Brown and Sidebottom

[2010] FamCA 952

FAMILY COURT OF AUSTRALIA

BROWN & SIDEBOTTOM [2010] FamCA 952

FAMILY LAW – CHILDREN – Interim – Suspension of contact

APPLICANT: Ms Brown

RESPONDENT: Mr Sidebottom

INDEPENDENT CHILDREN’S LAWYER: Mary Lonergan

FILE NUMBER: MLC 3166 of 2008

DATE DELIVERED: 8 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the mother’s Application in a Case filed 5 October 2010 shall be and is hereby dismissed.

2. That until further order of this Court the mother shall be by herself, her servants or agents, restrained from telephoning the children Y born … May 1997 and A born … June 2000 on any landline or mobile telephone owned by them or their father.

3. That paragraph 2 of the orders made on 29 September 2010 shall be discharged.

4. That the applicant shall file and serve any further affidavits upon which she seeks to rely at trial no later than 1 December 2010.

5. That the respondent shall file and serve any further affidavits upon which he seeks to rely at trial no later than 14 December 2010.

6. That the ICL shall file and serve any further affidavits upon which she seeks to rely at trial no later than 15 December 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3166 of 2008

MS BROWN

Applicant

and

MR SIDEBOTTOM

Respondent

REASONS FOR JUDGMENT

1. This case is due to be heard before me in the week of 24 January 2011.  In the meantime, the mother has filed an Application in a Case.  It was filed on 1 October 2010, and effectively seeks twice daily telephone contact with the girls, 13-year-old Y and 10-year-old A, who live with their father.  Her application is supported by an affidavit with a number of attachments.  It was also filed on 1 October.

2. The father was served only late yesterday but he has been prepared, nevertheless, to have this matter dealt with today.  He has made short submissions.  There is no affidavit from him but there is very little relevant factual dispute in any event. 

3. The Independent Children’s Lawyer has counsel here today.  The ICL supports the father’s position that there should be no telephone contact between the mother and the girls between now and the January hearing.

4. The case has a very long and complex history.  For many years the mother has been telling the Court and others that the father has sexually abused and exploited the girls.  Her claims are very serious including, as she told me on the first day of the LAT on 27 July 2010, that she believes he had performed oral sex on them or caused them to do so on him, that he had raped Y aged 12 at the time, and that he had sold pornographic images of the girls on the internet.  That is just a short synopsis of her concerns.

5. Although I do not yet have all the material that I will need to hear the case to conclusion, and naturally the material cannot be properly tested at this stage, at least I do have the benefit of a recent Family Report prepared by Ms W on 30 August 2010. 

6. Ms W described two delightful young girls who, in their father’s home, are progressing well socially, academically and with their sport.  She described them as thriving with their father, his partner and their little three-year-old half sister, L.  The girls are, however, openly hurt, saddened and angered by what they describe as their mother’s “weird behaviour”.  Y simply refuses to see her mother at the moment.  A, according to Ms W, is also too anxious to spend time with her.  Both girls though want her to, as they put it, “accept treatment and to get better”.

7. Ms W’s recommendation is that until the mother is able to establish that she is addressing the issues that are impeding her capacity to relate to her daughters so as to provide a physically and emotionally safe environment, there should be no contact at all. 

8. There is a report or several reports, from Dr K, psychiatrist.  He raises issues about the mother’s psychiatric health and/or personality disorders, although at this stage, without one simple answer.  His evidence will no doubt require expansion and testing at trial, but it raises enough issues to set a backdrop to how the girls say they are experiencing their mother’s behaviour.

9. Telephone contact was suspended by Senior Registrar FitzGibbon on 24 February this year, until further order.  It was further suspended on 5 May 2010.  In addition, a final intervention order was made on 23 August 2010 against the mother, and in favour of the father and the girls.  Part of that order was precluding the mother from communicating in any way with the father or the girls.

10. It seems, from what I have heard this morning, that despite the orders, the mother has continued to telephone the girls twice per day and certainly she concedes one of the calls in her affidavit.  It also seems that the girls have for many months refused to take her calls.  In addition, the ICL spoke with them yesterday.  They expressed the clear view that at this stage they want the telephone calls to stop. 

11. What the mother says in her current affidavit is important.  First, she says that the father agreed to telephone contact continuing at the hearing on 24 February 2010.  She attaches a transcript.  It looks as though counsel did indeed say that to the Senior Registrar but, as I have noted, the Senior Registrar, nevertheless, did suspend the telephone contact. 

12. She admits to making a subsequent threatening call to the father.  She says she apologised.  She says that she in fact did not wish to harm him.  She only wants her daughters to be safe.  She says, ‘To err his human, to forgive divine.”   The mother is due to appear in the Magistrates Court, I note, in a few days, on 12 October, on a charged breach of the intervention order arising, it seems, from that telephone call. 

13. In her affidavit, the mother then sets out her reasons for wanting to call her daughters every morning and every night, summarised as follows.  It is to ensure their safety, for them to exercise their right of self-determination in deciding whether or not to speak, to show her unconditional love, and in the hope that they will, at some time in the future, choose to speak to her.

14. I am satisfied that – although I retain an open mind as to what will be in the girls’ long-term best interests – until I have had the benefit of hearing all of the evidence tested, it is in the girls’ short-term best interests to be free of the stress of these calls.  I do not propose changing what has been achieved or endeavoured to be achieved by Senior Registrar FitzGibbon’s suspension of the telephone contact, and then the intervention order.

15. The material shows me, at least on face value at this stage, that the children are yearning not to engage in the calls right now.  Their mother’s expressed reasons for calling seem to feed the anger, sadness and frustration experienced by the girls, as eloquently stated by them to Ms W.  Of course, this will all be reviewed shortly and I might have quite a different response to the evidence overall.

16. Rather than simply suspending an earlier order for telephone contact, I am going to specifically make an order that there be no telephone contact so that it is clear on the face of the orders.  It becomes difficult for everyone, if they cannot see that an issue has been specifically addressed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 8 October 2010.

Associate: 

Date:  8 October 2010