Bookhurst and Bookhurst (No. 2)

[2008] FamCA 673

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST (NO. 2) [2008] FamCA 673

FAMILY LAW – CHILDREN - best interests - family violence - risk

Family Law Act 1975 (Cth)

APPLICANT: Ms Bookhurst

RESPONDENT: Mr Bookhurst

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: SYC 1832 of 2007

DATE DELIVERED: 11 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 11 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: D Hausman

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: G Johnston

SOLICITOR FOR THE RESPONDENT: Denes Ebner Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: A Connor

ORDERS

1. That Orders 1(a), 1(b) and 2 made 1 August 2007 are set aside.

2. That the three children of the marriage L born … November 1997, D born … June 1999, and S born … December 2000 (“the three children”) spend time with the father for four (4) consecutive hours weekly commencing at noon each Saturday under the supervision of his partner Ms Z.

3. That for the purpose of parental change-over in accordance with these Orders the mother shall deliver the three children to the outside of the father’s premises at the commencement of each relevant period on the basis that they are met by Ms Z AND at the conclusion of such periods the three children are returned to the care of the mother outside those premises by Ms Z.

4. That such further or alternative periods of time on a supervised basis by Ms Z may be spent by the three children or any of them with the father as the parties may agree upon from time to time in writing.

5. That the first occasion of supervised periods of time with the father take place from 12 noon on 12 July 2008.

6. That the father notify the mother as soon as possible in the event that the supervisor, Ms Z is unavailable to attend for any particular period of supervised occasions as referred to in these Orders.

7. That an order is made in terms of Order 3 of Exhibit A being the Minute of Orders sought by the mother as follows:

   “3.That the father be restrained from approaching or attempting to approach the children other than as provided in these Orders.”

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC1832 of 2007

MS BOOKHURST

Applicant

And

MR BOOKHURST

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings application to discharge or vary current interim parenting orders is made by the mother pursuant to her Application in a Case filed 9 July 2008.

2. Pursuant to that application the mother seeks orders that future periods of time that the three children spend with the father take place on a supervised basis at a Sydney contact centre in the metropolitan area nominated by the independent children's lawyer for periods not exceeding four consecutive hours weekly, occurring on either a Saturday or Sunday.

3. In addition an injunction is sought restraining the father from making contact or attempting to make contact with the three children other than as provided in the orders.

4. An affidavit in support of the application was sworn and filed by the mother on 9 July 2008.

5. In addition the mother relies upon Exhibits A, B, and C.  Those exhibits are:

   (a)a minute of order sought by the mother which in substance is the same as her application except that it provides more detail regarding supervision as well as an order being sought that the first occasion of supervised time be on 23 August 2008;  and

   (b)Exhibit B and C are the supplementary expert report by Associate Professor Q and a copy of her notification that she made to the NSW Department of Community Services as a mandatory notifier due to the concerns she has in relation to the father allegedly being physically and emotionally abusive towards the three children or any of them.

6. The father has relied upon two affidavits each sworn on 11 July 2008; one affidavit being sworn by him and the other by a neighbour, Dr R. In addition, the father has relied upon the oral evidence given by his partner Ms Z.  The deponents of the affidavits, with the exception of the parties, were cross-examined.

7. I also heard further oral evidence from Associate Professor Q.

The proceedings

1. The issues became more contained during the course of the hearing before me today.  Ultimately, the father’s position was that without admissions he was prepared to submit to an order for supervised periods of time, principally conducted through the supervision of Ms Z.  The mother for her part accepted that Ms Z, on an interim basis, was a suitable supervisor.

2. Consequently, the question of whether or not Dr R should be accepted as a suitable supervisor no longer remained at the forefront as became apparent during the course of counsel’s submissions.

3. The independent children's lawyer also supported supervised periods of time where the supervisor would be Ms Z.  Having heard the evidence given by Ms Z, I am satisfied that generally speaking she would carry out her role as a supervisor, notwithstanding some misgivings that I have had.

4. Those misgivings have been centred upon the difficulties which would potentially arise due to her past and current close relationship with the father and the personal issues that have arisen between them, including but not limited to, the father being apparently unable to control himself from shouting at Ms Z in the presence of the three children and her own child.

5. No doubt, all the parties in these proceedings have suffered from the stress of this litigation, and in particular, difficulties that the three children (especially the eldest child) have been experiencing as set forth in the two expert reports prepared by Associate Professor Q.

6. As a result, there is some concern so far as I can appreciate from the evidence, as to whether the father will now have sufficient control to conduct himself in a way which is suitable for young children, that is without losing his temper and/or shouting at Ms Z and/or any of the three children.  Equally important, is whether Ms Z will have sufficient fortitude and commitment to terminate any periods of time the three children are spending with the father should he unfortunately embark upon that type of behaviour.

7. Those concerns, must be balanced against the emotional difficulties for the three children in not spending periods of time with the father pending the final hearing which is due to take place during November 2008.

8. I accept Associate Professor Q’s evidence that it would be adverse to the three children if they did not continue to spend periods of time with the father.

9. Given that my primary focus must be on the best interests of the three children, notwithstanding the difficulties which this situation has created in terms of the evidence, I have decided that it is more advantageous for the three children to continue to see and spend particular periods of time with the father under supervision with someone who they have a friendly and comfortable relationship with, than not spending any periods of time with him at all.

10. I have taken that approach notwithstanding the potential disadvantages or concerns that I have in relation to Ms Z being able to properly control supervised periods of time, not to mention of course the father being able to so relate to the three children and conduct himself generally that tensions, pressure and anxiety are not further exacerbated so far as the three children are concerned.

11. One would expect with a further hearing to take place, albeit not for another four months, that strenuous efforts would be made by the father to ensure that the manner in which he relates and takes part with the three children in these periods of time and his conduct in general should be beyond reproach.

12. The further issue that remains for determination is the periods of time that the three children should spend with the father.  Pursuant to the current interim orders made 1 August 2007 provision is made for the periods of time to take place each Wednesday from 5.30pm until the commencement of school the next day and each Sunday from 4.00pm until the commencement of school on the following Monday morning, except for alternate weekends when the relevant period of time is from 9.30am Saturday until the commencement of school on the following Monday.  Those arrangements are to apply during school terms.  During school holidays the relevant periods of time pursuant to those orders was from 9.00am Sunday to 9.00am Tuesday each week.

13. Ms Z impressed me as a thoughtful and responsible young woman who gave her evidence in a frank and reliable fashion.  She clearly had to give some thought to her own personal commitments, including time to be spent with her child, notwithstanding that on the evidence before me; her child has a good relationship with the three children the subject of these proceedings.

14. Clearly, this year Ms Z has had a more distant relationship with the father than was previously the case.  Ms Z explained that distance on the basis of the stress that both she and the father had been experiencing due to the issues raised in this litigation and implicitly their individual reaction to that stress.

15. It has been submitted quite properly by Mr Johnston on behalf of the father that the period of time the three children spend with the father should not be curtailed given the comfortable relationship the three children have with Ms Z, and Ms Z on the other hand being a responsible adult who has shown appreciation of her responsibilities as a potential supervisor.

16. The independent children’s lawyer submitted that there should be the period of time sought by the mother, namely four consecutive hours weekly on a Saturday and in addition an overnight period during the week.  It was submitted on behalf of the mother that the period of time should be as set forth in the minute of order being sought by her, being Exhibit A.  Exhibit A does not make any provision for overnight periods to be spent by the three children with the father.

17. As in all parenting proceedings where issues are raised in terms of the fragility of a young child against a background of alleged abuse and the need at least on an interim basis for supervision, I prefer to take the approach which minimises risk rather than maintains the potential at a higher level.

18. The risk in this particular case is that unless there is confidence of supervision being able to be applied on a realistic basis throughout the period of time that the three children are with the father then that risk should be avoided if possible.

19. I am not confident that Ms Z would be able to provide the level of supervision that is obviously desirable should the three children spend overnight periods with the father.

20. I accept the submissions made by the independent children’s lawyer that from the three children's viewpoint as opposed to the viewpoints that each of the parents may have, a period of time weekly of four hours commencing at noon on Saturday is one which is likely to potentially, in any event, provide less strain for the three children, especially the eldest child, and also should be able to be managed by the father and Ms Z with minimum strain so far as each of them is concerned.

21. I have also taken into account in accordance with well established authority, the evidence which is implicit at the very least of the mother’s genuine concern and anxiety for the three children in the care of the father, even under supervision in terms of there being a pattern of periods of time which gives confidence that he will be in control of his temperament so far as the three children are concerned throughout those periods.  That is a factor which must be taken into account unless there is evidence to suggest that this worry or concern is a contrived one for the purpose of the litigation.  There is no such evidence before me; indeed the overwhelming evidence is to the contrary.

22. Consequently, I will make the orders as I have indicated.

23. So far as supervision is concerned, each period of time which is to be exercised by the father will be required to be supervised throughout by Ms Z unless the parties otherwise agree in writing, and at the commencement of changeover in terms of the three children being delivered by the mother to the father's premises, they will be required to be met by Ms Z as well as at the conclusion of the relevant period of time it is Ms Z and not the father who will deliver the three children into the care of the mother.

24. Of course the parties are free to make alternative arrangements should they wish to do so and any alternative arrangement given the intensity of the litigation must be confirmed in writing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate:  

Date: 14 August 2008