Clarkson and Felwood

[2009] FamCA 1151

FAMILY COURT OF AUSTRALIA

CLARKSON & FELWOOD [2009] FamCA 1151

FAMILY LAW – CHILDREN – Interim

APPLICANT: MR CLARKSON

RESPONDENT: MS FELWOOD

INDEPENDENT CHILDREN’S LAWYER: MR EMERSON, SOLICITOR

FILE NUMBER: TVC 1547 of 2007

DATE DELIVERED: 23 NOVEMBER 2009

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: BARRY J

HEARING DATE: 23 NOVEMBER 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Madsen, Solicitor of Rod Madsen Solicitors appearing by telephone for the Applicant Father

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Emerson, Solicitor of Emerson Family Law appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The Mother’s Application in Form 2 filed 20 July 2009 be dismissed.

2. The Order made 5 June 2009 staying paragraph 4 of the Consent Order of 30 October 2008 be lifted.

3. The Mother and Father given leave to appear by telephone at the case management hearing listed at10.00 am on 14 December 2009.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 1547 of 2007

MR CLARKSON

Applicant

And

MS FELWOOD

Respondent

REASONS FOR JUDGMENT

1. This matter has a lengthy litigation history.  There was a trial before Mushin J in the Family Court of Townsville in October last year.  The mother who was the applicant was not legally represented.  Mrs Pack of senior counsel represented the father and Mr Fellowes represented the Independent Children’s Lawyer.

2. After two days of hearing, consent orders were entered into whereby the father was given sole parental responsibility for the children and the children were to live with him.  The father was to be solely responsible for medical and health matters, matters relating to the education of the children, matters concerning the social development and sporting activities of the children, matters concerning religion or faith of the children.

3. Paragraph 4 provided that the father was to keep the mother informed of medical and health issues and educational issues.  The mother says, on today’s date, that hasn’t happened but she’s prepared to have that order reinstated as a means of obtaining some form of information because, as it presently stands, the mother has no right to approach the children’s school, no right to approach the hospital or medical authorities or otherwise take part in sporting activities of the children or their social development.  There were other orders made by consent on 30 October last year for the mother to see the children, depending where she was living at the time, but they provided for a reasonable regime of contact.

4. There appears to have been an incident – I won’t put it any higher than that at this stage – in early June this year, when the children were not returned to the father.  That material is canvassed in an affidavit of the father, sworn 5 June, seeking a recovery order.  The matter came before Bell J on 5 June in this registry.  Bell J made orders for a recovery order to issue.  There was also orders staying paragraphs 4, 5, 6, 7, 8, 9, 10, 13, 14, 15 and 17 and notation 1 of the orders dated 30 October 2008.

5. On today’s date there is argument that the stay of Bell J of paragraph 4 of the orders of 30 October be lifted.  The notation to the order of 30 October was as follows:

   “It is the intention of the father that the children will have weekly access to a computer to access, read, create, send emails to the mother.”

   That notation is no longer in force as it was suspended by Bell J and I’m not asked to, in any way, lift that on today’s date.

6. The mother filed an application on 20 July seeking orders that the children reside with her and she be fully responsible and that the father only see them on the recommendation of a psychologist.  When I asked her who the psychologist was to be she nominated some woman at the C hospital.  The court would not be minded, in any circumstances whatsoever, to delegate its power to a person unknown, who hasn’t agreed to be involved in the case in any way, shape or form.

7. The mother’s application, I would have to observe, which is seeking interim orders, has to overcome the hurdle of the principles set out in the well known case of Rice & Asplund, which says, in effect, that if there are orders in place there has to be, before a court will allow the case to be re-opened, significant changes in the children’s situation.  That is a principle which is self obvious to stop the court door being treated as a revolving door where a litigant, being dissatisfied with a decision, can suddenly re-emerge into the court and bring yet another application.  This litigation has been going on for more than five years, although I note that the current litigation has a 2007 number it is obvious, from the material, proceedings were extant prior to that time.

8. The mother’s affidavit makes a series of very serious allegations about the father’s treatment of the children.  She appears to make even more serious allegations about the father’s partner, Ms Clarkson.  She annexes letters from the children to her affidavit, which she says were written whilst the children were in her home in March of this year.  Exhibit 1 in the proceedings before me consists of a further letter written by the child A to “The Judge”.  The mother says that was written on 18 October this year, a little under one year since the consent orders were made by Mushin J in the Family Court in Townsville.

9. I note one of the matters that was not the subject of agreement on 30 October was the registration of the children’s names and it was ordered at that time the children’s names were to be registered under their father’s surname. 

10. The mother, on today’s date, produces a letter from the Department of Communities of 29 June 2009.  In that letter it makes reference to a complaint raised by the mother and it says, in the fourth paragraph on page one:

    “- -…I understand that you have advised Ms [B] that circumstances have now changed.  I understand that both you and your ex-husband agreed with the CSSC’s – (that’s the Department of Communities Child Safety Service) – recommendation that the children be placed back into your care and this occurred on 1 June 2009.”

    It’s not for me to make any final determination, at the present time, on factual matters but viewing the fact that a recovery order was sought some four days later it is likely the statement made by the mother to the Department of Communities was inherently improbable.

11. A section 91B report was ordered on 22 July 2009.  I assume that was as a result of a direction, or an order, by a registrar.  The Department has provided a report and a summary of previous notifications.  Under the heading, Current Departmental Assessment and Contact with Family, it is noted:

    “On 8 April 2009 additional notified concerns was received which recorded concerns that the subject children were exposed to abusive or destructive parenting patterns through the mother’s constant criticisms of the father and his spouse and this has resulted in the children displaying symptoms of emotional harm such as being withdrawn behaviours and being unsettled.

    It has been assessed that [the mother] is primarily responsible for this harm as evidenced by her continued and prolonged vexatious complaints to police and the Department, regarding the well being of her children while in their father’s care.  Evidence of this includes contradictory information provided by the agencies involved, ie police that do not support mother’s allegations.

    It has been determined that these actions have a significant emotional impact of a detrimental nature on the children as evidenced by information from the children’s school, increased conflict in the family home between the subject children and their father and mother and the observable emotional withdrawal of the children in their normal living arrangements.  It has been determined that the conflict in the adult relationships has impacted significantly on the children.”

    It goes on to say:

    “It has been determined that [the father] is also responsible for harm to his children by his inability to pursue a Family Law Court Order seeking modifications to contact order.”

    I pause there to say that appears to me to be code to the father saying you should be seeking orders that the mother not have any dealings with her children whatsoever.  I may be wrong in my interpretation as to that but I can say that, if the allegations set out in the father’s material and the material of the affidavit of the mother be correct, the mother is at serious risk of two things happening: 

    i.no communication at any time in any situation with her children; and

    ii.prosecution for contempt and/or contravention of orders. 

    The penalty for that could be as serious as imprisonment if the emotional harm caused by such conduct was found to be established and the mother was seen to be blatantly breaching ongoing court orders.

12. The report continues – and this is a report commissioned by the court from a major government department.  The last paragraph on page 2:

    “It has been assessed that the allegations against [the father] pertaining to his care of the children are unfounded but his inability to ensure the children’s future protection places the children at ongoing risk of harm.”

13. Who is he failing to protect them from?  Their own mother.  I had my attention drawn to a report of Mr W, annexed to his affidavit, filed on 18 September last year.  Clearly this evidence was before Mushin J when he was asked to make consent orders.  In that report Mr W says:

    “I found nothing in my clinical examination of [the mother] which would suggest that there are any mental health issues which would impact in any significant manner upon her capacity to provide for the daily care of her children.

    There is clearly a great deal of anger and animosity still current within this woman concerning her ex partner and the father of the children.  This does appear to have the capacity to cause heightened levels of anxiety in this woman but not to the point where it becomes an anxiety disorder.

    It is also quite likely that it has had some form of detrimental impact on the messages, be they verbal, non-verbal or indeed subliminal that she would be sending to her young and impressionable children.

    Experience has shown that only a resolute, committed and vigilant approach from a person with such adverse and strong feelings and emotion towards another person can ensure these feelings are not intentionally or unintentionally transmitted with influence over a young child.  The level of anxiety found both at a clinical level as well as from the anecdotal level suggest that that sort of application would be perhaps beyond her abilities.”

14. There has been a fourth or fifth report from Ms P.  The report is dated 27 July 2009.  I have had regard to that report.  The applicant mother has made scathing comments as to Ms P’s abilities, her objectivity in the matter, her competency etcetera.  For present purposes I accept Ms P is a report writer with an honour’s degree in psychology and a bachelor in social science, who is perfectly familiar with this case.  Under the heading, Recommendations, of her latest report, paragraph 212, she says:

    “In the event the children were to resume living with [the mother], the writer is of the opinion [the mother] will continue to obstruct the children’s relationship with [the father] and his family.  On that basis, the writer recommends that the children live with [the father] and that he be granted sole parental responsibility.  This is consistent with the October 2008 report.”

15. It is also consistent with the consent orders.  The very consent orders that the parties entered into on 30 October last year.  Paragraph 213:

    “In contrast to the previous assessment the writer recommends that the mother be restrained from spending time with the children for at least the next two years.”

16. It’s unlikely I’ll be dealing with this matter in the future.  If the mother’s conduct was to continue in its present vein it’s almost as certain as night follows day that the recommendations of Ms P will be put in place.  If that sad state of affairs comes to pass the mother will have no-one to blame but herself.  It’s a matter for her.  I propose to put in place consent orders, on today’s date, that the parties, and I commend them for agreeing to it.

RECORDED  :  NOT TRANSCRIBED

1. What I propose to simply do on today’s date is to dismiss the mother’s application filed 20 July this year.  Adjourn the matter through to Murphy J. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 23 November 2009

ADDENDUM TO JUDGMENT OF JUSTICE BARRY
DATED 23 NOVEMBER 2009

The Court had been advised that the parties were agreeable to a psychiatric assessment being carried out and other procedural orders.

After I had given a summary of the situation in paragraphs 1 to 16 the Mother engaged in an outburst resiling from any consent arrangements.  She then proceeded to storm out of the Court.

In view of the matters canvassed in paragraphs 1 to 16 and on the urging of the solicitor of the Father and with the consent of the Independent Children’s Lawyer I made an order dismissing the Mother’s Application in Form 2 filed 20 July 2009.