BEST & BEST

[2013] FamCA 112

FAMILY COURT OF AUSTRALIA

BEST & BEST [2013] FamCA 112

FAMILY LAW - CHILDREN – Interim parenting – Whether the father’s time with the children should be recommenced – Whether the father’s time, if any, should be supervised – Best interests of the children in relation to their relationship with their father – Issues as to denigration of the mother by the father to the children – Issue as to the psychiatric state of the father

Family Law Act 1975 (Cth)

APPLICANT: Mr Best

RESPONDENT: Ms Best

INDEPENDENT CHILDREN’S LAWYER: Mr O’Dowd

FILE NUMBER: WOC 91 of 2010

DATE DELIVERED: 22 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 22 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr N Jackson, Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Michael Davies

MaGuire & McInerney Lawyers

Orders

1. That leave is granted to the mother to file her Response in Court this day.

2. That these proceedings shall be expedited.

3. That a Family Report shall be prepared for the assistance of the Court addressing the issues set out in s 60CC of the Family Law Act 1975 including the views of the children, their relationship with the father and the likely benefits and disadvantages of the father having unsupervised time with the children and any other matter the Family Consultant considers appropriate.

4. That the Family Consultant shall have leave to inspect any subpoena material where leave has been granted for the parties to inspect. 

5. That a single expert be appointed by the Court, upon the recommendations of the Independent Children’s Lawyer, to report to the Court on the psychiatric state of the father and his parenting ability.

6. That, until further order and on an interim basis, the father Mr Best shall spend time with the subject children C, L, V and O for two (2) hours each alternate weekend supervised at a contact centre nominated by the father and, approved by the Independent Children’s Lawyer in writing, at such times and dates as arranged by the contact centre.

7. That liberty is granted to the parties and the Independent Children’s Lawyer to restore the matter to the list upon giving forty-eight (48) hours notice in the event of any difficulty.

8. That the application in case filed by father on 1 January 2013 shall be stood over until Thursday, 28 March 2013 at 9.30 am for directions.

9. I note that this case also involves the re-hearing of the time the father is to spend with the children and an application for the father for interim orders as to the time he spends with the children and both are also stood over to 28 March 2013 for directions.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 91 of 2010

Mr Best

Applicant

And

Ms Best

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter came before me on Wednesday of this week in the judicial duty list.  Mr Best, the father, had brought an Application in a Case seeking to have the Orders made by Ryan J in this matter on 3 February 2012 set aside and replaced with the orders sought by him.  It emerged on Wednesday and today that there are, in fact, three matters before the Court.  In addition to the Application in the Case, there is a remitter of a matter from the Full Court of this Court on an appeal from Ryan J and an application for interim orders for time with the children.

2. On 1 February 2013, the Full Court set aside Order 4 made by Ryan J in its entirety and remitted the matter for rehearing.  Order 6.1 was also set aside but that is not material for present purposes.  Pursuant to the Orders of Ryan J, the children were to live with their mother, who was to have sole parental responsibility for their long-term care, welfare and development.  Order 4 dealt with the time that the father was to have with the children.  That Order had two features – firstly, it was graduated in that time with the children commenced at two hours per fortnight by way of supervised access at a contact centre through to overnight, unsupervised access over a period of time.  Secondly that Order was conditional upon the father continuing to receive psychiatric treatment from Dr D.

3. Before the Full Court was a report of Dr D dated 20 November 2011.  The Full Court was asked to admit that report by way of further evidence.  In paragraphs 231 and 232 of their Honour’s Judgment in the appeal, they said:

   231.Although the father’s appeal is to be allowed only to the limited extent we have earlier indicated, in these circumstances where the trial judge’s clear intention was that the father commence supervised time before unsupervised time and the children had spent very little time with the father, the proper course in our view is to set aside all of order 4 and remit for rehearing the matter of the father’s time with the children.

   232.The further evidence of [Dr D] will be relevant to such hearing and possibly other evidence contained in the father’s three further evidence applications.  The father should be entitled to bring, at first instance, an application to spend time with the children in the light of the disagreement in relation to whether he is now entitled to spend time with the children on an unsupervised basis.

4. Their Honours continued to say in paragraph 234:

   234. The absence of necessity or desirability for the father to continue to consult and personally attend upon [Dr D] or such other psychiatrists as [Dr D] may recommend is not, as the father would have it, a simple issue nor is it one which the mother and the ICL can be expected to accept on the basis of a report provided after the appeal has been heard which they are unable to test in any way.

5. The reference by the Full Court to Dr D’s report and its testing needs to be understood in the light of the fact that a number of experts gave evidence as to the psychiatric state of the father and the desirability or necessity for further treatment.  In the Court below Dr D’s opinions were not necessarily reflected in the opinions of the other experts.  The effect of their Honours’ Orders is therefore that the children live with their mother and that there is no time provided for the children to spend time with their father.  When the matter came on this morning, I expressed what I considered to be the desirability of the children to see their father and stood the matter down to see if the parties could agree on a regime.

6. The Independent Children’s Lawyer proposed a set of short minutes that would see, in effect, the resumption of Ryan J’s graduated proposal at step 2, that is to say commencing with unsupervised access each alternate Saturday from 9.30 am until 6.30 pm.  I understand the father not to have a substantial difficulty with that except that he has a difficulty with the fact that the time with him is suspended during school holidays.  The mother opposes those orders and says, at least for a time, access should be supervised.

7. It was a significant issue before Ryan J whether or not and to what extent the father had communicated inappropriately with the children, whether that communication had the effect of undermining the children’s relationship with their mother and trying to promote their relationship with their father.  As I have said, Ryan J made an order restraining the father from approaching the mother and the children or communicating with them.  Her Honour also made an order that the father was restrained from discussing or showing to the children any document relating to the proceedings.  Those orders were not set aside by the Full Court and remain on foot.  Similarly, I note that the Full Court did not set aside Ryan J’s Judgment and that her Honour’s findings of fact remain intact.

8. Annexed to an affidavit of the mother sworn 21 February 2013, is an email sent by the father to the child, L, on 11 February 2013.  I leave aside the issue of whether or not that is in contravention of any of the orders of the Court.  Contained within that email are the following separate paragraphs:

   Don’t ever forget I am doing everything I can to get you home. 

   I hope you do know that you are free to contact me at any time you wish, including phoning me, texting me, emailing me or even just getting on a bus to visit me if you would like.  There are no court orders or laws of any nature that say you can’t do that – despite what mum may say – you are free to come home at any time you wish and, no, you won’t get into trouble. 

   I am not sure if the ICL told you (… Davies) but I had court orders put in place that enabled you all to come home in the middle of last (2012) but mum point blank refused to comply with those orders. 

   But despite her refusal to obey court orders and no matter what she does or says – someway, somehow I will get you all home then we can get on with just being a normal family – that much I promise you.

9. It seems to me that this email is the very type of email that created significant concern with Ryan J and led to her coming to the view that, in the first instance, supervised access was appropriate so as to try and establish a regime of time being spent with the father, where there was not that kind of inappropriate communication.  I am concerned that the references to the mother and to coming home at any time indicate to the child that her home is somewhere other than where her mother is; it denigrates the mother and significantly invites the child to take the issue of the time spent with her father into her own hands by getting on a bus to see him.  I should add that L is presently 12 years of age.

10. The matter has, as I said, come before me in a judicial duty list.  The matter is obviously very complicated with a number of issues over which people have very strongly held views.  I have not had the opportunity to consider the substantial evidence in any detail and that will take some time.  It seems to me, and is recognised by the Independent Children’s Lawyer, that it is desirable that the children spend some time with their father.  Without going into the details of it, the issue of time spent with the father last year was fraught with difficulties leading to two contravention applications, one of which was the subject of an appeal.

11. In the first such contravention application, Rees J dismissed the claims of contravention by the father and that dismissal was upheld on appeal.  The Independent Children’s Lawyer has informed the Court that in his opinion supervised access is likely to remain fraught with difficulties.  Having regard to the history of the proceedings, I can understand that view and initially that seemed to me to be an attractive proposition.  However, I have to say that I am concerned by the email, to which I have just referred, and also the other emails attached to that letter, but it is particularly the email to the child.

12. It is very difficult in this list to do anything other than make some interim orders of a very short term nature.  I had considered whether or not I should simply try and expedite a hearing to be held as soon as possible on the interim custody issue, but it seems to me that it would be in the interests of the children to see their father sooner rather than later, albeit that that might be on a basis that is narrower than what might be found to be appropriate after further facts are known.

13. Because Ryan J heard this matter some considerable time ago, it was obvious that facts and circumstances have changed and I propose to order that a Family Report be prepared to address the issues raised not only by section 60CC of the Family Law Act 1975 (Cth), but in particular to look at the views of the children, the relationship with the father and the likely benefits and disadvantages, if any, of the father having unsupervised time with the children.

14. I also am going to order that a single expert be appointed by the Independent Children’s Lawyer, to provide a report to the Court on the psychiatric state of the father and his parenting ability.  It seems to me that once these two reports are to hand the Court will be in a better place to deal with the issue of whether or not there should be extended time spent with the father and whether that time should be on an unsupervised basis.

15. However, in the interim, having regard to the detailed findings of Ryan J, which remain on foot, and trying to do the best I can to ensure that the children see their father, but without taking any steps that might, in effect, determine the interim parenting hearing, I propose to make an order that the father have supervised time with the children.

16. The purpose of that time is to enable the children to see their father and to commence to re-establish a relationship with him.  A significant change in time spent with the father is something that will obviously, in my opinion, take some period of adjustment for the children.

17. I will note for the purpose of the transcript that at 2.46 pm the father left the courtroom.

18. I regard this order as very much a stopgap order, but it seems to me that it is in the interests of the children that the time the father spends with the children not be time that he spends denigrating the children’s mother, trying to undermine their relationship with her or trying to manipulate them into his point of view and that is the purpose of the supervision.

19. The email he wrote to L is very recent and, in my view, quite troubling and I would be concerned if such behaviour were replicated when the children spend time with him.  Therefore, notwithstanding the view of the Independent Children’s Lawyer that it is such time spent with the father might be unworkable, as an interim stopgap order that is all I am prepared to grant at the moment.

20. I should add that one of the things that would, no doubt, be considered, is the relationship of the parties and to the children as manifested by the manner in which they attempt to comply with the orders of the court, which the court is making in its view is to the best interests of the children. 

21. I make the orders as set out at the commencement of these reasons for Judgment.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 22 February 2013.

Associate:     

Date:              26 February 2013