Bouras and Bouras and Anor (No. 4)

[2007] FamCA 1267

FAMILY COURT OF AUSTRALIA

BOURAS & BOURAS AND ANOR (NO. 4) [2007] FamCA 1267

FAMILY LAW – CHILDREN – With whom a child spends time – Orders

Family Law Act 1975 (Cth)

APPLICANT: Mrs C Bouras

FIRST RESPONDENT: Ms E Bouras

SECOND RESPONDENT: Mr Bouras

INDEPENDENT CHILDREN’S LAWYER: Maria Barbayannis

FILE NUMBER: MLF 68447 of 1980

DATE DELIVERED: 14 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Carter J

HEARING DATE: 14 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms R Stoikovska

SOLICITOR FOR THE APPLICANT: Berger Kordos

COUNSEL FOR THE FIRST RESPONDENT: Mr J Williams

SOLICITOR FOR THE FIRST RESPONDENT: Mason Sier Turnbull

THE SECOND RESPONDENT: In Person

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: Ms Pandeli

INDEPENDENT CHILDREN’S LAWYER: Maria Barbayannis

Orders

1. The mother spend time with and communicate with the child, M, born … May 1998 as follows:

   (a)each alternate Saturday, between 2:00pm and 4:00pm, commencing as soon as may be arranged at an agreed location;

   (b)the time referred to in paragraph (a) hereof shall be supervised by Ms G, who shall provide a report in respect to such supervision upon request from the Independent Children's Lawyer.

2. The Independent Children’s Lawyer write to Ms G to explain her role prior to commencement of time being spent with the child.

3. The question of costs of the supervision be referred to the Judicial Duty List at 10:00am on 1 November 2007.

4. Save for the question of the costs of supervision, the proceedings between the husband and the wife seeking alteration of interests in property and/or financial relief be severed from the proceedings between the husband, the wife and Ms E Bouras in respect of parenting orders in relation to the child, M.

5. Within seven days, the wife file a further Amended Form 1 Application limited to financial relief.

6. Within 14 days, the husband file:

   (a)       a further Amended Form 1A Response limited to financial relief;

   (b)       a Form 13 Financial Statement.

7. Within 14 days, the husband file:

   (a)any Form 2A Response to the wife's Amended Form 2 Application filed 7 September 2007 upon which he seeks to rely;

   (b)       any affidavits on which he seeks to rely.

8. Paragraphs 11, 12, 13, 14, 15, 16, 17 and 18 of the wife's Amended Form 2 Application filed 7 September 2007, together with any Response filed the husband, be adjourned to the Judicial Duty List at 10;00am on 1 November 2007.

9. The question of additional time being spent by M with the wife be further adjourned to a date to be fixed and advised to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 68447 of 1980

MRS C BOURAS

Applicant

And

MS E BOURAS

First Respondent

And

MR BOURAS
Second Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings and accordingly, I must apply the provisions of Pt VII of the Family Law Act 1975 (Cth). Pursuant to s 65DA(1), the Court may make such parenting orders as it thinks proper, subject of course to the presumption of equal shared responsibility referred to in s 61DA and also to s 65DAB which concerns parenting plans.

2. By virtue of s 65D(2), the Court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, again subject to s 61DA and s 65DAB.

3. In the present case, orders were made by consent on 29 June 2007.  Pursuant to those orders, M, who was born on … May 1993, (“[M]”), changed her place of residence from that of her mother, Mrs C Bouras (“the mother”), to that of her older sister, Ms E Bouras.  Ms E Bouras is one of the respondents to the present application and I will refer to her as “the first respondent”. The other respondent is Mr Bouras.  He is M's father and I will refer to him as such.

4. According to her applications, the mother seeks, amongst other things, that all previous orders relating to M be discharged and that M live with her.  Another order that she sought was for a Family Report to be prepared.  Notwithstanding that these orders were sought in each of the amended applications filed on behalf of the mother, I was told for the first time today that the mother did not seek an immediate change of residence but sought that a Family Report be prepared and, presumably dependent on the outcome of that, then the application would be pursued.

5. The legislation does not contain any provisions which indicate how or in what circumstances orders should be varied or discharged in circumstances such as this.  However, there is significant case law about it.  It is well established that the Court should not lightly entertain an application to reverse an earlier order such as the one in this case, but the decision in Rice & Asplund (1979) FLC 90-725 is often cited in support of that. In that case, the then Chief Justice, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, set out the relevant principles.

6. That decision is supported by subsequent Full Court authority.  One of the most recent decisions is Edwards (2006) FLC 93-306, a decision of a Full Court comprising Finn, May and Boland JJ, who delivered judgment on 22 November 2006. Commencing at par 109, their Honours gave extensive consideration to Rice & Asplund and some other relevant cases, turning firstly to F & C & the Child Representative (2004) FamCA 568, in which case the Full Court had reviewed the principles in Rice & Asplund.

7. The principles were extensively reviewed in F & C and Child Representative (supra).  There, the Full Court said:

   ‘38. The principles that have been developed by the Full Court in such applications are well settled.  In Rice & Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:

   “The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”

   …

   40. Nygh J, with who [sic] Evatt CJ and Burton J agreed, said in F & N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.

   …

   44. Most recently, Collier J, when determining an appeal from a Federal Magistrate in King & Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought.  We agree with his Honour’s view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments.  His Honour correctly observed at 88,367-88,369:

   “41.     The rule in Rice & Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or … at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.

   42.A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges.  To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.

   43.It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett & Bennett (1991) FLC 92-191).

   44.To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.

   …

   49.Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.

   50.In D & Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.

   …

   62.What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.

   …

   64.… the purpose of the rule is to protect the children from exposure to further unnecessary litigation.  …” ’

8. Also apposite in this case is the caveat placed by the Full Court on Collier J’s discussion in King &  Finneran (2001) FLC 93-079 having regard to the judgment of the High Court in CDJ & VAJ (supra) at 204. The majority in F & C and Child Representative (supra) referred to this ‘caveat’ as follows:

   ‘45.Although this point was not argued before us it may be that there is need to add a caveat to Collier J’s view that it may be sufficient to allow a fresh application to proceed if there is a “real likelihood that a change may follow”.  In CDJ & VAJ (1998) 197 CLR 172 at 204; FLC 92-828 at 85,449; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:

   “[117]The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare.  The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better ‘custodian’ of the children:  sometimes either parent would be an excellent choice, and often neither would be ideal.

   [118]The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations.  So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind.  The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.” ’ ”

9. As can be seen, their Honours referred to a decision of the High Court in CDJ & VAJ (1998) 197 CLR 172 in the sense that they felt that a caveat had been placed on certain of what Collier J had said in King & Finneran (2001) FLC 93-079. CDJ & VAJ of course was not a Rice & Asplund type of case;  it was on the question of whether fresh evidence should be permitted on appeal and as such, as has been pointed out, provides probably only helpful guidelines.  It is important I think to repeat par 118 of CDJ & VAJ:

   “The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare.  In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations.  So too the public and private interest in the finality of litigation must be given some weight, even in cases of this kind.  The important private interests of children are unlikely, save in special circumstances to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.”

10. Some 10 years earlier, I might say, Strauss J had made similar observations in the case of Freeman (1987) FLC 91-857 his Honour was speaking as a member of a Full Court. He said commencing at p 76-470, after citing, amongst other cases, Rice & Asplund:

    “The welfare of the children is in this case, as in any others, concerning custodial arrangements, the paramount consideration.  But once the Court, either after a full hearing or by a consent order has settled the question of custody, it is usually in the interests of the children that the order made by the Court is treated as determining the dispute and be given the necessary support.  Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.  Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing custodial arrangements brought about by the order.  Each case must depend on its own facts but as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.”

11. So there needs to be a balancing obviously of the best interests of the children and private interests, as well as finality for litigation.  The situation was succinctly summarised in par 111 of Edwards:

    “[111]The well settled principles in Rice & Asplund (supra) were formulated to promote the best interests of children who are the subject of proceedings under the Act.  The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews.  Whilst finality of litigation is a desirable object, it has long been recognised that orders which relate to the welfare of a child and which require the child’s best interests to be the paramount consideration, can never be final, and that further applications can, and should, in an appropriate case, be made to and determined by the Court.  In many instances it will be appropriate that some applications should be dealt with on a threshold basis.  In other cases the threshold question should be determined as part of the overall proceedings.”

12. I have determined that the matter should be dealt with as a preliminary issue.  I invited any submissions to the contrary to be made but there were none.

13. In the present case, it is for the mother to provide evidence which is sufficient to justify the orders being revisited.  The first respondent and the father do not bear the onus of satisfying the Court that the current orders should be continued in force (see par 42 of F & C and the Child Representative citing with evident approval the Full Court’s decision in Saad (1993) FamCA 92-332 at p 79-519).

14. The change of circumstances relied upon by the mother are as follows:  firstly, that M ran away; secondly, text messages and the nature of text messages sent to others, including the mother's solicitor, Mr Kordos; thirdly, communication and the nature of communication with Ms A.  It is her position, as I have said, that M’s current views and wishes should be assessed in a further Family Report.  She does not, I repeat, seek an immediate change of residence.

15. The Full Court said in Rice & Asplund that the Court should have regard to any earlier order and to the reasons for and the material on which it was based.  While there were Reasons for Judgment given at the time the orders were made, they do not assist greatly in this regard because the orders were made by consent.  Some, however, bear mentioning.  My Reasons for Judgment of 29 June 2007 set out sufficiently the full background to this case and I certainly do not propose to repeat that.  It also sets out how the matter started and proceeded and what happened as time went by.

16. In par 35 of my Reasons, I was discussing certain matters and making certain observations in respect of this family and I said this:

    “Secondly, I have no doubt that unless [M]'s living arrangements were changed, she would not have had the opportunity of a relationship with the father or her sisters.  Living with her sister, the applicant, will however provide this, whilst not preventing the continuation of a strong and beneficial relationship with her mother.”

17. At par 36, I said:

    “Thirdly, whilst accepting that the mother can provide and has provided well for [M] on a physical basis over the years, her ability to cater for her emotional needs is questionable at best.  One has only to make reference to Ms [B]'s report, and in particular, the second report, to understand this.  By comparison, the applicant and other members of [M]'s family will, I am confident, care for all of [M]'s needs, be they physical, emotional or educational.  Her life will be richer and more fulfilling.  That is not to say that the applicant and others are unrealistic in their understanding of the difficulties confronting them; indeed, quite the reverse is the case.”

1. As to the material which was before the Court at the time, that is also listed in the judgment as well as some of the evidence which were before the Court at the time.  It is relevant in the circumstances to turn to Ms B's third report which was also before the Court. In doing so, I remind myself, as I did in the Judgment of 29 June 2007, that Ms B had not been cross-examined.

2. On p 7 of that Report which is dated 22 February 2007, and which is annexed to Ms B’s affidavit dated 28 March 2007, some of the background is set out.  A report had been previously prepared in this matter concerning M, who was at that stage 13 years and nine months of age.

   “There continued to be a number of re-emerging allegations and issues of dispute which now include contravention of court orders.  Further testing of the evidence and determination of facts will be an important consideration in this current dispute.”

3. Subsequent to the earlier report, orders by consent were made in the Family Court on 12 May 2006. These orders started a graduated parenting plan to include time spent between M with her father and two sisters, commencing with five-hour blocks from 3 June 2006, increasing to one overnight stay each alternate weekend.  The husband and sisters reported that they saw M on two occasions and no overnight time was spent with their sister.

4. In November 2006 there was a contravention hearing and new orders were made to allocate two out of three weekends for the father and sisters.  Again, these orders were not complied with.  Since the Court hearings of May 2006 and November 2006, M had very limited time with her father and two sisters.  The father and sisters lost confidence in the mother's ability to facilitate and support a relationship between M, her father and sisters.  The oldest daughter, Ms E Bouras, who was the applicant in the previous proceedings, sought that M live with her and her husband in W and spend generous weekend and school holiday time with the mother.

5. Commencing at p 21 of that Report, Ms B set out her summary, opinion and recommendations.  I do not propose to read all that she said there but I do highlight what she said on p 22.  It is in the fourth paragraph of that page:

   “The mother is a very emotionally influential and powerful parent in [M]’s life and this impacts heavily on any chance of [M] rightfully reconnecting with other family members.  In the presence of the father, sisters and the writer, [M] stated that she would ‘like to give it a bash’ in response to the proposal that she lives with [Ms E Bouras] and [Mr S]

   (who is her husband)

   and sees her mother some weekends and school holidays.  Conversely, in the presence of her mother and the writer, she tearfully states, ‘I will see them once a month.’  The child is becoming emotionally exhausted by these proceedings to the point that she has been taken by ambulance to the [N] Hospital with a stress-induced migraine headache.  Research into childhood depression suggests that depression is a commonly occurring illness which frequently manifests in physical symptomatology.”

6. At p 23, Ms B wrote:

   “[M] clearly states that she feels responsible for her mother.  The impact of the enmeshed mother/daughter relationship upon [M]'s present and future interpersonal development may be profound.  [The mother]’s anger towards her husband and elder daughters appears to the writer to have driven her into the enmeshment with [M] which is not psychologically healthy for either mother or daughter.  The mother is convinced of the elder daughter's wish to kill her.  It was the writer’s most recent observation that [M] is intolerant of some of her mother’s opinions and in refuting them, became disrespectful in her attitude.”

7. At p 24, Ms B responds to a request which was part of one of the orders made for her to specifically examine and report upon certain matters, the first of which was M’s wishes for the fighting and litigation to cease:

   “If the situation is not resolved, [M]’s already frail and vulnerable psychological health and wellbeing will be placed at further risk.”

8. It was known at the trial that the transition and change of residence would not be an easy matter.  It is significant also perhaps to refer to what the mother had said in her trial affidavit which was before the Court at the time.  It was sworn or affirmed on 28 May 2007 and filed the same day.  In par 17 in the section headed “Best Interests of the Child”, the mother deposed:

   “It is in [M]’s best interests to continue living with me.  She has always lived with me and I am the only principal homemaking parent that she has ever known throughout her life.  If she was forced by court order to live with someone else, then this would cause considerable distress and upset to her.  I believe that she would be so upset that it would cause her significant psychological harm.”

9. In par 25, in speaking of the views of the child, the mother deposed:

   “[M] is very mature for her age and has a strong sense of independence.  She is able to actively voice her opinions on many subjects, including what she thinks about these Court proceedings.  She has told me on many occasions, ‘Mum, I don’t want to live with [Ms E Bouras],’ and, ‘Mum, why are they forcing me to do something I don’t want to do?’ ”

10. In par 28, the mother deposed:

    “I have not pressured [M] to take sides in relation to the Court proceedings.  [M] has said to me of her own accord that she does not want to live with [Ms E Bouras].  She said to me that the Court will have to handcuff her to make her go.”

11. In par 29, she went on to say:

    “Without my knowledge, [M] wrote a letter to the Court, stating her feelings about the proposal that she live with [Ms E Bouras].  I was not aware at the time but later found out that she had told me she was going to the shops for something and had found a shop to fax her letter to the Court for her.”

12. In par 41, under the subject heading “Likely Effects of Changes in the Child’s Circumstances”, the mother deposed:

    “I understand that [Ms E Bouras] is seeking orders that [M] live with her.  This would cause extreme distress to [M]. [M] has stated on several occasions that she does not even want to stay overnight at [Ms E Bouras]’s house for one night.  If Court orders were made that [M] had to live with [Ms E Bouras] full-time, then I think this would absolutely crush her.”

13. In par 62, the mother deposed:

    “I believe that it is evident from the report -

    (that is, Ms [B]'s report)

that if [M] is forced to live with [Ms E Bouras], this will cause her great distress and emotional harm.  While I do believe it is important for her to have a relationship with her father and sisters, I believe that taking her away from her home with me will cause her immense psychological harm and severely damage her relationship with not just only me but also her sisters and father.”

1. Having deposed to that, and with  full knowledge of the report of Ms B, the orders were consented to.

2. In the first affidavit in the current proceedings which was filed on 27 July 2007, the mother set out a little of the background to the events which commenced to lead us back to Court.  In par 5, she described how, on the morning of Thursday, 28 June 2007, M had gone to school, knowing the Court proceedings were continuing but expecting as usual she would return home and see her mother at the conclusion of the school day.  Due to the orders made on 28 June 2007, M was prevented from doing this.  I pause there to say that is correct.  The reasons that I did that are on the Court file.  The mother went on to say in par 6:

   “I was aware that when [M] left her school at [F School] on Thursday, 28 June 2007, she was unaware that she would be changing residence and schools.”

3. That of course would also be correct.  She then said in par 7:

   “For the reasons outlined above, I was worried about [M]’s wellbeing and emotional state as she had not even been allowed to return home to collect her personal belongings and clothes or to say goodbye to me.”

4. Again I make reference to the very short Reasons for Judgment I gave on 28 June 2007 and which were somewhat expanded upon in the Judgment the following day.  Notwithstanding that those orders required M to have the benefit of an explanation by qualified and independent persons as to what happened and why, the mother went on to say in par 8:

   “On the evening of 29 June 2007 -

   (that is two days after she has changed residence and one day after the order)

   at about 6:00pm, I rang [M] to see how she was and explained the Court orders to her.”

5. I omit the balance of that paragraph.  In the next paragraph she said:

   “I was on the phone to her for about 10 minutes.  She cried for most of that time.  She told me she wanted to come home.  I told her everything would be fine as I would see her soon, being the following Friday.”

6. M, as we know, ran away without notice being given.  It is by no means certain who assisted her.  She was taken in a car.  The mother’s evidence has been that she does not know who the person was who drove M there. The first respondent has given certain evidence as to a conversation with M in which she was told that a person called L, who is a person who engages in considerable texting activities with M, was the person.  That does not matter for the purposes of the proceedings today.

7. Arrangements were made between the parties’ solicitors for M to be returned by her mother on 16 July 2007.  That did not happen.  It is relevant to read what the mother says about the actual events at the McDonald’s restaurant on that occasion.  She said she took “witnesses” so that they could verify what was happening because she was very sick of being blamed for M’s conduct.

8. In the whole of the time as described by the mother in her affidavit, she said not one word about doing anything to fulfil the purpose for which M had been brought there, and when one looks at Mrs P’s affidavit, she being one of the “witnesses”, the same thing can be seen, save for what appears to be at the very end of the discussion; the mother attempted to comfort M because she was upset.

9. There is some disparity between the evidence of the mother and the evidence of Ms A as to certain events which of course I cannot determine in the circumstances of this case but which nonetheless should be recorded.  Ms A is the Head of Campus at the school M previously attended.  I was quite fulsome in my gratitude to her in the earlier proceedings because of the way in which she assisted M, as I had understood it, and certainly she brought her to Ms B's rooms.

10. Ms A's affidavit was sworn on 9 August 2007 and filed on 10 August 2007 and it is an affidavit on which understandably the mother, through her counsel, Ms Stoikovska, places great reliance.

11. According to the mother’s affidavit, she took M to F School the day after M had run away on the first day of term (which was the Tuesday morning) because M wanted to attend there.  They went to the Principal’s office but when they got there, M is said to have told Ms A certain things which were that she did not want to go with her sisters, that is why she left, “Nobody respects me and nobody understands me”  She said M was crying in Ms A’s office and Ms A asked M to go to class and said, after M left for her class, “I wish one day this problem will finish because it’s giving [M] so much trouble.”

12. Just to go back a moment, in par 24 of her affidavit, the mother has deposed that on the day after the running away which would have been the Monday, M spoke to the principal of F School, Ms A.  Accordingly to Ms A's affidavit, however (see par 40), she heard nothing further of M or her family after 28 June 2007 until 17 July 2007 which was the first day of Term 3. No mention is made of a phone call on the day before.  She says that on that day, M and her mother arrived at the school.  At that time she was unaware that there were Court orders that M was to live with her sister.  The mother explained this to her and said that M had been living with her sister since 28 June 2007. This was a surprise to Ms A because it was completely contrary to M’s wishes and she said she thought the Court would have been informed of this. The Court was of course informed of M’s wishes.

13. The mother explained that M had turned up at her doorstep late at night and had been with her ever since.  There is a modest difference, which may or may not be significant, additionally in that in par 47, Ms A says that the mother was teary and agitated and asked her if M could go to school that day, to which Ms A replied “yes”.  However, according to the mother, (see par 30), it was Ms A who asked M to go to class and made the comment to which I have already referred.

14. There is a further disparity which is convenient to mention at this stage.  The chronology in Ms A’s affidavit appears to be in error.  Again, I cannot be certain what, if anything, follows from that.  But when Ms A describes M coming to school on 17 July 2007, she goes on to say that M attended school again on the following Wednesday and Thursday - one can only assume that she is talking about the 18th and 19th - but she has mentioned that she did not come on the Friday - again one would assume that would have been the 20th - and on that day, par 57, the mother then came to the school and told her that three policeman had arrived the night before to take M. She explained some of the circumstances to her.

15. The mother of course has said in her affidavit, par 34, that M went to school on Tuesday, Wednesday, Thursday and Friday, but significantly, the recovery order was not issued until later than that, in fact the following week.  It was issued on 25 July 207 which was a Wednesday and it was executed on Thursday, 26 July 2007.  Again, what one makes of that, I cannot be sure.  I add, however, that none of this is to be taken as any decision or determination or even suggestion that Ms A has attempted to mislead the Court.  But there is a discrepancy and I do not understand it.

16. Going back to the mother’s first affidavit, that is, the one sworn and filed 27 July 2007, in par 37, she said:

    “As a result of recent events, I have realised that it was a mistake to consent to [M] living with [Ms E Bouras].  I thought that things would settle down but they have never been this bad.  There has been a major change in circumstances since the orders were made on 29 June 2007.  [M] has refused to leave me and forcing her to live with [Ms E Bouras] is not in her best interest.  [M] has told me several times that she feels like she is not being listened to and therefore nobody loves her, and her suicidal thoughts, although I hope not real, are of a great concern.”

17. The mother is quite correct when she says things did not settle down.  The mother was powerless, she says, to persuade her daughter to return to her older sister.  It is pointless to attempt to determine why M behaved the way she did.  It is also not possible, given the way the case has been of necessity conducted, but it is fair to say that some of the text messages sent to her would not have assisted.  For example, advice from the mother's solicitor about a court date and proceedings, however well meaning, was to my mind inappropriate.  Advice to M that her messages would be passed on to the Independent Children’s Lawyer could not have helped, given that the Independent Children’s Lawyer was discharged on 29 June 2007 and may well have resulted in M becoming further concerned.  Messages from a person called L, making reference to “mum” was obviously a reference to M’s mother.  A message from a person called R, telling M that her mother was very sick with her heart.  A further message from L inquiring how M had gone ringing the Child Protection Centre, going on to say:

    “Remember you must do this for things to get better.  Don't rest the way things are.  It’s -

    (and then the message appears to be continued)

    only going to have a bad outcome for you soon enough.”

18. The involvement of Mrs P in what proved to be an aborted attempt to have M return was also to my mind unfortunate.  I have described that already, but there is no reference to the mother doing anything to indicate to M that she embraced the orders and that M should also do so.  It must be recalled that the purpose of that meeting was for the mother to return M, full stop.

19. M’s wishes or views to my mind have not changed since she saw Ms B and since her mother deposed to them in her own evidence in her trial affidavit.  They have become a little more - and I am not minimising it in any way - of concern because of the threats of self-harm.  The child’s needs - psychological needs, that is - are being addressed both at school, in the sense of a school counsellor, and with another qualified person.

20. I want to turn back just briefly now to what Ms B also said in her third report which is before the Court.  At the bottom of p 23 and continuing over to the next page, speaking of Ms E Bouras’s proposal, Ms B wrote:

    “The sister’s application appears to have considerable merit.  However, the writer has grave concerns that the mother will accept the proposal as an order of the Court and will continue with appeal litigation or simply continue to make the child unavailable at changeover.  The mother has indicated that she intends to take this case to the Supreme Court which tends to contradict her insistence that she encourages [M] to have a relationship with her father and sisters.”

21. I have already referred to CDJ & VAJ.  I want to repeat one part of par 118; that is to say:

    “In all but the most ideal of circumstances, some time will be taken by children to adapt to the different situation.”

22. It is clear that the circumstances of this case are not by any means “ideal” circumstances. What M needed and still needs was time to adapt and permission from her mother.

23. I also want to go back to par 150 of what was said in CDJ & VAJ.  I repeat that there are distinctions, as was noted in F & C and the Child Representative, between the considerations bearing upon the receipt of further evidence and the principles relevant to the reopening of a case, but nonetheless, as the Full Court said, considerations might well be borne in mind:

    “In some exceptional cases - those concerned with allegations of physical or psychological abuse of a child are an example - it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing, even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result.”

24. (I highlight the next matter):

    “In such cases, it may be enough that the Court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional.”

25. To my mind, this is not one of those exceptional cases.  M’s behaviour was and is of concern. It is being addressed.  Thankfully, there has been no further running away.  Her wishes have not changed, in the sense that she clearly wanted to live with her mother and to spend time only with her father and her sisters.  I remind the parties that what M’s wishes as reported to Ms B were, that was also for the fighting and litigation to stop.

26. For all of those reasons, having regard to the principles and in particular, M's best interests, the applications of the mother, both in Form 1 and Form 2, are summarily dismissed. There remains, however, the question of where, when and in what circumstances M should commence to see her mother.

Discussion

1. I am not in a position to make an order that any one person or any other person should pay the costs of supervision.  I have information about Ms E Bouras’s financial situation, not on oath but only in the sense of costs submissions.  I have evidence as to the mother’s financial circumstances; I do not have any evidence about the father’s.  As to who should be responsible for them, I do not know.

1. I am repulsed at the concept that I should have to prolong this litigation in order to determine who amongst the adults responsible for the care of this child and spending time with her should be made responsible for what has happened.  I am repelled by that as being part of any further consideration and litigation in this case.  It will have to be dealt with on a purely financial basis.  I will make these orders but I reserve the question of payment of the supervision to the judicial officer who determines the next step of the financial proceedings.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate

Date:  29 October 2007