Cordone and Bay

[2009] FamCA 782

FAMILY COURT OF AUSTRALIA

CORDONE & BAY [2009] FamCA 782

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth) s 65L

C & C (1996) FLC 92-651
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Cordone

RESPONDENT: Ms Bay

INDEPENDENT CHILDREN’S LAWYER: Mr Shine

FILE NUMBER: BRC 10581 of 2008

DATE DELIVERED: 17 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Falcke
Sempre Verro Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Stewart
East Coast Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Shine
Derek & Dwyer Lawyers

Orders

IT IS ORDERED THAT:

1. The matter be adjourned to the Magellan Directions Hearing at 10.00am on 12 February 2010 in the Brisbane Registry of the Family Court of Australia.

2. Pursuant to Section 65L of the Family Law Act the father spend time with the children J born … January 1999 and W born … September 2001 and such time to be supervised by Family Consultant Ms O or such other Family Consultant nominated by the Manager, Child Dispute Services at such times and such duration and with such frequency as Ms O can both accommodate and considers appropriate, for a period of approximately six months.

3. It is requested Ms O to prepare a report for use at the proceedings on 12 February 2010 outlining her observations and opinions emanating from the s 65L process contemplated by these orders.

4. Pending written agreement between the parties or further order of this Court the mother is restrained from referring to the children by any name other than the name on the children’s respective birth certificates.

5. The Independent Children’s Lawyer have leave to issue subpoenae to the Queensland Police Service, Victorian Police Service and Department of Community Services (Child Safety).

AND IT IS DIRECTED:

1. Before issuing a subpoena to the Department of Community Services (Child Safety) the Independent Children’s Lawyer is to await receipt of the report prepared by that Department pursuant to s 69ZW of the Act and to consult with the Department with a view to ascertaining what documents are available on the Department’s file.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10581 of 2008

MR CORDONE

Applicant

And

MS BAY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The central concern of the current proceedings, which arise in the context of the matters managed within the Magellan list of cases in this Court, concerns the best interests of J born in January 1999 and who is therefore about 10 and a half, and W born in September 2001 who is therefore about 7 and a half.

2. The restrictions inherent in any application in respect of parenting orders which is to be determined on an interim basis before allegations have been properly detailed, challenged, and tested, and findings made about them, is both obvious and has also been commented on by decisions of this Court including for example, in C & C (1996) FLC 92-651 and in the post Reform Act context, Goode & Goode (2006) FLC 93-286.

3. The problems inherent in that process, and the restrictions it places upon a Court, and what a Court can do, are all the worse in this case because of what Ms O (who is a family consultant attached to this Court) has said in a family report dated 15 June 2009.  She describes the:

   Vast discrepancies in the stories between [the father] and [the mother] in this matter.

4. Ms O goes on to say that those vast discrepancies:

   Not only provides information about how each party copes with stress in their life (their personal coping styles) but also valuable information to make hypotheses about the parties' future post-separation parenting relationship. 

5. Ms O goes on to express the opinion that:

   In general it appears that [the mother] becomes significantly hyper-aroused when faced with stressors in her life and has a tendency to catastrophise whilst [the father] appears to employ avoidance and denial strategies to cope with stressors in his life. 

   She goes on to say:

   These differences are relevant in predicting these parents' individual capacities to share the care of their children.  It is my opinion that without changes in one or both parties' coping styles and stress management skills that these two parents do not adequately demonstrate the qualities necessary for parents to effectively manage a shared care parenting arrangement.

6. A very significant factor in the current proceedings and the instant application before me is that the father has not seen the children for about two and a half years, save for the purposes of the family report to which I have just referred.

7. The allegations made against the father are serious.  It is suggested that criminal charges are currently under investigation and are not yet complete.  The father says that he has heard nothing about any such criminal charges.  The mother asserts that the police continue to be in the process of obtaining statements and the like and that charges are likely.

8. Whether charges are likely or not, it is plain that the mother makes a number of serious allegations about the father and, as a result, suggests that the children are at significant risk from him.  It needs to be emphasised that, at this stage, those matters are but allegations.  The "vastly different" account referred to by Ms O given by the father is that no such behaviour occurred. 

9. These acute factual allegations and counter-allegations are the stuff of trials.  At a trial, evidence will be presented, tested, and ultimately assessed so as to make findings about these serious matters.  In the absence of cogent evidence not seriously challenged or otherwise admitted by each of the parties, the Court must proceed on the assumption that neither the allegations nor the counter-allegations are made out. 

10. Equally, the Court must proceed on a what I respectfully consider to be an appropriately conservative basis in predominating the best interests of these two boys until such time as those allegations and counter-allegations can be determined at a trial.

11. It is of considerable significance to note that Ms O, having had the opportunity to talk to these two boys, provides an opinion that:

    The ages of the children means it is important to consider their desires in this evaluation.  Although it is clear that both children are bonded to their mother as their primary caregiver and want to remain living with her it is my opinion that both children would like to spend time with their father again.  [W] especially demonstrated an eagerness to engage with his father, whilst [J] although more reserved in his manner towards his father was eager to reconnect with his paternal grandmother.  When the children saw their father neither child reacted as if they were reliving a personal traumatic experience, even one buried deep in their early experience.  It is important to remember that neither child had seen their father for over two and a half years and [W] in particular was still preschool aged when he last spent time with his father.  Thus it is my opinion that the main barrier to these children redeveloping an attachment to their father is the children's knowledge that their mother fervently does not want them to have anything to do with him.  It is as though the children's attitude are influenced by thinking that liking their father is a direct rejection of their mother.

12. Needless to say, based on the admittedly limited knowledge that I have of the substantive allegations made by the mother, I infer that she would contend that there is a solid foundation for any such attitude by her toward the father.  In that respect she alleges violent and inappropriate conduct by him toward her over a period of time. 

13. Equally, however, that conduct is denied in all respects, it seems, by the father.  It is simply impossible to make any findings about who or which version should be preferred in the context of these interim proceedings.

14. Notwithstanding the inability to make findings about those matters in these interim proceedings I would not order time between the children and their father if I considered that there was good evidence before me to suggest that, given the lengthy period of time that has elapsed since they have seen their father, they would not benefit by re-establishing a relationship with him.

15. It seems to me that, untested though it might be, the independent evidence from an expert, Ms O, provides sufficient foundation for me to feel confident that the attempt to re-establish a relationship between the children and their father is consistent with their desires and in their best interests. 

16. However, it is not possible for me to conclude that any such desire or any such interim determination of their best interests is such as to alleviate or eliminate any risk to them posed by the serious conduct alleged by the mother either toward her or toward the children themselves.

17. Accordingly, I propose to proceed with significant conservatism and I propose that all time between the children and their father be strictly supervised.  In that matter both the children and the mother, acting properly and rationally, can be satisfied that such time as the children spend with their father will occur in circumstances where they are completely safe.

18. In that way it seems to me that, pending the determination of these serious contested vastly different factual accounts, I balance the benefit which children have from having a meaningful relationship with both of their parents post-separation and the other Objects and Principles enshrined in the Family Law Act on the one hand, and, on the other hand, the alleviation of any risk posed by any such conduct.

19. It seems to me that the notion of risk is a broad concept when children are concerned and, if I was satisfied, albeit on an interim basis, that the children were likely to be significantly traumatised by being brought into contact with their father then I would not order the time, albeit that it is supervised. 

20. However, I am sufficiently satisfied by the independent opinion expressed by Ms O that, provided the children can be satisfied that they are safe, and provided the mother can be satisfied that they are safe, they desire and need to develop a relationship with their father.

21. The independent children's lawyer suggests in accordance with recommendations made ultimately by Ms O that the children spend time with their father supervised either by the paternal grandmother or alternatively a contact centre.

22. Whilst such recommendations might seem to be consistent with the overall view of the matter which I have outlined I am aware of the fact that much remains unknown in terms of each of the parties. 

23. In particular, the independent children's lawyer has arranged, in accordance with Ms O’s recommendation, for each of the parties to be assessed by a consultant psychiatrist and there is at least the possibility, I gather, of criminal charges as I have earlier referred to.  Furthermore, a report from the Department of Child Safety relating to that Department's involvement with the family is due shortly.

24. In light of those additional pieces of information, some or all of which are likely to be important with respect to ultimate findings about the children's best interests, including interim findings, I propose to proceed with particular caution by ordering that time take place between the children and their father within the context of an order made pursuant to s 65L of the Act in respect of which I will request that Ms O be the supervising family consultant.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate

Date:  31 August 2009