Beadle and Beadle

[2009] FamCA 913

FAMILY COURT OF AUSTRALIA

BEADLE & BEADLE [2009] FamCA 913

FAMILY LAW – CHILDREN – With whom a child spends time – Interim – Supervision

APPLICANT: Ms Beadle

RESPONDENT: Mr Beadle

INDEPENDENT CHILDREN’S LAWYER: Warren McKeon Dickson

FILE NUMBER: SYC 3747 of 2009

DATE DELIVERED: 12 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 12 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Lantis for Legal Aid NSW

SOLICITOR FOR THE RESPONDENT: Mr Cumming, as agent for
Hilton King Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Doring for Warren McKeon Dickson

Orders

1. Unless the parties agree to the contrary, until further order, the children T and J, respectively born on … May 2000 and … March 2002, live with the mother.

2. Unless the parties agree to the contrary in writing, they spend time with the father, subject to the capacity of the E Contact Centre, run and managed by InterRelate, to service that time, not less than two hours on two occasions each week.

3. I give leave to either party or the independent children’s lawyer to restore the proceedings to the list on seven days notice for that purpose.

IT IS NOTED that publication of this judgment under the pseudonym Beadle & Beadle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3747 of 2009

MS BEADLE

Applicant

And

MR BEADLE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, T and J.  They are nine and seven.  Their mother was born in Japan and is 35 years of age.  Father was born in the United Kingdom and he is 43 years of age.  They started a relationship after they met in about 1997-1998. They started to live together in 1998 in Japan, moved to Australia in 1999, were married in Australia in December 2001 and moved to England in December 2001.  In November 2002 the father came back to Australia and the mother went to Japan with the children.  She came back then to Australia in April of 2003. 

2. All of the parties changed their name to Beadle. The father’s name had been L, or a name similar to that. The father says that that was his stepfather’s name and he changed his name back to his mother’s maiden name.  The mother says that their leaving England occurred after some sort of investigation in relation to the father.  The inference from her evidence is that the name change was something other than a family preference.

3. The parties finally separated on 31 May 2009. The mother says that she was the victim of a controlling, manipulative relationship throughout the parties' time together, that she was overborne to some extent and that the father threatened her. She says that each year up until the end of last year the father had agreed or arranged for her to take the children back to Japan.

4. The mother gave her consent to J living with the father.  In October 2008 he withheld J, she says.  She says that she was pressured into putting pressure on her own parents to provide $26,000 to the father.

5. The proceedings here started with the mother’s application of 25 June 2009. On 15 July 2009 a recovery order issued on her application, in circumstances where the mother had been told by the father that he was planning to take J to England indefinitely. The recovery order was executed.  The matter came back before this court on 22 July 2009 and since then the children have been with the mother.  Some orders were made on 22 July 2009 by agreement for there to be some time with the father, supervised by his mother and the children’s paternal great aunt. That included overnight for two weekends.

6. The matter is back here today.  The father seeks that J live with him, that T live with the mother, that the children be together on weekends spending time with each of the parents. The mother seeks that there be a continuation of supervised time, in the absence of a suitable supervisor, at the E Contact Centre. That is an organisation run by InterRelate. The mother says supervision is needed because the father threatened to remove J from her life indefinitely, that he is a UK national, and that there is a risk of removal even within Australia. Further, she says he has behaved inappropriately in terms of undermining her relationship with the children and interrogating the children. Thus she argues that for the time being, his time should be supervised.

7. The parties attended on a Family Consultants who records:

   The mother proposed that there be supervised time for the children with their father.  She is concerned about the father manipulating the children, especially [J], against her and involving them in the parental dispute.  She feels that if this goes well that the children spend every second weekend with their father and an evening during the week, plus school holiday time.  She remains concerned about the father removing [J] from the jurisdiction.

8. I am to make orders in the best of interests of the children.  How one does that is set out in the legislation.  If there is to be equal shared parental responsibility I am to consider, with a view to ordering, equal time.  If I do that and don’t order equal time, I am to consider with a view to ordering substantial and significant time.  And in any event I am to make orders in the best interests of the children, and how one determines that is by reference to section 60CC of the legislation which says that there are primary considerations and additional considerations.  The primary considerations are the benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  The additional considerations are any views expressed by the child and factors such as maturity and level of understanding that would go to the weight of those wishes; the nature of the relationship between the children and their parents; the willingness of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the effect of changes in circumstances, including the effect of separation from either parent or another child; the practical difficulty and expense; the capacity of the parents; the maturity, sex, lifestyle, background of the child; the attitude to the child and responsibilities of parenthood demonstrated by each of the parents; any family violence; any family violence order that applies to a child or a member of the family.  If the order is a final order or the making of the order was contested by a person.

9. These are interim proceedings.  It cannot make a finding of fact on a disputed issue of fact so am left with the common ground evidence. The parties’ proposals set the scene. We know it is an agreed fact that T will be safe, unsupervised in the care of the mother.  That is what the father wants, both on an interim and final basis. To the extent that the father says the mother’s parenting is compromised, and he does say that, it isn’t such that would prevent her being the primary parent for T.

10. The same cannot be said for the father’s parenting. The mother does not contend today that either child is going to be safe unsupervised in the father’s care. It is only the father’s proposals that would leave the children with a meaningful relationship with both parents.  The mother’s proposal would have the father’s time very much circumscribed. It rules out equal time, it rules out substantial and significant time.  Substantial and significant time is time that allows children to be involved in the important aspects of parents’ lives, and vice versa. It is time that allows parents to be involved in both the daytime routines and week day routines and the weekend routines. 

11. The children have been subject to psychological harm.  That is an agreed fact.  The father says that, and there is some evidence to support his view, that the mother has struggled to manage J in the past.  There is some reference in the documents to whether J might have ADHD or a similar disorder.  I think it was said in the course of submissions that both parents rejected any pharmaceutical treatment for J. The parties sought assistance about it. They were referred to South East Sydney Health and there is some evidence of that body trying to follow up with the mother in relation to those issues. 

12. The mother says she has done something about those things through J' school. The mother says that the father deals with the problem by not addressing J’s homework difficulties at all.  The father says the problems go beyond homework and that the mother is consumed with the parenting task in relation to the older child and that does not leave enough time for J. 

13. The children are represented.  Their representative says it looks like both parents have enlisted the children to some extent inappropriately in their conflict. 

14. For reasons that he does not seek to explain except to assert that he was depressed, the father caused the mother and T to understand that he and J would be out of their lives indefinitely. He thought that he and J would benefit from a three week holiday. He took J to the airport on 6 July 2009. They were not allowed to leave as J had been placed on a watch list. At the airport he sent a letter, a video tape and a mobile phone to T.  In the tape he asserted that he was taking J to England indefinitely. He says that it was never his intention to take J to England. He says that at the time he was under considerable amount of stress. He wanted the mother to think he was going to live in England with J but that he did not intend to go to England.

15. It is said on behalf of the father that after agreeing to the children being separated the mother approached J’s school on a number of occasions. I am asked to assume that if she had been allowed she would have removed J from the school. Further, the father says that on the point of separation, the mother said that her intention was that she and children would live in Japan, presumably without him.

16. The Family Consultant says that the father has a history of suicidal ideation and intent, of being hospitalised in March 2009 and not seeking any further treatment. I assume that information came from the father. He doesn’t give any evidence about that. Separation can be very difficult and reading the parties’ affidavits it appears that each of them had a level of ambivalence about the separation, particularly the father. 

17. The mother says that what the father represents as him keeping the mother involved with J after separation should be seen more in the sense of him trying to keep tabs on her or trying to get back with her. The father concedes that he was very keen to pursue counselling.  The family consultant says:

    He is very focussed on the marital relationship and his very strong preference is that the parties attend counselling together with a view to reconciling.  The mother believes the relationship is over -

    and so on.

18. Incredible pressures are brought to bear at this time and it is often the case that children are put in harm’s way as a result of it. Parents can enlist children in issues about their separation – and that is unacceptable.  Children do not have any way at all of coping sensibly with responsibility for their parents’ relationship. In some tragic cases we even see circumstances where siblings  sacrifice themselves in the course of their parents’ separation and agree to be split from each other. There is no suggestion of that here.

19. It is trite to say that what the father did was a particularly cruel thing. I am sure he understands that. The harm cannot easily be undone. Adults get low at the point of separation, some become depressed, some clinically depressed. I do not have any way of assessing the father’s state in the absence of medical evidence but it is clear how he behaved. 

20. I am dealing with a narrow window of time.  The parents will be the parents of these children forever. I am dealing with a relatively short period and I need to try and keep these children safe until an expert can look at it the family and provide some assistance in terms of where the parents are up to, where the children are up to. Usually that would come from a Forensic Psychiatrist who will undertake an investigation of the children and the parents. Thereafter more sophisticated decisions can be made.

21. Until then my job is to be nervous about the children.  One form of stability they have is each other. It is unusual for the court to require that siblings be separated. It is no comfort at all in this case that the parties earlier agreed to separate the children. They both now say they were not thinking straight. The mother says she was completely overborne and afraid.  The father says he was depressed. In those circumstances, I do not see why one would depart from the normal approach of keeping the children together.

22. The real issue is about supervision of the father’s time.  The experience the father had under the earlier orders was as close as practicable to an unsupervised arrangement. His mother and her sister were available and he had overnight time. That did not involve the school week, but it was as normal as could be. However, his mother and sister have gone back to England. Any other people known to the parties that are not already enmeshed in the AVO proceedings are probably not keen to volunteer so the parties do not know of any individuals who could supervise and who they both trust.

23. I will continue a supervised arrangement for a period. As to how long that period should be, we know that the mother contemplates that if she has the security of a successful period of supervised time she intends that the father’s time be unsupervised and overnight.  Normally I would like to avoid the matter coming back on any sort of interim/interim basis, but I would not avoid it in this instance because of the unsatisfactory nature of supervised time.  So I think we put in place that for a period, I do not really mind whether we fix another date, say, in three months’ time to bring it back, or I leave it to the parties and the children’s representative to bring it back and tell me whether there should be some change to it.  

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate:

Date:  23 September 2009