C & C

[2006] FamCA 701

[2006] FamCA 701

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  

AT MELBOURNE  NO. DGF 1621 of 2002 

IN THE MATTER OF:

MR C  (Applicant)

and

MRS C  (Wife)

and

CHILD REPRESENTATIVE

EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:              26 June 2006
Date of Judgment:            26 June 2006

Appearances:

Mr McCarthy, solicitor, instructed by McCarthy Hoey, Solicitors, on behalf of the Applicant (husband)

The Respondent (wife) in person

Mr Edney, solicitor, instructed by C E Family Lawyers, as Child Representative

1. This matter comes before me following a long history of case management.  The central issue this day however is to review interim orders for contact that were made by me in January 2006 for contact between the husband and the three children E who was born in February 1994, N who was born in April 1996, and S who was born in February 1998.

2. It appears to me that the progress of the contested applications has been a very helpful one for the parties through the process of case management and with the assistance of the court counsellors.  In particular, the recent report from Ms H dated 2 May 2006, following my orders on 27 January 2006, has been central to the events this day.  The purpose of that report was primarily to assess the issue of contact and consider future proposals including, but not limited to overnight contact.  It is clear that both the husband and the wife were in dispute about arrangements for contact and remained so even at the meetings they had with Ms H.

3. I do not propose to go through the background in any length, save to say that I have been assisted with the report of Ms H and the Case Outline presented by the Child Representative.  Mr McCarthy appears for the husband, the wife continues to appear in person and Mr Edney continues to appear as Child Representative. 

4. It is fair to say that Mr Edney has had considerable contact with the children and has been of assistance to the Court in the past, but more particularly to the parties.  I commend the wife and the husband in the dignity of their approach to the problem and their helpful communications with Mr Edney, notwithstanding the polarised position each took as to what contact the husband should have with the three children.

5. By way of additional background and in order to give narrative understanding to this short judgment, the parties were married in November 1992 and following substantial marital disharmony between them, finally separated in April 2001.

6. The arrangements pursuant to my orders made 27 January 2006 provided for the husband to have contact with the three children of an alternate Sunday between the hours of 10.30 am and 4.30 pm until February 2006, and then from 9.30 am to 6.00 pm.  Changeover was initially to take place at McDonald's, but more recently has taken place at the home of a Mr and Mrs W who have been assisting the parties.

7. Following separation, the wife re-partnered with Mr J, and her relationship with him has been a continuing one since February 2002.  That period records the commitment they each have for the other.

8. It is sufficient for me to only say that there has been considerable difficulties between the parties following their separation and I rather suspect there were considerable unresolved issues on the part of the husband and the wife, but particularly on the part of the husband.  Indeed, at one stage the husband did not have contact with the children for some seven months between June 2002 and January 2003.  By reason of such difficulties, in summary, contact was originally highly structured and supervised, but soon moved to supervision support.  That support is now being provided by Mr and Mrs W, and prior to them, by the Gordon Contact Centre.

9. Very much to the credit of the husband, he has appreciated the impact of certain problems and conduct on his part and attended, as I understand it, a Credit Program in November 2003, a Parenting Course in 2004, and a further course conducted by Relationships Australia for anger management.

10. In the latest report of Ms H, to which I have referred, the husband seeks overnight alternate weekend contact which he described as a "natural and appropriate" progression towards that which is usually ordered by this court, or made by consensual arrangement.  It was the position of the wife that the current arrangements should continue as they met the children's needs.  She claimed that it was “too early” for overnight contact to occur.

11. Although I had the advantage of this helpful report it provided me with only modest information about E, N and S as children in their own right.  In making this comment, I do not wish to be seen as being critical of the author.  The issue of Judicial interviews in this court is an evolving process and certainly one that I wholly embrace.  In the past I have delivered judgments in three matters in which I have conducted judicial interviews, namely A & D (2004) FamCA 879; K & K (2006) FamCA 126; and T & T (2006) FamCA 130. The question of appropriateness in conducting a judicial interview with children and its advisability can often be determined or recognized by the issues raised by the parties and from the contents of a court counsellor’s report. An examination of such a report and the issues can identify whether or not it would be appropriate for a judicial officer to interview the subject children.

12. As I have remarked in earlier judgments, the issue of judicial interviews with children has an interesting background. Rule 15.02 of the Family Law Rules 2004 (formerly O 23 rule 4 of the Family Law Rules) provides that a judicial officer may interview a child who is the subject of proceedings under Part VII of the Family Law Act (1975). Rule 15.02(2) provides that the interview may be conducted in the presence of a family and child counselor, a mediator or other person specified by the judicial officer.

13. The issue of whether or not to interview a child is discretionary and I accept that it has been the practice of most judges not to do so.  See KS v DS (1999) FLC 92-860 at 86,165. Of course there are strong reasons for caution, but circumstances may exist for a judicial officer to give appropriate consideration to interview a child or children such as age and their maturity. See ZN and YH and Child Representative (2002) FLC 93-101; B v B (Minors) (Interviews and Listing Arrangements) (1994) 2 FLR 489. As I said in A & D (supra):

    “6.The former Order 23, rule 4(4) provided that evidence of anything said at interview was not admissible in any court. However, it is noteworthy that this has been omitted from the new Rules leaving this issue somewhat uncertain. Although not pertinent to the circumstances confronting me, Rule 15.02(3) provides that if a child expresses a wish during the interview that is relevant to the case, the judicial officer may order a family report be prepared, presumably to enable material to be presented in admissible form. It can be seen that the authorities to which I have referred are authorities dealing with the judicial interview prior to trial …

    7.As a general observation, it is quite obvious, that questions of admissibility of statements or events at the interview, the weight to be attached to them, the suggestive impact they may have in any event upon a judge, and the inability of the parties to test these matters remain difficulties which may not be met by the provisions of the rules.  In this instance however, it was agreed by the parties that the court counsellor deliver a short report on the interview process which would not be subject to cross examination.”

14. In this matter, I have been impressed with the presentation and attitude of the husband and the wife during the case management process.  They have moved progressively forward.  They have been cautious and progressed with the concept of moderation as a guiding factor.  They are both concerned for the welfare of the children and have each presented themselves with consummate courtesy in court.  The wife appears in person and has conducted herself very well indeed.  She has been both thoughtful and respectful.  The husband too has attended all hearings with Mr McCarthy, and I commend him also for his presentation in court.

15. A reading of Ms H’s report made it clear to me that this was a typical case in which a judicial interview may be of assistance to the parties.  It reinforced the view that I had earlier in discussions with Mr Edney, Mr McCarthy and the wife.  Accordingly the parties urged me to adopt this process.  I saw the children following a discussion as to procedure which was facilitated with the assistance of Mr Edney.  They attended my chambers with him at about 9.30 this morning.  I spoke to Mr Edney first and he made it clear to me that the children were “keen to see” me, and that they were “quite comfortable” with the process.

16. The children were ushered into my chambers and any sense of foreboding that I had was quickly put at rest by them.  They were simply delightful.  I asked them how they felt about the process and E responded by saying that she felt "pretty cool" about talking to me.  N made it clear that he was "not nervous", and S, who had a sense of sparkle about her beyond her years, was quick in vocalising that she thought it was "excellent, awesome".  In those circumstances, I had no doubt that the children were very much at ease.  I spoke to them for a while about general events in the community that are topical, such as the current World Soccer and AFL football.  

17. In formulating the process to be undertaken today, it was common ground that Mr Edney would be present, that he would make notes and assist me generally, if necessary, during the course of the interview.  All parties agreed to this and felt comfortable with the process.  Mr Edney was present and following the interview conferred with and explained to the parties what took place at the interview.  Subsequently, in order to formalise the arrangement in the event that the parties failed to achieve a resolution, and as agreed with them, Mr Edney addressed me in open court of his observations of the interview.  All of that has been recorded on transcript which I have ordered be placed on the court file and made available to the parties.

18. I return now to my interview with the children.  Much of what was said has already been addressed by Mr Edney.  However, there are some additional matters that I would like to add, which include certain comments of the children and otherwise my own observations of them.

19. I will deal firstly with E who commenced by saying she felt a little "uncomfortable" if contact with her father was unsupervised.  I explored this issue with her in general terms and I then understood that she was referring to the past when there had been supervised contact.  That role is now one whereby Mr and Mrs W are present, in a general sense.  E presented as quite a mature girl.  She made direct eye contact with me, and I found her to be very impressive.  When I asked her whether she was “happy at school” (B Primary School), she replied that she was “not really happy” there, and became a little teary.  She said that none of her friends “played with her”, but quickly made it clear that she was happy at home.  In the course of discussion this morning with the wife, she was aware of this issue and I have no doubt that her care of E is such that she is alert to any problem and has it well under control. 

20. E spoke about Mr J, the wife's partner, making it clear that he was "nice to [N]", suggesting that he had a better rapport with him than with the two girls.  I may be wrong on that, but I do not think it matters.  E discussed generally with me her future plans.  When I asked her whether there was anything she would like me to tell her parents, she responded by firmly asserting, "Yes, I'd like you to say 'I love you, mum and dad’."

21. There was no differentiation in her expressed affection for her mother and her father.  She spoke positively and respectfully about them both, and proudly told me how hard her mother “worked”.  She discussed the current changeover arrangements for contact.  I asked whether her father “talked about” her mother as that was an issue that was addressed in the parties' affidavits and in the family report.  E said that “he does”, but that it did not worry her.  She said, "We get out of it and just simply change the subject”.  The impression that I gained was that there had been conversations generated by the husband with the children, perhaps inquiring about their mother, and if that is so, it should cease.  But whatever the current position, the children handle it quite well and are not unduly disturbed by it.

22. Now dealing with N.  He said school “was okay”, that he had “good friends” and particularly liked mathematics.  He made it clear that he was happy at home and said, "When I'm with dad I feel happy too”.  He said he liked seeing his dad "a lot" and that he loved him.He said “I like seeing him.  I don't really see him enough.  I would like to see him every day.  I don't see him enough".  He then went on to say, when reflecting upon what he had said, "Look, that's silly because I can't because I'm with mum," and then he said, "I really mean every weekend".  From my discussion overall with N, I have no doubt that he is very comfortable with his father.

23. When I asked him about staying overnight with his father, N said, without any hesitation, "That would be cool".  I was alert to detect any hesitation, but he made his view very clear.  E went on to quickly intercept by saying, "Well, that would be up to [Mr and Mrs W]".  That would be suggestive of the involvement of Mr and Mrs W which will require consideration.  N made it clear to me, as did his siblings, about his feelings for his father.  He said that he loved “his dad”.  I asked him why to which he said, "Because he's my dad", "Because he's good to me," and he went on to say, "And he's from Italy".  He said that he would like to see his father “a lot more”.

24. S was a sparkling, excited little girl, and I suspect that she is going to be a leader in the future.  She was strong, assertive and had a sense of perception and maturity beyond her years.  S was very comfortable and straightforward in what she had to say.  When I asked her about the interview, she being the youngest, she said, "I was excited to see you"; "I was not really scared.  I was not scared at first".  She made it clear to me that she welcomed the opportunity to participate in the process which I found most encouraging.

25. When I asked her to tell me about her father, she said, curiously, "He's black", "He's mine”, and then said, "I love him and he's my dad," and "He's good to me”.  E quickly interrupted and said, "Very good".  That suggested a commonality between the children and an expression of the positiveness of their relationship with their father.

26. When I asked her to tell me about her mother, S said "She's lovely", that she loved her and that "she's good to us."  E again quickly added by saying, "Very good to us".  S made it clear to me that she was happy both at school and at home.  I take the rather quotidian view that happiness at school is very much a product of children being happy at home and within themselves.  Accordingly, despite the difficulties between the husband and the wife, these children have survived, and the impression that I obtained from the interview process was, with respect, far more helpful than the impression I obtained from the report.

27. During the interview I drew Mr Edney into a number of issues which concerned overnight contact.  I sought to investigate whether or not one child by himself or herself could attend overnight contact alone and then build up a regime for all the children as a group.  However, they made it clear that they preferred to attend contact with their father together, or with friends.  They do have a sense of co‑dependency with each other.  They said, on the other hand, "If our friends came that would be 'cool' and 'awesome'" to have overnight contact with their father.

28. I had no sense of doubt about their response.  There was no hesitation in the way the children responded to the issue of overnight contact, or of any concern, except when E talked about “The Grudge” which transpired to be a film.  All the children made it clear that they felt “safe” with their father.   When I then said, "Your dad loves you all very much, as I see it," S immediately said "Dad's a very excellent man."  I was most impressed with that statement.

29. It seems to me that Mr and Mrs W have played a helpful and significant role in the lives of these children and have been a great help to them.  They have three children of their own, a son of six years, a daughter of eight years and a younger daughter who is four years of age.  There was general discussion about whether "the sleepover" could be at their home, and they felt it was okay to go there overnight.  In the result however, it transpired that they happy to go to their father's home for overnight contact.  The children worked out a three-week cycle namely, week 1 from Saturday to Sunday, week 2 on a Sunday and week 3 they remain at home with their mother.  In relation to their father's house, N said, "It's so cool” and "I wouldn't be scared". 

30. I understand that Mr J has a child with whom he has contact and it is important that the arrangements for the overnight contact he established in such a way that such contact takes place to accommodate her needs and arrangements too.

31. Overall, I found the children to be both enjoyable and agreeable.  They were courteous, expressive, and each reflected their individual personalities.  It is patently clear to me that they greatly love both of their parents.  Having regard to what I know of the background, I do not think the problem lies with the children, but rests with the husband and the wife to be more trusting, cooperative and helpful to each other.  I have little doubt that the children were clear in their wishes, that they were a united force and had both direction and focus.  Any overnight contact in this case is not an issue of experimentation, but of implementing what the children have expressed to me with clarity.  It is up to the parents to make it work and demonstrate goodwill, dignity and commonsense.

32. I gained much from meeting these children.  They are a credit, despite the misfortunes of their parents' relationship in the past, to both their mother and father.  I am confident that both of them are very proud of the children, and it is clear that despite the frailty in their relationship post-separation (and immediately prior thereto), the three children survived and are able to openly express their love and devotion to their parents.

33. In my view, the husband and the wife should now capitalise on this positive foundation and work towards a cooperative future in terms of the children's contact with their father.  This day, with the assistance of the children, should be seen as the beginning of a new domain and the parties should now actively work together to ensure that the contact arrangements are a productive and happy experience for them.  Each parent must understand the importance of presenting themselves to their children by positively promoting the absent parent.  The time, in my view, for recrimination is now long past.  If this was undertaken, I am confident that the future with these children is going to be a positive and happy one.

34. I have had the advantage of considering a decision of Nicholson CJ in ZN v YH (2002) 29 Fam LR 20, and particularly the learned Chief Justice's observations at paragraphs 105-112. There is one point, however, to which I wish to draw attention, that is, at paragraph 107, his Honour had this to say:

    “Writing extra-curially, Chisholm J draws attention to the fact that O 23 r 4 of the Family Law Rules provides that the information given in what are termed ‘interviews’ is confidential and thus the judge may act on information that is unknown and untestable by the parties:  see (1998) ‘Children's Participation in Litigation’, paper presented at the Third National Family Law Conference, Melbourne, Australia, October 1998.”

1. That was the position until the Rules were amended in 2004.  Firstly, I am of the view that the process of judicial interviews is one that should be embraced by the court.  However, as a matter of caution, it should only occur in cases that are appropriate for such a process which should be selected with careful attention to the discrete facts and circumstances available within the fabric of the case.  However, there are those few cases that are appropriate, and this is one, where judicial interviews can be of great assistance.  The issue of confidentiality and matters such as that can be answered by establishing an open procedure under which the interview is to be conducted.  In each of the three cases I have dealt with thus far, I have regulated the process with the consent of the parties.  If there were to be no consent to any one step of that process, I would not have proceeded to conduct the interview.  I assessed the parties and also assessed their practitioners as I did the Child Representative. 

2. When it is made clear that a judicial interview is appropriate, and that can be readily determined also from the welfare reports and the affidavits of the parties, then there is no problem, in my view, concerning the issue of confidentiality.  It is an open process the terms and procedure of which has been agreed to by all parties.  There is no confidentiality attached and there is no secrecy.

3. If parties do not reach an agreement following the judicial interview then the contested applications continue in the normal course.  It is absolutely unnecessary to entertain an application that a Child Representative be called and cross‑examined on his report of the process.  If such an application were requested in my court, it would be rejected.  In any event, in regulating the procedure I make it quite clear that the report of the Child Representative is to be delivered and that there would be no cross‑examination upon it.  All that is being reported by the Child Representative are “facts” relating to the interview, followed by my own comments which are incorporated in the transcript, and where appropriate, a judgment.

4. In my view, the future of this court, insofar as child welfare matters are concerned, will be greatly assisted with judicial interviews so long as they are properly conducted, that the procedural disposition is agreed to and that the parties embrace the concept.  That calls for an assessment by the judicial officer.  I had no hesitation in having this interview with the children.  Although the husband had had difficulties in the past, as referred to in the report, he has received the helpful assistance of Mr McCarthy, a solicitor greatly experienced in this jurisdiction.  I have assessed the wife over the last year as a very competent, caring individual who presents well in court and was always looking for a resolution.  She is a caring and loving mother.

5. The parties have now negotiated Minutes of Proposed Consent Orders which embrace the children's wishes.  I congratulate the wife, the husband and their practitioners and I am particularly grateful for the assistance of the Child Representative in coming to this resolution.  The proposed orders take the matters forward to October 2006 and prescribe the days on which the children are to see their father.  It will take account of exigencies, such as birthdays and matters like that.  It brings the children into their father's house and gives them the experience of sharing their life with him. 

6. It returns to me, if necessary, on 30 October 2006.  There are two alternatives that may occur on that date.  If the orders do not work, then it remains open for further consideration.  If they do succeed, then my expectation is that I will be presented with final consent orders signed by all the parties, which I will make in court.  That will end this matter.

7. I mark the minutes of consent orders Exhibit “A”.  I make orders in terms of Exhibit “A” and direct the husband's solicitor to engross the orders.  I will further direct that my extempore judgment be transcribed, that a copy be placed on the court file and made available to the parties. 

   I certify that the preceding 41 numbered
    paragraphs are a true copy of the
   reasons for judgment herein of
   the Honourable Justice Guest.
   
   
   
   
   Associate to Guest J

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