Dispute Services of the Family Court of Australia Brisbane Registry;
b. The Family Consultant will give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;
c. The parties will do all things, sign all documents, attend all appointments and ensure the child attends all appointments as are reasonably necessary for the purposes of these orders; and
d. The Family Consultant to address the following matters:
i.the supervision undertaken and contact with the parties and the child;
ii.the father’s willingness to facilitate a relationship between the child and his mother;
iii.the mother’s capacity to rebuild a relationship with the child; and
iv.the child’s circumstances in terms of his response to spending time with his mother and his ability to cope with seeing his mother.
The Family Consultant has liberty to discontinue any and all of the appointments referred to in Orders 2 and 3 above should they consider it not in the child’s best interests for the appointments to continue AND should that occur, the Family Consultant will notify the Independent Children’s Lawyer of her decision to discontinue the appointments and provide the report referred to in Order 3 d. within 14 days of that decision.
As part of the s65L supervision process, the Family Consultant shall specifically assess and address the issue of whether it is in the child’s best interest for orders to be made in the interim that he spend time in addition to that provided for pursuant to the s65L process, supervised at the Logan Contact Centre.
It is specifically requested that Ms S or such other Family Consultant undertaking the s65L process contemplated by these orders, prepare a short report with respect to the issue referred to in the previous paragraph of these orders (together with such other issues as Ms S or other Family Consultant might consider directly relevant) in preparation for the further mention of this matter on 13 November 2009.
The parties do all such things, sign all such documents and authorities and pay all such reasonable fees as might be necessary and attend all such interviews as might be nominated, so as to allow Dr M, psychiatrist to prepare a psychiatric report in respect to of each of the parties.
IT IS DIRECTED THAT
The Independent Children's Lawyer, at the time of briefing Dr M to provide the Report referred to in paragraph 7 of these orders, request of Dr M an assessment, based on her interviews with the parties, her reading of the report by Ms S, and the s69ZW report, as to whether it is in the child’s best interest for her to interview and assess him.
Leave be granted to the Independent Children's Lawyer to provide to Dr M:
a. the Report of Ms S;
b. the s69ZW report;
c. such documents produced pursuant to subpoena from the Queensland Police Service.
A copy of the s69ZW Report provided by the Department of Communities (Child Safety Services) be provided to the legal representatives of the parties.
IT IS FURTHER ORDERED THAT
The matter be adjourned to the Magellan Directions List before Justice Murphy at 11.00am on 13 November 2009 in the Brisbane Registry of the Family Court of Australia.
The Independent Children’s Lawyer and the parties have liberty to relist the matter on 7 days notice in writing.
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Andrews & Killarney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 221 of 2009
| MS ANDREWS |
Applicant Mother
And
| MR KILLARNEY |
Respondent Father
EX TEMPORE REASONS FOR JUDGMENT
On 18 June 2009 this matter was before me in the Magellan Directions List. At that time the father of the 10-year-old boy, born in September 1998, the subject of these proceedings, did not appear.
An order was made, among others, that pursuant to section 62G of the Act a report be prepared for this court by Ms S, “notwithstanding the absence of interviews with the father and the child.”
Ms S subsequently prepared a report which is dated 14 July 2009. That report records that the father did not make himself available for two interviews arranged by Ms S for the purposes of the preparation of the report, but did make himself available on a third occasion.
Ms S also records the reasons provided by the father for not attending those two earlier interviews. A resolution of the veracity or otherwise of the reasons given is beyond the scope of the instant proceedings.
The mother had earlier filed an initiating application with an accompanying affidavit in the Federal Magistrates Court seeking parenting orders. The proceedings in that court were transferred to this court by reason of the allegations and counter-allegations made by each of the parties in respect of their parenting and co-parenting.
That application also seeks interim parenting orders which, in broad outline, seek orders that the child, who was born in September 1998, live with his mother, and that the father spend time with him, but that time be supervised by the Ipswich Children’s Contact Service.
The material, albeit material prepared on a preliminary basis, as it were, together with the assessment by Ms S, reveals a series of allegations and counter-allegations, all of which are significant and serious in terms of arriving at orders that might be in the child’s best interest.
Those allegations include, on the part of the mother, allegations of significant family violence by the father toward her. She alleges “family violence”, as that term is defined in the Act, towards not only the child, the subject of these proceedings, but another child of a previous relationship of the mother’s.
More recently, the mother makes allegations against the father that he has behaved in a sexually inappropriate way with that older child of hers. Those allegations were investigated by the police and the Department of Child Safety, and are now the subject of criminal charges.
I am informed from the bar table this morning that committal proceedings have occurred, and that the father has been committed for trial. It is, at the moment, unclear when that trial is likely to take place. Experience shows, however, that it is likely that the trial is yet some considerable time away.
The child currently lives with his father. He has not seen his mother since September 2008. The circumstances in which he has not seen his mother are, on the surface of it, troubling. It appears, at least on the mother’s case, that she was spending reasonably significant amounts of time with the child prior to September 2008.
At a time approximate to the allegations of sexual abuse being made, it appears that time between the child and his mother ceased. He has now not seen his mother, save for the purposes of the family report earlier referred to, since September 2008.
This is a matter of very considerable concern to this court, not only by reference to the statutory objects and principles, but by reason of what might be expected to be in a child of his age’s best interests.
Ms S, who has prepared the report earlier referred to, raises a number of issues directly relevant to these interim proceedings.
The mother, intelligently, if I may say so, does not press her application for the child to live with her on an interim basis. Although not specifically referred to, it seems that each of the parties, and certainly the Independent Children’s Lawyer, are cognisant of the fact that proceedings for interim relief consistent with what the Full Court has held in C & C, and more recently in the post-Reform Act decision of Goode & Goode, have certain characteristics.
Relevantly, the nature of an interim hearing is a curtailed one and inherent in it is a restriction on the capacity of the court to make findings of fact, save in limited circumstances. Indeed, the court is directed to less contentious facts, issues not in dispute, existing care arrangements and the current circumstances of the child and the parents.
It is sometimes said that the nature of an interim hearing is such that, as a matter of principle, the court should be reluctant to make changes to existing circumstances other than in the most compelling of cases. For many years that assertion has been commonly referred to “the status quo.”
The proposition just expressed, if it exists as a principle at all, does not exist to the exclusion of an appropriate consideration, albeit within the restrictions just referred to, of the relevant statutory Objects, Principles and Considerations. It seems to me that the Full Court in the decision in Goode v Goode made that abundantly clear.
Our system, with all its flaws inherent in a human decision about something as complex and difficult as the best interests of children, provides for but two methods for resolving a parenting dispute. The first, and by far the most preferable and the best for the children, is that the parents agree. The second is a hearing at which evidence is given, tested, analysed, and ultimately decided upon.
Interim hearings, such as the one today, do not fit that description. No pretence can be put up that issues are properly explored at an interim hearing, save where clear and uncontroversial facts allow that to occur.
It is not appropriate to pay lip service to the principles governing these forms of hearing.
It will be clear, I think, from all that I have said already that I am cognisant of the authorities which bind me, and, in particular, the decision of the Full Court in Goode v Goode, and that I am also cognisant of the clear mandates provided by the statutory Objects, Principles and Considerations.
I should also record, I think, that I am aware of the decision of the Full Court in Dicosta & Dicosta [2008] FamCAFC 161 and, in particular, what the Full Court said there with respect to what is sometimes called the “status quo factor” and the relevance, in the context of the current legislative provisions, of changes of circumstances, separation from a parent and the like. I have in mind, in particular, paragraphs 34 and 35 of the Full Court’s judgment in that respect.
The issues just described are particularly acute in this case because of the nature of the allegations and counter-allegations made by each of the parties.
I have already referred to the allegations made by the mother at the centre of the case she makes in respect of the child.
I also record that there are significant and serious allegations made by the father against the mother. He alleges that she has a significant problem with alcohol and has always had a significant problem with alcohol; that this has manifested itself in neglectful parenting including, for example, significant changes of residence. These are issues, too, which Ms S refers to in the report prepared by her.
It will be abundantly plain, then, that where the factual assertions and counter-assertions between the parties are firstly so serious, secondly so complex, and, thirdly, intermeshed, that the only possibility of resolving them and arriving at a decision with respect of the child’s best interest can occur at a trial.
I said during the course of argument to Ms Frizelle, counsel for the mother, that it seems to me that in accordance with the principles enunciated by the Full Court applicable to interim hearings, that this court, when it comes to making interim orders with respect to children, should apply the old medical adage, that the court should “first attempt to do no harm”.
With those considerations in mind, the Independent Children’s Lawyer, if I might say so respectfully, sensibly, proposes a series of orders designed to accommodate many of the matters to which I have just made reference.
First the proposed orders can be seen to preserve a situation for the child with his father that has existed for some time. Ms S says in her report that:
[the child] does seem very strongly attached to his father. In fact, it is my opinion that this attachment verges on a dependency by [the child] to his father. [The child] seems to need his father in a manner not normally seen in 10 or 11-year olds. Such a dependency has probably developed because of the child’s strong sense of abandonment by his mother, and more recently a growing fear that he may also lose his father if he is convicted of sexual assault charges.
At paragraph 16 of that same report Ms S says that the mother:
Acknowledges that [the child] is very attached to his father, and even if the court decides that he should live with her, he would need to maintain his relationship with his father on an ongoing basis.
The picture of the child presented by Ms S is that of a very troubled boy. She says that:
He presented as a quiet somewhat withdrawn but amiable child. He was extremely apprehensive about seeing his mother to the extent that his apprehension seemed to inhibit him in general throughout his interview and observations. He articulated from the outset of his interview that he was a bit scared about seeing his mother, and his apprehension observably escalated throughout his interview.
It is important to point out, as I did during the course of argument, that the causes of the behaviour exhibited by the child to the family report writer, and a comparison between the observations made by that family report writer with evidence accepted by a court at a trial of the pre-existing relationship between the child and his mother, are highly likely to be important matters in the final resolution of this matter at a trial. Equally the resolution of those matters is beyond these interim proceedings.
Importantly, Ms S says in her final evaluation that:
The evaluation of both parents’ proposals suggests that there may be some level of risk of emotional and/or physical harm to the child with either parent.
Ms S then goes on to discuss the allegations and counter-allegations made by each of the parties to which I have just referred.
Ultimately, Ms S opines:
In weighing up the risks that each parent presents to this child, it is my opinion that (the father) poses the lesser risk for [the child] in the interim. This reasoning is based on the fact that, at present, [the child] appears to be functioning well living with his father. Both [the child] and his father’s presentation in the interview and observation together suggest that this father and son do have a very strong bond and that [the child] is reaping sufficient emotional nurturance from his father. The fact that [the child] is also battling with a sense of abandonment from his mother, and possible loss of his father if (the father) is convicted of the sexual abuse charges, adds strength to this opinion that [the chid] is in the interim at less risk of harm living with his father. Furthermore, as stated earlier in this report, it is my strong opinion that much of the trauma [the child] appears to be showing is not from either parent, but from the harmful effects of being vicariously exposed to extreme violence and emotional turbulence between his parents whilst they were in a relationship.
Ultimately, then, Ms S recommends that the child remain living with his father, but that the recommencement - and I emphasise the word recommencement - of time between the child and his mother occur through a section 65L order.
The report writer also recommends that the participating family consultant prepare a report consequent upon that process, designed to shed light on:
a)the father’s willingness to facilitate a relationship between the child and his mother;
b)the mother’s capacity to rebuild a relationship with the child; and
c)the child’s circumstances, in terms of his response to spending time with his mother, and his ability to cope with seeing his mother whilst living with his father.
Ms Frizelle, on behalf of the mother, whilst agreeing to the section 65L orders proposed by the Independent Children’s Lawyer, broadly in conformity with what is recommended by the family consultant, submits that the proposed time pursuant to that order, (once a month at the court with a family consultant), is insufficient, given the relationship that previously existed between the mother and the child prior to September 2008.
In that regard, it is proposed that supervised time, in addition to that provided for, be spent at the Logan Contact Centre.
It seems to me that this submission would have more persuasive force but for what Ms S observes of this troubled young boy when in the presence of his mother. Ms Frizelle rightly submits that the reasons for that, and in particular, the reasons why the child may be angry with his mother, are not specifically addressed in the report (to the extent that they could, in any event, be so assessed by reference to the expertise of the family consultant).
It seems to me that those matters, to the extent that Ms S is able to comment upon them, are likely to emerge from the section 65L process otherwise contemplated.
I think there is some merit, however, in suggesting that more time between the child and his mother might be contemplated.
What I propose to do is to make an order pursuant to section 65L, broadly in terms with that proposed by the Independent Children’s Lawyer. But I propose to bring this matter back before me in three months time at 9.30 am on 22 October 2009.
I will also add to the matters which Ms S recommends, which are taken up in the proposed orders by the Independent Children’s Lawyer, an additional consideration, and that is for Ms S to prepare a short report for the purposes of the hearing contemplated as taking place on 22 October 2009, specifically addressing the issue of whether, having observed the child with each of his parents - and, in particular, with the mother - what ramifications there might be for the child in further time being ordered between he and his mother, supervised by the Logan Contact Centre, pending a trial of this action.
Ms Frizelle also submits that there is a suggestion in the report that the child has been “dragged into the adult dispute”.
It is certainly true that observations made and opinions given by Ms S could lead to that conclusion. Arriving at that conclusion, however, is, again, a matter to be addressed at a trial, and beyond the scope of these interim proceedings. I repeat, lip service cannot be paid to the principles applicable to these hearings.
Allied to that submission, Ms Frizelle submits that the child is likely to need counselling or treatment of some sort.
Ms S recommends that a clinical psychological assessment of both parties be undertaken. The parties and the Independent Children’s Lawyer are in agreement that Dr M should provide such an assessment of the parties.
An issue which emerges, however, is that the mother submits that Dr M should also see and assess the child. The reason for that is allied to the submission made earlier about an assessment being made of the reasons for the child’s anger and/or attitude exhibited toward the mother as reported by Ms S.
I said during the course of argument that the term “systems abuse”, which is really another name for emotional abuse, is a term that is now in common parlance. Sometimes, I think, the fact that it is in common parlance allows parties, and sometimes the court, to forget that systems abuse is, in fact, a form of emotional abuse, and, therefore, ought be avoided if at all possible.
Ultimately, a determination about whether a particular child in particular circumstances has the personality, psychological structure and resilience to participate in various report processes and/or counselling is a decision based on professional expertise.
With that in mind, I propose to order that the parties attend upon - do all such things, sign all such documents, etcetera, as are necessary so as to allow Dr M to prepare a report. But, I will specifically direct the children’s lawyer, in briefing Dr M to ask her to consider whether, on the basis of the information and data provided to her, including the report from Ms S and the section 69ZW report prepared by the Department of Child Safety, it is in the child’s best interests for her - that is, Dr M - to see and assess him.
If, but only if, Dr M is of the professional opinion that such interviews and assessment can be carried out without likely significant detriment to the child, then she shall include an assessment of the child as part of her process.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 19 August 2009
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